Dharmaputran vs Circle Inspector of Police and Others

R. Basant, J.—The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his wife Biji, a young woman, aged about 33 years (date of birth -6.12.1977). Biji, the alleged deenue, is a graduate - B.Com. (Co-operation). She is not employed. Her marriage with the petitioner took place on 29.04.2003. They have no issues in the wedlock. The spouses were getting treated for infertility. At long last, the alleged detenue became pregnant. According to the petitioner, from 07.10.2010, the alleged detenue Biji is being illegally detained by respondents 3 and 4. Respondent No. 4 is the sister of Biji and respondent No. 3 is the husband of respondent No. 4. Quite surprisingly, the alleged detenue Biji is also seen arrayed as the 5th respondent in the Writ Petition.

It is, in these circumstances, that the petitioner came to this Court with this petition on 02.11.2010.

The matter came up for admission hearing on 03.11.2010. The Court was not satisfied after hearing the learned Counsel for the petitioner and perusing the petition that prima facie there are any elements of illegal detention or confinement. We posted the case to 10.11.2010 with direction to the learned Government Pleader to take instructions. The petitioner was also permitted to produce further materials, if any.

On 10.11.2010 when the matter came up for hearing, the learned Government Pleader prayed for time. It was submitted by the Government Pleader that the presence of the alleged detenue herself can be ensured on this day and it is accordingly that the case was posted to this date.

Today when the case is called, the petitioner is present. His brother Udayabhanu has also come to Court along with him. The petitioner is represented by his counsel.

Respondents 3 and 4 have come to Court. Along with them, the 5th respondent, the alleged detenue, has also come to Court. A counsel appears for respondents 3 to 5.

The alleged detenue, the 5th respondent-Biji, stated before us in Court that she does not want to return to the petitioner and she is not interested in speaking to him. However, taking note of the totality of circumstances, we requested the counsel to play a constructive role and to ascertain whether parties can be persuaded to come to a harmonious settlement.

After the lunch recess, we interacted with the alleged detenue alone initially. Later we interacted with her in the presence of the petitioner, her husband. Subsequently we interacted with the alleged detenue and the petitioner in the presence of the brother of the petitioner and the sister of the alleged detenue. The learned Counsel for the petitioner, the learned Counsel for respondents 3 to 5 and the learned Government Pleader were also present.

The alleged detenue states before us that she is not under any illegal detention or confinement. According to her, she used to be physically and mentally harassed and tortured by the petitioner. After a long period of treatment, she had become pregnant. But no kindness or consideration was shown by the petitioner towards her. She was assaulted and there was bleeding. It was, in these circumstances, that she was constrained to go to her sister and brother in law on 07.10.2010. The bleeding continued, but did not respond to treatment. The pregnancy has got aborted now. She does not want to return along with the petitioner. She wants to go back along with respondents 3 and 4.

The sister of the alleged detenue, the 4th respondent, also made submissions in tune with the submissions of the alleged detenue.

The petitioner and his brother have a different version to advance. According to them, there was no assault or physical or mental harassment against the alleged detenue. When the alleged detenue became pregnant, it is their case that respondents 3 and 4 did not want the pregnancy to advance. It is the case of the petitioner that respondents 3 and 4 are not interested in the alleged detenue begetting a child. According to the petitioner, after the alleged detenue returned to respondents 3 and 4, the pregnancy has been deliberately aborted. The petitioner points out that the abortion took place not in the hospital where the alleged detenue was getting treated for infertility and where success was achieved ultimately, but at some other hospital. According to the petitioner, this indicates that respondents 3 and 4 were not actually interested in saving the pregnancy. They were more interested in getting the pregnancy aborted. Respondents 4 and 5 deny these allegations. According to them, it was a precious pregnancy and there was no reason whatsoever why they should have attempted to abort the pregnancy.

In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenue is under any illegal detention or confinement. Here the alleged detenue is an adult major woman, aged about 33 years. She is an educated woman. We reckon her as competent to take decisions affecting her. She states before us categorically that she does not want to return with the petitioner and that she will be moving for divorce shortly. We are satisfied that the statement of the alleged detenue can be accepted. We respect her decisional autonomy.

In our attempt to explore the possibilities of a harmonious settlement, we did try to persuade the parties to resume cohabitation if possible or to decide to separate as friends. That attempt has not succeeded. We are satisfied that no directions under Article 226 of the Constitution can, need or deserve to be issued.

In the result:

(a). This petition is dismissed;

(b). We record the statement of the alleged detenue that she wants to return along with her sister and brother in law. She is permitted to do so.

We make it clear that we have not intended to express any opinion on any other aspects. We have intended only to ascertain and hold that the alleged detenue is not under illegal confinement or detention now.

ORDER

The petitioner has come to this Court for issue of a writ of habeas corpus to search for, trace and produce his wife, the alleged detenue, who surprisingly is arrayed as the 5th respondent. Her arrayal as the 5th respondent knocks the bottom out of the theory that she is under illegal detention or confinement. Marriage took place on 29.04.2003. No issues are born in the wedlock. The alleged detenue is now said to be pregnant. She has been missing from her house from 07.10.2010. The petitioner assumes that respondents 3 and 4, the sister and brother in law of the alleged detenue, are allegedly detaining her. We have heard the learned Counsel for the petitioner.

We have perused the records. We are unable to perceive any elements of illegal detention or confinement in the alleged disappearance/residence of the alleged detenue along with respondents 3 and 4. The learned Counsel for the petitioner is granted time to produce further material, if any, to induce the requisite satisfaction in us. In the meantime, we direct the learned Government Pleader to secure instructions and make submissions to enable us to authentically decide on the question of admission on the next date of posting.

Call on 10.11.2010.