Kusum vs State of U.P.& Ors.

Virendra Saran, J.—The habeas corpus petition at hand has been filed by Smt.Kusum through her alleged husband Amir Khan alias Raju praying that the petitioner be set at liberty. Presently the petitioner alongwith her infant child is confined in the Womens'' Protective Home, Lucknow.

From the narration in the habeas corpus petition, it is emerges that the petitioner Smt. Kusum is a major aged about 20 years.She of her free will married Amir Khan alias Raju in April 1994. The couple enjoyed their married life for about six months, but Ram Dularey who is stepfather of the petitioner (respondent No. 3) lodged report under Sections 363/366/376, IPC at police station Aliganj, Lucknow and it was registered as crime No. 270 of 1994. On the strength of the report, on 3091994 the police alongwith Ram Dularey, the stepfather of the petitioner, reached the petitioner''s marital home and arrested her alongwith her husband, motherinlaw and botherinlaw. On 2101994 the police got the petitioner medically examined at Mahila Hospital, Lucknow. According to the doctor''s opinion, the petitioner was a major aged about 18 years at that time. Photo copy of the medical examination report is Annexure 1 to the writ petition. The writ petition goes on to state that the petitioner was handed over to respondent Ram Dularey by the police even without being produced before a Magistrate and even without her statement being recorded under Section 164, Cr. P.C. which is usually done in such case. Para 9 of the writ petition mentions that habeas corpus Writ Petition No. 187 of 1995 was filed on behalf of the petitioner by her husband, but the same was dismissed on 1681995 by a learned Single Judge of this Court. Annexure 2 to the writ petition is copy of the said Judgment. In paras 10 and 11 of the writ petition, it is mentioned that in January 1996 t.he stepfather of the petitioner lodged yet another report at P. S. Aliganj, Lucknow under Sections 363/366, IPC which was registered as crime No. 35 of 1996 and in respect of this crime, statement of the petitioner was recorded under Section 164, Cr. P.C. by a Magistrate on 2211996 in which the petitioner stated that she was aged 20 years and was wife of Amir Khan alias Raju. The petitioner declined to go with respondent Ram Dularey and insisted that she be allowed to go with her husband. In para 12 of the writ petition, it is stated that the husband of the petitioner claimed Supurdigi of the petitioner by moving an application on 2411996, but the said application was rejected on the same day. Copies of the application and the order of the learned Magistrate are Anuexures 3 and 4 to the writ petition. By means of his order dated 2411996 (Aniiexure 4) the learned Magistrate directed that the petitioner may continue in the Protective Home, Lucknow.

In reply to the averments made in the writ petition a counteraffidavit of S.I. Sonkar Batou has been filed oa behalf of the State. A detailed counteraffidavit has been filed by respondent Ram Dularey. In his counteraffidavit, Ram Dularey has given his residence as JhaggiJhopadi, Near Petrol Pump, Aligasj, Luckaow and ia para 6 of his counteraffidavit, he stated that an international gang is working in India which is busy in getting Hindu girls converted into Islam and his case is a part of their nefarious activities. However, it may be observed that the allegations contained in para 6 of the affidavit do not find support by the stand taken by the State and there is not even a whisper in the counteraffidavit filed by SubInspector Sonkar Babu which may lend continence to this allegation. In the counteraffidavit of Ram Dularey, it is further stated that the petitioner Soil. Kusum is a minor and her date of birth is 3081983. The counteraffidavit goes on to state that Amir Khan alias Raju was having an evil eye on the petitioner and he kidnapped her on 2641994 regarding which FIR was lodge at P. S. Aliganj, Lucknow giving rise to crime No. 270 of 1994 and subsequently Smt. Kusum was recovered and handed over to him by the police and thereafter Amir Khan alias Raju filed habeas corpus writ petition No. 187 of 1995 which was dismissed. It is further stated in the counteraffidavit that on 1511996 Amir Khan alias Raju again kidnaped the petitioner and another case was registered as crime No.35 of 1996 under Sections 363/366/323/504/506, IPC. In the counteraffidavit, marriage of Smt. Kusum with Amir Khan alias Raju has been denied and it has been further asserted that Kusum has not embraced Islam and continues to be a Hindu. Regarding the statement made by the petitioner under Section 164, Cr. P.C., it is asserted in para 30 of the counteraffidavit that the petitioner has given the statement under Section 164, Cr. P.C. due to undue pressure of Amir Khan alias Raju.

The record shows that on 2251996 a Division Bench of this Court consisting of Hon''ble Mrs. Justice Shobha Dikshit and Hon''ble Mr. Justice A. S. Gill recorded statement of the petitioner who stated that she was 18 years of age. She further stated that Amir Khan alias Raju was her husband with whom she has entered into marriage of her own free will. She further stated that she was major and wants to go and live with her husband Amir Khan alias Raju. At the time of hearing ot this Writ Petition, we again summoned Kusum from the Protective Home, Lucknow. The petitioner appeared in Court having her iri fant child in her lap.

