S. S. BYAS, J. - (1.) THE petitioner is a father and he has filed this habeas cor-pus petition for releasing his daughter Kumari Usha Khandelwal from the Rajys Mahila Sadan, Jaipur,
(2.) BRIEFLY recalled the material facts are, that Usha Khandelwal, daughter of the petitioner was living with him in Bhilwara. On 2 9 89 Usha came ont of the house and did not return thereafter. The petitioner made inquiries and learnt that when Usha came out of the house, she was abducted by Pradeep Kumar, Sheru- Jamilluddeen and Murari Agrawal. They took her forcibly on a scooter. It is further, stated that the petitioner went to Police Station, Kotwali (Bhilwara) on the same day and lodged a written report of the incident The police registered a case and proceeded with the investigation On 6 9 89 Usha appeared at Police Station Kotwali, Bhilwara and las taken into custody She was produced before the Judicial Magistrate, Bhilwara on 7. 9. 89. Learned Magistrate passed an order Annexure 1 and sent Usha to Rajya Mahila Sadan Jaipur. She was thereafter brought to Jaipur and is now living in Rajya Manila Sadan, Jaipur under the orders of the Judicial Magistrate Her statement under Sec. 164 Cr. P. C was recorded on 22. 9. 1989. It is contended that Usha is a minor and her custody should therefore, be deliverd to the petitioner, who being the father, is her natural guardian. On 18. 10 1989 Usha was called from Rajya Mahila Sadan and her statement was recorded. She expressed her desire to go and live with Sheru @ Jamiliuddeen A notice was, therefoe issued to Sheru @ Jamilluddeen. He filed his affidavit stating therin that Usha renounced Hindusim and embraced Ishlam and executed an agreement on 4. 9. 1989 to live with him as his wife. A photo-stat copy of the agreement was also filed by him. The police authorities, Bhilwara filed an affidavit stating therein that the case has created mounting communal tension in the town and when the Judicial Magistrate passed the order on 7. 9. 1989,large number of people belong-ing to the two communities of Hindu and Mushlim gathered in the court premises. It would be useful to state here that on the directions of the court, Sheru @ Jamilluddeen filed an additional affidavit on 26. 10. 1989, in which he admitted that he is already a married person having five children from his Mushlim wife. The question arising for our decision is as to whether the custody of Usha should be delivered to her father, the petitioner or to Sheru % Jatmillu ddeen or should continue to live in Rajya Mahila Sadan, Jaipur ?
(3.) ON 4. 1. 1990, an affidavit of Usha Khandelwal, was received by the court through the Superintendent, Rajya Manila Sadan, Jaipur. This affidavit is dated 2. 1; 1990. In her this affidavit, Usha stated that she had earlier given the statement in this court on 18. 10. 89 on account of centiments and emotions and that she wants to live with her parents. We have heard the learned counsel for the parties at length. The question which arises for consideration is as to Usha Khandelwal is a minor or major. There is conflicting evidence on this point. The horoscope filed by her father describes her date of birth as 6. 5. 1973. The school entry shows 4. 7. 1971 as her date of birth. The entry in the birth and death register of the Gram Panchayat shows 4. 7. 1974 as her date of birth and the medical examination based on ossification of bones shows her age between 18-19 years. We are therefore, unable to say as to whether Usha had attained the age of 18 years or not. This matter requires evidence. ;