Bhavanbhai Bababhai Thakor vs State of Gujarat and Others

A.M. Kapadia, J.—Rule. Mr. LB Dabhi, learned APP appears and waivesservice of notice of Rule on behalf of State of Gujarat �respondent Nos. 1 and 2. Respondent No. 3 is personally present before the court and therefore, Rule need not be served to him. Respondent Nos. 4 to 8 are not necessary party and therefore, Rule is not also required to be served upon them.

By filing instant petition under Article 226 of the Constitution of India, the petitioner has prayed to issue writ of Habeas Corpus or in the nature of Habeas Corpus or any other appropriate writ, direction and/or order directing respondents to produce her daughter - corpus Rekha before this Court, who is in illegal detention of respondent No. 3 Nayak Ganapatbhai Gangarambhai and handover her custody to him.

It is averred in the petition by the petitioner that his daughter - corpus Rekha was taken from his residential house by respondent Nos. 3 to 8 on 10.8.2010. The petitioner therefore, has informed PI, Sanand Police Station, however, no effective steps are taken nor whereabouts of corpus Rekha are known to the petitioner. It is further averred in the petition that corpus Rekha is illegally detained and confined by respondent No. 3 against her wish and desire. The petitioner has therefore, filed the present petition and prayed for the relief to which the reference is made in the earlier paragraph of the judgment.

This Court vide order dated 14.10.2010 issued Notice to respondent Nos. 1,2 and 3 only, which was made returnable on 28.10.2010 on condition that the petitioner shall deposit Rs. 10,000/- as a cost, to show his bona fide, with the Registry of this Court on or before 18.10.2010. On returnable date, the corpus could not be found out. Therefore, time was sought for and the matter was adjourned to 25.11.2010 i.e. today.

Today when the matter is called out, Mr. Dabhi, learned APP, upon instructions received from Mr. Somabhai, ASI, Sanand Police Station who is personally present in the Court, states that corpus Rekhaben is found out from village Bhiapur, Tal & Dist: Nagpur, Maharashtra, who was in illegal detention of respondent No. 3 -Nayak Ganapatbhai Gangarambhai, who is also present in the Court. He has brought the corpus with the assistance of woman constable and seeks permission to produce corpus Rekhaben before the Court. We have permitted to produce corpus Rekha before us.

We have ascertained the wish and willingness of the corpus Rekha and also inquired whether she was in illegal detention of respondent No. 3 Nayak Ganapatbhai Gangarambhai. She has unequivocally stated before us that she was in illegal detention of respondent No. 3 -Nayak Ganapatbhai Gangarambhai, who had forcibly kidnapped her against her will from her village Rasulpura, Tal: Sanand, Dist: Ahmedabad and taken to Maharashtra and also forcibly married her in a temple and the said marriage is also registered before the Sub Registrar of Marriage, Chimur Gram Panchayat, Dist: Nagpur, Maharashtra after obtaining her signature forcibly. She therefore, wants to go with her father - petitioner.

So far as her age is concerned, admittedly, on the date of incident, she was minor less than 18 years, of course, today she is above 18 years. Therefore, she is sui jurisand no fetters can be placed upon her choice of the person with whom she has to stay. As she has categorically stated before us that respondent No. 3 has not only forcibly kidnapped her, but also married against her will and wish and the said marriage is performed in temple and also is registered before the Sub Registrar of Marriage forcibly and therefore, she wants to go with the petitioner - her father. We have therefore, permitted her to go with her father - petitioner.

For the foregoing reasons, this petition succeeds and accordingly it is allowed. Rule is made absolute. Corpus Rekhaben is permitted to go with her father - petitioner.

At the time issuance of Notice, this Court has directed the petitioner to deposit Rs. 10,000/-as a cost, to show his bona fide, with the Registry of this Court on or before 18.10.2010. since the petition succeeds and it being bonafide, Registry is directed to pay back the amount of Rs. 10,000/-to the petitioner deposited by him, upon due verification forthwith.

Since, the corpus is illegally detained by respondent No. 3, the Investigating Officer is at liberty to investigate the case and during investigation, if incriminating evidence is found against respondent No. 3, action shall be taken against him in accordance with law.