The material on the record goes to show that after the petitioner was given in Supurdigof respondent Ram Dularey, another FIR was lodged by Ram Dolarey in January 1996 regarding the second kidnapping of the petitioner and thereafter she was again recovered and was sent to the Protective Home on 2411996. Thereafter she filed the present writ petition and under orders of a Division Bench of this Court consisting of Hon''ble Mr. Justice S. H. A Kara and Hon''ble Mrs. Justice Shobha Diskshit she was medically examined on 2151996. Her medical examination shows that she was 18 years of age and was carrying pregnancy of six months. It appears that the conception of the petitioner was the result of cohabitation of the petitioner with Amir Khan alias Raju after the alleged second kidnapping and she has already delivered the child which was in her lap when she appeared before us on 2811997. The allegation in the supplementary affidavit dated 61119% of Amir Khan alias Raju that the child delivered by the petitioner was born from his union, appears to be prima facie correct, but we refrain from recording any categorical finding on this point.

It is not disputed that Smt. Kusum has taken the stand that she has married with Amir Khan alias Raju and she has insisted that she may be set at liberty so that she may live happily with her husband Amir Khan alias Raju. As mentioned earlier, she gave her statement before a Bench consisting of Hon''ble Mrs. Shobha Dikshit and Hon''ble Mr. Justice A. S. Gill that she had married with Amir Khan alias Raju out of her own free will; she was a major and she wanted to go and live with her husband Amir Khan alias Raju. Even earlier when her statement under Section 164, Cr. P.C. was recorded, she had stated that her mother was not alive ; respondent No. 3 Ram Duiarey was not her real father and she had married Amir Khan alias Raja out of her ownfree will.

Sri H. S. Jain, learned Counsel appearing on behalf of respondent No. 3 has submitted that SIM. Kusum continues to be Hindu and she has not converted to Islam, and as such, she cannot beallowed to go and live with a person of a different communiiy. We are afraid that the personal liberty of a citizen enshrined in Article 21 of Constitution cannot be taken away or even eclipsed by clash of religions or by communal feelings. The moot question in the present case is whether Scat Kusum has attained the age of 18 years and is a major or not ? From the very beginning the stand taken by Amir Khan alias Raja and Smt Kusum has been that Smt Kusum is major. In reply, respondent No. 3 has filed photo copy of a certificate purporting to be from the Principal, Lalita Shastri Montessory School, Aliganj, Lucknow alongwith the counteraffidavit The certificate purports to be dated 30101994 and in it the date of birth of Smt Kusum has been mentioned as 3081983. However, we are unable to place any reliance of this certificate. The certificate has been given on a plain piece of paper. It is not even on the letterhead of the Principal. It does not mention the date of admission, class in which she studied and the date when her name was struckoff from the rolls. The certificate does not even say that the petitioner ever studied in Lalita Shastri Montessory School. In the rejoinder affidavit, it is mentioned that this certificate is not genuine and we are not at all impressed by the certificate which appears to have been given privately and does not contain any particulars. Even the residence of Ram Duiarey, father of Smt. Kusum has not been mentioned in it. As against this, there is positive evidence that the petitioner is a major. Annexure 1 to the writ petition is copy of medical certificate of Superintendent, Womens'' Hospital, Lucknow dated 24101994 in which it is mentioned that she was 18 years of age. Learned Counsel for respondent No. 3 has drawn our attention to the judgment in habeas corpus writ petition No. 187 of 1995 which was rendered by a learned Single Judge of this court on 1681995 in which it was observed that it cannot be said that Smt. Kusum was proved to be a major. However, the Judgment does not reveal that the medical examination report of the petitioner regarding her age was filed in that petition. It was in view of the above that the Bench consisting of Hon''ble Mr. Justice S. H. A. Raza and Hon''bie Mrs. Justice Shobha Dikshit directed that Smt, Kusum be again medically examined. The order was passed on 1651996 and Smt. Kusum was again medically examined on 21.5.1996. The doctor has opined that Smt. Kusum had attained the age of 18 years. We also summoned Smt Kusum from the Protective Home. Whatever may have been her looks in the year 1994 and 1995, bat now in the year 1997 she appears to be sufficiently grow Bup and there is no reason to reject the medical opinion. After her medical examination eight more months have elapsed. Thus, whatever might have been the position earlier, the petitioner is certainly a major now and her right to personal liberty under Article 21 of the Constitution has to be restored.

