The importance of age determination in cases involving child custody and marriage, and the significance of the victim's statement and ossification test report in establishing her status as a major.

JUDGMENT :

1. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State/respondent no. 1 to 4.

2. This petition under Article 227 of the Constitution of India has been preferred by the petitioner (mother-in-law of the victim) with a prayer to set aside the order dated 13.2.2019 passed by Chairman, Child Welfare Committee, Ghazipur in case crime no. 0014 of 2018, under Section 363, 366 and 7/8 POCSO Act, Police Station Muhamdabad, District Ghazipur, whereby victim Nidhi Yadav has been sent to Late Shivpujan Pathak, Bal Grih Balika, Rastipur, Saidpur, Ghazipur with further prayer to issue a direction in the nature of mandamus for medical examination of the prosecutrix and to pass further order, which this Court may deem fit and proper under the facts and circumstances of the case.

3. Filtering out the unnecessary details, the basic facts of the case are that on 23.1.2018 the informant-Vidya Devi lodged FIR with regard to alleged incident dated 15.1.2018 registered as case crime no. 0014 of 2018, under Section 363, 366 IPC and 7/8 POCSO Act against the petitioner and six other co-accused persons (who are family members of the petitioner), making allegations against them that on 15.1.2018 they in collusion with each other enticed away her minor daughter (Nidhi Yadav). The said FIR was challenged by the petitioner and other co-accused persons in Criminal Misc. Writ Petition No. 5946 of 2018, which was disposed of vide order dated 13.3.2018 with the direction that the petitioners (accused persons) shall not be arrested in the said case till the submission of the police report under Section 173 (2) Cr.P.C.

4. Investigating Officer during investigation of the case, produced the victim Nidhi Yadav before Additional Civil Judge (Junior Division) Court No.2, Ghazipur on 13.2.2019, where statement under Section 164 Cr.P.C. of the victim was recorded. Victim in her statement under Section 164 Cr.P.C. did not support the prosecution case and disclosed her age, about 19 years. She has also specifically stated that she on her own sweet will solemnized her marriage with Subhash (son of the petitioner) on account of love and affection with each other and they are living together as husband and wife and leading happy matrimonial life. The said statement under Section 164 Cr.P.C. of the victim is reproduced herein-below:-

^^Ck;ku vUrxZr /kkjk 164 n0iz0l0

uke fuf/k ;kno mez 19 o"kZ

firk dk uke jk/ks';ke ;kno

fuoklh xzke j?kqojxat Fkkuk eqgEenkckn

ftyk xkthiqj

eq0v0l0 14@18

/kkjk 363@366 vkbZ0ih0lh0 o /kkjk 7@8 ikDlks ,DV ihfMrk dh QksVks o gLrk{kj esjs le{k izekf.kr djds izLrqr fd;k x;kA ihfMrk }kjk ;g c;ku fn;k fd fnukad 15 tuojh 2018 dks eSa lqHkk"k jktHkj iq= Hkxoku jktHkj ds lkFk ?kj ls Hkkx dj fnYyh pyh x;hA ge nksuks ,d nwljs dk ialn djrs FksA geus fnYyh esa efUnj esa 18 tuojh 2018 dks 'kknh dj yhA ge ifr iRuh ds :i es lkFk esa jgs vkSj lqHkk"k ls eq>s ,d csVk 1 tuojh 2019 dks gqvkA tc ges dsl dk irk pyk rks ge xkthiqj vk x;sA eSa viuh ethZ ls lqHkk"k ds lkFk x;h FkhA eq>s dqN vkSj ugha dgukA ;g c;ku eSa viuh ethZ ls ns jgh gWwA c;ku lqudj rLnhd fd;kA ihfMrk ds cksyus ij esjs }kjk v{kj’k% ntZ fd;k x;kA

13-2-19

fuf/k ;kno^^

5. As per the prosecution case, the said statement of the victim was recorded in presence of her parents, thereafter parents of the victim clearly refused to take the custody of the victim. Under the circumstances, victim was produced by the Investigating Officer before Chairman, Child Welfare Committee, Ghazipur, who has passed order dated 13.2.2019 observing that the victim is minor aged about 13 years and a baby aged about one and half month is also with her. As such, she has been directed to send Late Shivpujan Pathak, Bal Grih Balika Rastipur, Saidpur, Ghazipur. In the aforesaid background, pursuant to order dated 13.2.2019, the victim alongwith her baby sent to aforesaid Bal Grih and