Devendra @ Devo vs State of Gujarat and Others

A.M. Kapadia, J.

1 Rule. Mr. Dabhi, learned APP appears and waives service of notice of Rule on behalf of Respondent Nos. 1 to 3, whereas Mr. AU Chauhan, learned advocate appears and waives service of notice of Rule on behalf of Respondent No. 4.

2 By filing instant petition under Article 226 of the Constitution of India, the Petitioner has prayed to issue writ of Habeas Corpus or any other appropriate writ, direction and/or order directing Respondent Nos. 2 and 3 to produce corpus Priya @Padmini before the Court and she may be set at liberty at her desire and wish and Respondent No. 3 - Women Protection Home may be directed to release Priya @ Padmini from their custody.

3 As per the averments made in the petition, daughter of Respondent No. 4 -Vishvanath Kanto named corpus Priya @ Padmini was born on 5.1.1989 and she was staying with her parents at railway colony, Kalol. She is in deep love with the Petitioner and her parents want to settle her marriage with another boy against her will. She therefore, left her parental home for going with the Petitioner. Therefore, the complaint was filed before the Railway Sabarmati Police Station and the same was registered as I. C.R. No. 31 of 2008 and offence was registered against the Petitioner under Sections 363, 366 and 114 of the IPC.

3.1 It is further averred that charge sheet was also filed and the case was committed to the Court of Session. The case was registered being Sessions Case No. 58 of 2009 and after trial, the Petitioner was acquitted.

3.2 It is further averred in the petition that as both were in deep love since long and parents were not agreed and corpus Priya @ Padmini wants to marry with the Petitioner, both decided to marry with each other. So they left parental house and they got married as per the Hindu religious and custom.

3.3 It is further averred in the petition that when the Petitioner was arrested by the police, Priya @ Padmini voluntarily made statement that she was not abducted and not compelled to left her parental home and she only desires to stay with the Petitioner and also given history before the doctor and also produced marriage certificate and birth certificate before the police. She refused to go with her parents and she desired to stay in Women Protection Home and since then, she is in Women Protection Home.

3.4 It is also further averred in the petition that the Petitioner tried to meet corpus Priya @ Padmini and Priya @ Padmini had shown her desire to come with the Petitioner, but the authority did not allow her to go with the Petitioner.

3.5 It is also further averred in the petition that as corpus Priya @ Padmini - wife of the Petitioner is under wrongful confinement and is also ready and willing to come with the Petitioner. In that connection, corpus Priya @ Padmini addressed one letter to the High Court and requested to allow her to go with the Petitioner, but she is not allowed to go as per her wish, even though she is major and wife of the Petitioner and she is confined against her wish. Therefore, the Petitioner has filed this petition and prayed for the relief to which the reference is made in the earlier paragraph of this judgment.

This Court vide order dated 1.12.2010 issued Notice to Respondents, which was made returnable on 3.12.2010 and Respondent No. 2 PI, Railway Police Station, Sabarmati, Ahmedabad was directed to produce corpus namely Priya @ Padmini, wife of the Petitioner and daughter of Respondent No. 4, who is at present in the custody of Respondent No. 3 - Women Protection Home, Near Bhikshuk Gruh, Odhav, Ahmedabad, before this Court on the returnable date.

On returnable date, Mr. LB Dabhi, learned APP states that in compliance of the order dated 1.12.2010, the PI, Railway Police Station, Sabarmati, Ahmedabad had produced corpus namely Priya @ Padmini who was in custody of Respondent No. 3 -Women Protection Home, Near Bhikshuk Gruh, Odhav, Ahmedabad. He therefore, sought permission to produce corpus before us. We had therefore, permitted him to produce the corpus before us. On that day, since there were two versions about her birth date, we had directed Mr. LB Dabhi, learned APP to collect original record of the birth date of the corpus from the Birth Register, Kalol and produce the same before this Court, so that this Court can ascertain the correct birth date and the matter was adjourned to 7.12.2010.

On 7.12.2010, PI, Railway Police Station, Sabarmati, Ahmedabad had produced a communication dated 4.12.2010 sent by the Chief Officer, Kalol Nagarpalika addressed to him along with xerox certified copy of the admission of the school as well as xerox certified copy of the School Leaving Certificate issued by the Principal of Kalol Kanya Shala No. 10, Tal: Kalol, Dist: Gandhinagar so also produced corpus Priya @ Padmini brought from the Respondent No. 3 Women Protection Home. However, on that day, Advocates of this Court abstained from working on account of call issued by the Gujarat High Court Bar Association on the basis of the resolution passed by it, to the effect that, all the Advocates of this Court should abstain from work today. The matter therefore, was adjourned to 8.12.2010 i.e. today.

