Allahabad High Court
KISHORE AND ANOTHERversusSTATE OF U.P. AND 4 OTHERS
- Decided
Holding
The court held that X is an adult, as per the ossification test, and therefore cannot be restrained, ordering her release to stay with her husband.
Summary
The petitioners, Kishore and his wife referred to as 'X', filed a habeas corpus petition seeking the release of X, who was detained in a police lock‑up in connection with a POCSO case where Kishore is the accused. The court examined X's age, noting the absence of school records and relying on an ossification test conducted by a panel of doctors that placed her age between 17 and 18 years. Since the test indicated she is an adult, the court concluded that she cannot be restrained against her will under the law. X expressed her desire to stay with her husband, and the father refused to keep her, citing her pregnancy. Consequently, the court ordered that X be released to her husband and that the police no longer be responsible for her welfare, directing Kishore to provide his address to the local police station. The petition was thereafter disposed.
Issues considered
- Whether the corpus X is a minor under the Protection of Children from Sexual Offences Act and can be detained against her will.
- Whether the court can order the release of X to stay with her husband based on her expressed wish.
- Whether the State retains any responsibility for X's welfare after her release.
Subjects
- habeas corpus
- age determination
- ossification test
- adult
- marriage
- POCSO
- custodial rights
- release order
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
HABEAS CORPUS WRIT PETITION No. - 1406 of 2026
Kishore And Another
.....Petitioner(s)
Versus
State Of U.P. And 4 Others
.....Respondent(s)
Counsel for Petitioner(s) : Ravi Shanker Tiwari
Counsel for Respondent(s) : G.A.
Court No. - 42
HON'BLE ATUL SREEDHARAN, J.
HON'BLE ACHAL SACHDEV, J.
1. Heard learned counsel for the petitioners and learned counsel for
the State.
2. The present petition has been filed by the petitioner no.1 Kishore
who is the husband of the petitioner no.2, who is only referred to as
'X' in this order because she is the prosecutrix in a POCSO case
where the petitioner no.1 is the accused.
3. The first information report has been registered against the
petitioner no.1 on account of having allegedly eloped with the
petitioner no.2. The petitioners say that they have got married to each
other. The petitioner no.2 corpus, is presently lodged at Nari Niketan,
Vrindavan, Mathura from where she has been produced by SI PNO
900900455 Padam Singh and Constable PNO 252678170 Neha Rai
of Police Station Katra, District Shahjahanpur, before this Court.
4. This Court asked the corpus as to with whom she wants to stay.
She has categorically stated that she wants to stay with the petitioner
no.1 who is her husband.
5. As regards her age, learned counsel for the State has fairly
brought to the notice of the Court that there is an affidavit of the father
of the corpus which clearly discloses that she never went to the
school. Therefore, the primary document of the age is not available in
HABC No. 1406 of 2026
2
this case which is a school leaving certificate. The marriage certificate
of Arya Samaj is at page no.11 of the petition.
6. In the absence of a school leaving certificate or mark-sheet
statement disclosing the age of the corpus, the police in the course of
the investigation had got her ossification test done which is at page
no.32 of the petition which shows that the ossification test was done
by a Board of four doctors which has assessed the age of the corpus
to be between 17-18 years. This document was prepared at the
instance of SI Padam Singh of Police Station Katra, District
Shahjahanpur in the criminal case pending against the petitioner
no.1. The said document is not disputed by the State.
7. Thus, in the absence of a school leaving certificate or mark-sheet
statement showing a different age of the corpus and taking into
account the ossification test, this Court is of the opinion that the
corpus is an adult and can no longer be restrained against her will,
therefore, she is free to go with her husband.
8. Learned counsel for the State, in all fairness, informs the Court that
the father of the corpus has now refused to keep her as she is in the
family way.
9. Under the circumstances, the corpus is free to go with her husband
from the Court premises itself. The State or its entities shall no longer
be responsible as regards her well-being. The petitioner no.1,
however, shall give his name and address to the police Thana under
whose jurisdiction he resides.
10. Further appearance of SI Padam Singh and Constable Neha Rai
of Police Station Katra, District Shahjahanpur before this Court is
dispensed with.
11. With the above, the present petition stands disposed of.
September 30, 2026
rkg
(Achal Sachdev,J.) (Atul Sreedharan,J.)
Digitally signed by :-
RAKESH KUMAR GAUTAM
High Court of Judicature at Allahabad
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