The detention of a major in Nari Niketan against her will, based solely on alleged minor status without considering radiological age and other relevant evidence, is illegal.

Mrs. Vijay Lakshmi, J.: -

Heard Mr. A.P. Tewari assisted by Mr. R.S. Tripathi, learned counsel for the revisionists as well as learned A.G.A. on behalf of opposite party nos. 1 and 2. No one is present on behalf of opposite party no. 3 (informant) despite the fact that he has been personally served with the notice as per the report dated 17.2.2013 of the Chief Judicial Magistrate, Budaun.

2. Learned counsel for the revisionists prays that the case be decided on merits today as it is pending since long specially in the light of the note appended on the top of the cause list that "no case shall be adjourned on the ground that learned counsel for the informant is not present". Learned counsel has further submitted that even after expiry of one year? from personal service of notice the opposite party no. 3 (informant) has neither appeared nor engaged any counsel to argue the case on his behalf.

3. In view of the aforesaid facts, I am deciding this criminal revision today on merits, after hearing learned counsel for the revisionist, learned A.G.A. and after carefully perusing the records.

4. The instant criminal revision is being preferred against the order dated 18.7.2013 passed by the Chief Judicial Magistrate, Budaun in Criminal Case No. 1481 of 2013 (State Vs. Kishanveer) under Sedctions 363 and 366 I.P.C. whereby the prosecutrix-revisionist no. 1 was sent to Nari Niketan.

5. Learned counsel for the revisionists has challenged the legality of the aforesaid by arguing that the prosecutrix has been detained in Nari Niketan against her will and thus her right to liberty has been infringed. The prosecutrix is major and she has categorically stated in her statement recorded under Section 164 Cr.P.C. that she has performed marriage with Kishanveer (revisionist no. 2) out of her own free will and she intends to live with him in her matrimonial home. The radiological age of the girl has been found to be 18 years but the learned Magistrate, relying on the School Leaving Certificate and admission register of prosecutrix has held her minor, without paying any attention to the fact that the Headmaster of the school had denied that the prosecutrix had ever studied in his school. Learned counsel has further argued that the impugned order clearly shows that when the prosecutrix was asked to name any of her relatives with whom she intends to go, she specifically stated that she intends to go with Kishanveer and with no other relative, but ignoring her statement the learned Magistrate has sent her to Nari Niketan against her wishes. Learned counsel for the revisionists has vehemently argued that even a minor can not be sent to Protection Home against his/her wishes. In this regard he has placed reliance on a Division Bench judgement of this Court in Raj Kumari Vs. Superintendent, Women Protection House, 1997 All LJ 2197 : 1997 ACR 350, in which, the Division Bench of this Court relying on two earlier Division Bench judgments in the matter of Smt. Parvati Devi, 1982 All LJ 115 and Smt. Kalyani Chowdhary v. State of U.P., 1978 Cri LJ 1003 has held that :

"...no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women & Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home."

6. In the case of Smt. Parvati Devi (supra) the Division Bench of this Court has held that :

"...confinement of an accused in Nari Niketan against her wishes could not be authorised either under Section 97 or under Section 171 Cr.P.C. and the respondents have failed to bring to the notice of the Court, any legal provision where under the Magistrate has been authorised to issue direction that a minor female witness shall against her wishes, be kept in Nari Niketan."

7. Per contra learned A.G.A. has contended that the learn