Today, when the matter is called out, Mr. Dabhi, learned APP for the Respondent - State of Gujarat has tendered reply affidavit sworn by Mr. TL Makwana, PSI, Sabarmati Railway Police Station, Ahmedabad, wherein it is inter alia stated that in the investigation, it is found that birth certificate, which has been produced by the Petitioner, is false one, as the police authority had approached the Chief Officer, Kalol Nagarpalika and requested him to verify the genuineness of the certificate, which has been produced by the Petitioner. Pursuant to that, Chief Officer, Kalol Nagarpalika had issued letter dated 4.12.2010. In this letter, it has been stated by the Chief Officer, Kalol Nagarpalika that the certificate, which has been registered at Serial No. 173 in the year 1989, was registered on 30.1.1989, in which, name is mentioned as Manisha and date of birth is 24.1.1989 and name of the father is Chhaganbhai Kantilal Parmar. Similarly, in the year 1993, in the Register, at serial No. 173, the name is mentioned as Ashwini and date of birth is 31.1.1993 and name of the father is Kailash Bansi Nagar. It is therefore, stated in the reply affidavit that certificate, which has been produced by the Petitioner is forged one.

7.1 It is also stated in the reply affidavit that thereafter, the police authority had approached the school at which the corpus took her education and the school had provided the School Leaving Certificate of Priyaben Vishvanath Soni and as per the said certificate, her date of birth is 9.6.1994 as well as also provided one form in which the date of birth of corpus Priya @ Padmini has shown as 9.6.1994, which shows that the corpus is minor. It is therefore, prayed that since the corpus is minor, her custody cannot be given to the Petitioner who is the husband of the corpus and therefore, it is prayed to dismiss the petition.

We have considered the submissions advanced by Mr. YV Brahmbhatt, learned advocate for the Petitioner, Mr. LB Dabhi, learned advocate for the Respondent Nos. 1 to 3 and Mr. AU Chauhan, learned advocate for the Respondent No. 4. We have also perused the averments made in the petition and the documents annexed therewith so also the reply affidavit filed by Respondent No. 2 sworn by Mr. TL Makwana, PSI, Sabarmati Railway Police Station, Ahmedabad and also the documents annexed therewith.

Be it stated that in a petition filed under Article 226 of the Constitution of India praying for issuance of writ of Habeas Corpus, this Court has to examine as to whether the averments made in the petition with regard to alleged illegal detention of the corpus by either of the Respondents is correct or not. After ascertaining the said fact, this Court has to ascertain the age of the corpus by giving finding whether she is a major or minor.

So far as her wish and willingness is concerned, she has stated before us that she is lawfully wedded wife of the Petitioner and she wants to permanent reside with him at her matrimonial home and does not want to stay with the Respondent No. 4 Vishvanath Kanto - her father, who is her natural guardian. Therefore, now, we have to examine whether she is a major and minor. In the instant petition, the Petitioner claimed that corpus is a major and she is his lawfully wedded wife and she is illegally detained by Respondent No. 3 - Women Protection Home, Ahmedabad. To prove that the corpus is a major, the Petitioner has also produced the birth certificate of the corpus. As per the said birth certificate, corpus Priya @ Padmini was born on 5.1.1989 and the said birth is registered at serial No. 173 with the Birth Register, Kalol Nagar Palika. When the corpus was first time produced before this Court, this Court had also raised a doubt about the correct birth date of the corpus. Therefore, this Court directed Mr. LB Dabhi, learned APP ti collect original record of the birth date of corpus Priya @ Padmini from the Birth Register of Kalol Nagar Palika and produce the same before the Court, so that this Court can ascertain the correct birth date. Today, Mr. LB Dabhi, learned APP has tendered affidavit sworn by Mr. TL Makwana, PSI, Sabarmati Railway Police Station, Ahmedabad with the communication dated 4.12.2010 sent by the Chief Officer, Kalol Nagar Palika addressed to the PSI, Railway Police Station, Sabarmati, Ahmedabad, xerox certified copy of the admission of the school as well as xerox certified copy of the School Leaving Certificate issued by the Principal of Kalol Kanya Shala No. 10, Tal: Kalol, Dist: Gandhinagar. As per the said record, corpus Priya @ Padmini was born on 9.6.1994. Therefore, as on today, she is aged about 16 years and 5 months and less than 18 years. She is therefore, minor and not a sui juris in the eye of law. She therefore, cannot be sent with the Petitioner. In view of this, her custody with the Respondent No. 3 Women Protection Home cannot be termed as illegal as she refused to go with the Respondent No. 4 - her father, who is her natural guardian, as per the statement made by her before the police authority as well as before us.

However, we have again examined the desire of the corpus. She is reiterated before us that she is a wedded wife of the Petitioner and therefore, she wants to go with the Petitioner and she does not want to go with the Respondent No. 4 - her father, who is her natural guardian.

In the above view of the matter, the averments made in the petition are false. The Petitioner has also produced false birth certificate of the corpus. Therefore, this petition is misconceived and the same deserves to be dismissed.

For the foregoing reasons, the petition fails and it is accordingly dismissed. Rule is discharged.

Since the corpus has shown her unwillingness to go with Vishvanath Kanto Sunani, Respondent No. 4 - her father, who is her natural guardian, we direct the Respondent No. 3 - Women Protection Home, Near Bhikshuk Gruh, Odhav, Ahmedabad to retain her custody with it till the corpus completes the age of 18 years. We further direct that the corpus should not be allowed to meet the Petitioner and also should not be allowed to go anywhere till she completes the age of 18 years.

Copy of this order be sent to Respondent No. 3 - Women Protection Home, Near Bhikshuk Gruh, Odhav, Ahmedabad for compliance.