Bala @ Balasubramaniam vs State

R. Regupathi, J.—In the above petition, on 5.12.2008, this Court passed the following order:

The petitioner claiming himself as the husband of the detenue by name Mumtaj Begum, aged about 17 years preferred the Hebeas Corpus Petition.

In the affidavit, it has been stated that there was love affair with the detenue and their marriage was performed on 26.07.2008. Subsequently, they lived together as husband and wife and she became pregnant. The marriage was objected by the parents of the detenue and in the meantime, the mother of the detenue preferred a complaint with the respondent police. During investigation, she was rescued and sent to the custody of the mother. However, the mother made an attempt to terminate her pregnancy and when this was informed to the learned Magistrate, she was entrusted with the custody of the Muthukuviyal Home, a Non-Governmental Organisation by the orders of the learned Magistrate.

Learned Counsel for the petitioner submits that the petitioner has been enlarged on bail and willing to take the detenue with him to continue his matrimonial life.

Learned Additional Public Prosecutor submits that initially, the detenue found missing from 26.07.2008 and a complaint was given to the respondent police on 27.08.2008 and a case in Crime No. 649 of 2008 for an offence punishable u/s 366(A) IPC was registered and during investigation, the girl/detenue was secured on 27.08.2008 and the petitioner was arrested on the same day. Both of them were produced before the learned Judicial Magistrate No. I, Tuticorin. Since, the detenue is a minor her custody has been entrusted with the mother and the petitioner was remanded to judicial custody by an order dated 06.09.2008. When the detenue was in the custody of the mother, she made an attempt to terminate her pregnancy and it has been complained to the learned Magistrate on 14.09.2008. The learned Magistrate directed the respondent police to register a case against the mother of the detenue and accordingly a case in Crime No. 886 of 2008 for an offence punishable u/s 313 IPC has been registered and the investigation is pending.

In such circumstances, the girl has been forwarded to the custody of the Muthukkuviyal Home, Tuticorin and she has been produced before this Court. On enquiry, she submitted that she is in the advanced stage of pregnancy by six months and expressed her willingness to join with her husband. The Date of Birth, dated 15.03.1992, was given by the School Authorities are incorrect and further stated that she is a major and correct Date of Birth was not given, when she was admitted in the School.

We have heard the submissions made on either side and perused the materials available on record.

A certificate issued by the School Authorities would go to show that the Date of Birth is 15.03.1992 and the statement given by the detenue is that she is a major aged more than 18 years. By physical appearance we are of the view that there is scope of suspicion regarding her age. Therefore, the Dean, Medical College Hospital, Tuticorin is directed to subject the girl/detenue for ossification test to ascertain her real age and issue a certificate in this regard. The respondent is directed to produce the girl before the Medical Officer to receive the certificate before the 10th December 2008.

Pursuant to the said order, the detenue was subjected to Ossification test for the purpose of ascertaining her actual age. Dr. A. Jasmine Punitha, Assistant Surgeon, attached to the Government Medical College Hospital, Thoothukudi, examined her and issued a Letter dated 12.12.2008, which reads as follows:

I do hereby having to your final notice that, the Mumtaj Begum was brought to me for examination on 29.8.2008 X-ray could not be taken, since she was pregnant at the time of examination. So, I conclude that by appearance and by her own statement she may be around 17 to 18 years.

The learned Counsel appearing for the petitioner submits, considering the fact that subsequent to her marriage with the petitioner, the detenue is in advance stage of pregnancy, the custody may be entrusted with the petitioner/husband.

The learned Counsel appearing for the mother of the detenue submits that the detenue was was all along affectionate towards her mother and the family members and they are willing to take care of the detenue since she is in the advance stage of pregnancy. The learned Counsel would further submit that the mother had never made any attempt to terminate the pregnancy of the detenue but a false allegation has been made by the detenue, resulting in registration of the case against her. However, on instructions, the learned Counsel made an assurance before this Court that if custody of the detenue is given, the mother and the family members will look after her with care and concern till she attains majority.

Learned Additional Public Prosecutor submits that both the cases are pending investigation.

The detenue is produced before this Court. On enquiry, she expressed her willingness to join with her mother and further made a request that a visitation right must be given to her husband and the family members when she stays with her parents.

We have heard the submissions and perused the materials available on record.

In view of the desire expressed by the detenue, who is in advance stage of pregnancy, to join with her mother, we have no other option but to allow her to join with her mother, who is the natural custodian. Since there is an assertion for conducting marriage between the detenue and the petitioner and since the detenue is now in advance stage of pregnancy, we allow the petitioner to visit the detenue twice in a week while she is under the care and custody of her mother and accordingly, it is ordered.

The respondent police is directed to entrust the custody of the detenue to her parents.

With the above observation, the Habeas Corpus Petition is closed.