Hetalben vs State Of Gujarat And Others

S.R. Brahmbhatt, J

Heard learned counsel for the parties. The present petition is taken out for seeking writ of habeas corpus in respect of corpus Ms. Neetaben with following prayers:-

"(i) This Honourable Court may be pleased to admit and allow this petition.

(ii) This Honourable Court be pleased to issue a writ or habeas corpus and direct the respondent No. 2 to produce before this Honourable Court grand maternal daughter of the petitioner viz. Neetaben Anarji Madhaji Thakor who is in illegal and unlawful custody of the respondent No. 3 to 10 and thereafter, the custody of the daughter Neetaben to the petitioner, in the interest of justice.

(iii) Pending admission and/or final disposal of this petition, this Honourable Court be pleased to direct the respondent No. 2 to secure the custody of his daughter maternal daughter Neetaben and produce her before this Honourable Court, in the interest of justice.

(iv) This Honourable Court be pleased to direct the respondent no. 2 to register offence under section 307 and 326 of Indian Penal Code in CR-I 23 of 2018 before Detroj Police Station, Ahmedabad and except to register two FIR's as CR-I 23 of 2018 and CR-I 25 of 2018 for same offence dated 16.06.2018, respondent no. 2 may register 1st FIR CR-I 23 of 2018 and add sections added which are mentioned in the separate complaint through CR-I 25 of 2018 before Detroj Police Station, Ahmedabad.

(v) This Honourable Court be pleased to pass such other and further orders, as this Honourable Court may deem fit and proper in the facts and circumstances mentioned above.

(vi) This Honourable Court be pleased to award costs of this petition from the respondent Nos. 2 and 3."

The facts, as could be seen from the contentions and the complaints with the police, would indicate that respondent no. 3 and the corpus have married with each other. We hasten to add here that we are not going into the permissibility of the marriage or otherwise. The fact remains that it has been reported that they have married and, out of union, a child is born. The corpus is still minor and in the complaint registered being FIR I-C.R. No. 25 of 2018, name of responden no. 3 as an accused appears by invoking the provisions of POCSO Act. In the peculiar facts and circumstances of the case, when the minor corpus was brought before the Court, she was carrying two months old infant. On 1.8.2019, the Court passed following order:-

"1. This petition has been taken out by mother of the Corpus for seeking writ of Habeas Corpus in respect of the minor daughter Ms. Neetaben Anarji Madhaji.

Today, the matter was requested to be adjourned to tomorrow. However, in the meantime, learned APP requested to keep the matter on board as he has received instructions that Corpus has been brought to the Court.

Accordingly, the Corpus was heard. It transpired that she has delivered a child, which is 2 months old only and she was present in the Court with the infant. The corpus was unwilling to go anywhere except with the respondent no. 3 and his parents and relation.

We are in fact find the situation, where we have to weigh the provisions of law along with the equity and wellbeing of the corpus and child. We have been informed by the concerned police officer Ms. P.N. Dhandhalya, Incharge PI, Mahila Police Station, that the FIR being I.CR. No. 25 of 2018 with Detroj Police Station is pertaining to POCSO Act, wherein, only one accused I.e. respondent no. 3 is shown to be the accused. In other words, the parents of the accused have not been shown as accused and when we have observed that infant of 2 months along with corpus, who is minor, if sent to Nari Savrakshan Gruh at present, there would be some problems I.e. psychological as well as question of requisite care and caution to the corpus and infant and therefore, as on date, we are of the view that corpus be permitted to stay with respondent no. 5, who is present in the Court and who has assured the Court through advocate Shri Prasad, appearing for respondent nos. 4 to 10 that corpus and infant will be taken care of and they would not now in any manner act, which may offend the provisions of law in any manner and corpus and infant be brought before the Court on the adjourned date.

In that view of the matter, matter is adjourned to 7.8.2019 as learned counsel for the petitioner as well as petitioner are not present in the Court today.

It goes without saying at this stage that this order would not come in the way of investigation and investigation need not be hampered in any manner and police authority shall continue with the investigation without there being any influence by this order."

Today, we once again inquired of the corpus and examined the entire situation. Counsel for the petitioner submitted that none from the petitioner side is present in the Court and, he could not indicate any cogent reason for resisting the submissions made on behalf of respondent nos. 4 to 10 for supporting the corpus and the infant. The Court was faced with the situation where there was an accused is in custody facing the charge of offence under POCSO Act, as the corpus is minor and the provisions of POCSO Act are squarely attracted. As against this, the minor girl and her infant are visibly traumatized on the very concept of being separated from respondent no. 4 or the parents of respondent no. 3 and the very consideration of sending the corpus along with infant to Nari Sarankshan Gruh also was required to be considered in light of the fact that the infant is only two months old and would surely need not only the proper care, medication and family warmth, in absence thereof, the infant and the minor's well being may get jeopardized. In such peculiar facts and circumstances of the case, we are of the view that when the accused's parents are not named as accused in FIR, for the time being, let the corpus and the infant remain with respondent no. 5, as ordered earlier, as otherwise it is likely to create a situation wherein the requisite care and caution required to infant and the minor may not be readily available. In those peculiar facts and circumstances of the case, we are of the view that in the paramount interest of the corpus and her infant, we do not disturb the present status quo position and we would review the situation after passage of some time so that, in the meantime, learned APP may ascertain the proper Nari Sanrakshan Gruh in which the care for infant and new mother could be provided. We propose to adjourn the matter for a period of eight weeks and, at the end thereof, on the next date, learned APP may give the complete details of the possible shelter home where we can consign the minor and her infant.

S.O. to 16.10.2019. Assurance given by Shri Prasad, learned advocate appearing for respondent nos. 4 to 10 shall continue.