IMPORTANT POINTS
Habeas Corpus--Muslim law--Marriage--To recover Mohammedan girl of 15 years from custody of boy and his family members--At age of 15 years girl has expressed her desire to accompany boy and wishes to voluntarily stay with him--Petition dismissed with liberty to girl who is more than 15 years to decide her own fate.
Muslim Law--Marriage--Age of girl--Prohibition of child Marriage Act, 2006 is not applicable to muslims.

Nirmaljit Kaur, J.

1 Respondent No. 5 i.e. Jekam along with Sarjeena had filed Criminal Misc. No. 9799 of 2009, stating that both the petitioners were major and that they have got married against the wishes of their parents. Thus, they apprehend danger to their life and liberty. It was further stated that the age of Sarjeena was 18 years. In order to support the fact that her age was above 18 years, a photocopy of the ration card was placed on record as P-1. An affidavit, in support of her age, was also filed.

2 In view of the averments, a direction was issued to "Superintendent of Police, Mewat to look into the matter and provide necessary security, if need be."

3 Therefore, the present petition under Article 226 of the Constitution of India is filed by the uncle of Sarjeena, praying for issuance of a writ of Habeas Corpus to recover the detenue, namely, Sarjeena alleged to be minor of the age of 14 years and 5 months at the time of marriage but more than 15 years at the time of filing of writ petition, from the custody of respondent No. 5-Jekam son of Md. Mummal, resident of VPO Mahun, Tehsil Ferozepur Jhirka, District Mewat, alleging himself to be the husband of Sarjeena.

4 The contest appears to be between her uncle and her husband. Surprisingly, the father has not filed the petition. Subsequently an application has been moved by the father to be impleaded as a party. Thus, the assumption is that the said custody case has been filed by the uncle on behalf of the father viz a viz the custody of the girl to the respondent No. 5 who is stated by the girl to be her husband. In order to show that the Date of Birth of Sarjeena was 02.01.1995, reliance was placed on the Birth Certificate as maintained by the Child Development Project Officer, Punhana (Mewat) P-1, as well as, School Leaving Certificate P-2.

5 In view of the contradictory stand of the parties with respect to the age of Sarjeena, daughter of Mohd. Bhopat son of Roojdar, the matter was sent to the District Judge, Gurgaon to enquire into the same and submit his report with respect to her correct age. The report dated 28.07.2009 was submitted by the District and Sessions Judge, Gurgaon. On objection filed by the respondents, the said report was set aside. The District Judge, Gurgaon was directed to submit a fresh report after taking into consideration certain documents. Accordingly, the second report dated 03.11.2009 was submitted by the District Judge, Gurgaon, holding as under :-

"As a result of the discussion above, it is held that the applicant Kammu has been able to produce ample evidence to show that the date of birth of Sarjina was 02.01.1995 and, thus, she was a minor aged about 15 years and five months at the time of filing of the Criminal Writ Petition under Article 226 of the Constitution of India in the Honble High Court."

6 Learned counsel for the respondent, however, disputed the same and stated that the age of Sarjeena was 15 years even on the date of issuance of Ration Card A-2 dated 16.02.2006. Reference was also brought to para 15 of the report, which is as under :-

"15. Of course in the ossification test report Ex. D1, the age of Sarjina is opined to be in between 17 to 18 but in the light of above discussed cogent and convincing documentary evidence in the shape of ration card Ex. P1, entry Ex. P2 in Admission & Withdrawal Register, School Leaving Certificate Ex. P3, Certificate Ex. P4 issued on the basis of entry Ex. P5 of Births and Deaths Register, it stands conclusively proved that Sarjina had born on 02.01.1995 and thus was a minor being aged about 15 years and 5 months on the date of the filing of the petition before the Honble High Court. Moreover, it is well settled law that there has always been margin of two years on both sides of the age so opined in ossification test."

7 Thereby, challenging the finding with respect to the age of the girl and stressed that the girl was between 17 to 18 years at the time of her marriage. However,