The burden of proof in establishing age-related facts, the relevance of ossification tests, and the prevention of abuse of process of the court in marriage disputes.

JUDGMENT :

1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report No.033 of 2018, under Sections 363, 366 and 352 Indian Penal Code, Police Station Sujauli, District Bahraich.

2. We have heard learned counsel for the petitioners, Shri S.P. Singh learned counsel for the State, and Shri Shiv P. Shukla, learned counsel who has given assistance to the Court on behalf of respondent no.5/Unique Identification Authority of India, New Delhi (for short “UIDAI”).

In deciding a related issue as to ‘of what facts Aadhaar Card is Proof?’, Ms. Jasmine, Deputy Director, UIDAI, Regional Office, Lucknow has also assisted the Court.

3. Learned counsel for the petitioners contends that although the facts reflected in Para-6 of the petition contain clerical errors, however the case of the petitioners is to the effect that families of petitioners no.1 and 2 (Smt. Parvati Kumari and Virendra Kumar) arranged their marriage. A dispute arose in regard to some demand whereupon parents of Smt. Parvati Kumari petitioner no.1 refused to marry her with petitioner no.2 Virendra Kumar.

On behalf of the petitioners, in context of the accusations of committing offence under Sections 363, 366 Indian Penal Code and Section 352 Indian Penal Code it has been pleaded that petitioner no.1 has neither been kidnapped nor abducted. Marriage of choice of petitioner no.1 Smt. Parvati Kumari has not been accepted by respondent no.4 who happens to be the mother of Parvati Kumari. In such circumstances, in total abuse of process of the law and process of the Court, respondent no.4 initiated impugned criminal proceedings not only against petitioner no.2 Virendra Kumar but also against his family members.

4. It has been highlighted by learned counsel for the petitioners that petitioner no.1 Smt. Parvati Kumari had attained age of majority. So as to show that petitioner no.1 attained age of majority, petitioner no.1 has relied on the date of birth recorded in her Aadhaar Card. Being of marriageable age and there being no legal impediment in her marriage with petitioner no.2, she got married to him.

In evidence of marriage, learned counsel has brought attention of the Court towards Annexure – 2 which is a marriage certificate issued by Arya Samaj Mandir indicating that petitioner no.1 got married to petitioner no.2 on 07.05.2018.

It has been pleaded that petitioner no.2 had also attained age of majority. In such circumstances, offence, as alleged, has not been committed.

5. Petitioner no.1 Smt. Parvati Kumari has relied on Aadhaar Card prepared by UIDAI to establish her date of birth. The Aadhaar Card declares the date of birth of petitioner no.1 Smt. Parvati Kumari as 01.01.1999 (Annexure – 3 appended with the writ petition).

Likewise, the Aadhaar Card of petitioner no.2 Virendra Kumar indicates his date of birth as 01.01.1997 (Annexure – 4 appended with the writ petition).

6. This Court being intrigued by a large number of cases wherein Aadhaar Cards declare the date of birth as 1st of January of a particular calendar year, and in some cases only the year of birth is given, recorded a detailed order dated 16.05.2018 directing ‘UIDAI’ to be arrayed as respondent no.5 to demonstrate as to whether Aadhaar Card would be evidence of date of birth/age or not. Consequently, UIDAI was arrayed as respondent no.5.

7. The core issue before this Court is whether offence under Sections 363 and 366 Indian Penal Code has been committed, and whether petitioner no.1 Smt. Parvati Kumari had been abducted or kidnapped by petitioner no.2 Virendra Kumar.

The factum of age of the victim assumes importance and relevance because the victim petitioner no.1 claims to be married to petitioner no.2. Offence under Section 363 Indian Penal Code can be said to be committed if it is demonstrated by the prosecution that the victim was a minor; and therefore, had been kidnapped from the custody of her legal guardian. Legally, offence of ‘kidnapping’ as defined under Section