Sri Jain has contended that the petition has been moved through Amir Khaa alias Raju on behalf of Smt. Kusum who is himself accused in the kidnapping case. Sri Jain has relied upon the case of Mohd Ikram Hussain v. State of U.P., AIR 1964 S. C. 1625 and has submitted that Amir Khan alias Raju is accused in the case of kidnapping of Smt. Kusum and, as such, a writ should not be issued in his favour for the custody of a woman for whose kidnapping he is charged with. We have given our anxious consideration to the argument addressed by Sri Jain, but we are of the view that the case of Mohd. Ikram Hussain (supra) is clearly distinguishable from the instant case. In the case of Mohd. Ikram Hussain (supra) the woman in question, namely, Kaniz Fatima was staying with her father and the person who wanted her custody was an accused in her kidnapping, but in the present case Smt. Kusum is not staying with her father but is confined along with her infant child in the Womens'' Protective Home, Lucknow by virtue of the order dated 2411996 passed by the learned Judicial MagistrateIII, Lucknow and for all practical purposes she and her infant child are imprisoned. Moreover, in the present case, Smt. Kusum has appeared in this Court on 2251996 and has categorically stated that she was a major and wanted to go and live with Amir Khan alias Raju and, thus, she herself has prayed before this Court for being set at liberty,

In a very recent Division Bench case of Pushpa Deviv, Rajwami Devi, 1995(1) 31C 189) the facts of which were simitar to the present case, this Court has articulated as under:

".....It does not matter as to whether Guddu

was duly authorised by her or stood in some relationship with her or not as the matter are brought to the notice of Court and Pushpa Devi has prayed in person for her release.

"The first thing to be seen in the case would be as to whether her detention is at all legal and for that matter, the facts may be mentioned in the form that Pushpa Devi, according to her petition had left the house of her own wilt on 13694 and for that occurrence on FIR was lodged by Shri Teerath Ram, her father on 571994 which was registered at Crime No. 133 of 1994 under Sections 363/366, IPC. According to the petition, she was taken in custody by the police on 26101994 for the purposes of above said first information report and she was also examined before Magistrate for a statement under Section 164, Cr. P.C. where she had stated that she has married Guddu of her own will and that there was no compulsion except from her parents who were threatening her. After this statement, she has been directed to be detained in Nari Niketan. An application by her father for custody of her person has been rejected by the Magistrate. It was also contended that Smt. Pushpa Devi is a major and as an alternative argument, it was also contended that she could not be detained even if she was below the age of sixteen years against her own will."

The Court went on to observe"

"Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen could be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate, has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Section 363, 366, IPC. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no Saw at least none has been quoted before us whereunder the Magistrate may direct detention of a witness simply because he does not like her to go to any particular place. In such circumstances, the direction of the Magistrate that she be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of ail minors."

There is yet another earlier articulation of this Court on the point in the case of Mrs, Kafyani Chaudhari v. The State ofU.P and others, 1978 Cr. LJ. 1003 in which a Division Bench of this Court consisting of Hari Swarup and U. C. Srivastava, JJ. held that no girl or woman can be kepi in Protective Home unless she is required to be kept there either in pursuance of the Suppression of immoral Traffic in Women and Girts Act, or under some other law permitting her detention in such a Home. In the present case also, the petitioner is not accused of any case and, as such, she cannot be kept in confinement in the Protective Home in violation of the Constitutional guarantee under Article 21.

Another submission of Sri Jain is that the earlier habeas corpus petition No. 187 of 1995 filed by Amir Khan alias Raju claiming custody of the petitioner was dismissed by a Single Judge of this Court on 1681995. Copy of the judgment has been filed as Annexure 2 to the writ petition which goes to show that the Court was moved by the fact that it was not proved that the petitioner was major and, as such, since there was no satisfactory evidence of conversion of the petitioner Islam, there was a question mark on the legality of petitioner''s marriage with Amir Khan. At that time the petitioner was staying with her father and hence the Court declined to interfere. But today the situation has changed and the petitioner and her child are confined in the Protective Home and she has herself appeared in this Court and prayed for her release. We have already observed above that the petitioner is now a major. The petitioner has also delivered a child which she has allegedly conceived from Amir Khan. In these circumstances, the mere fact that the earlier habeas corpus Petition had been dismissed, is not a ground to dismiss the present petition. Reference may also be

made to the case ot Lallubhai Jogibha iPatel v. Union of India and others, 1981 SCC (Cr. 463) in which the Supreme Court has observed that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. The principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. In the present case, the circumstances and considerations have entirely changed since the dismissal of the Writ Petition No. 187 of 1995 as by lapse of time the petitioner Smt. Kusum has become a major. Moreover, she is now confined in the Protective Home whereas earlier she was staying with her father. For all these reasons, we are of the view that dismissal of the earlier habeas corpus petition, which was based on different cause of action does not bar issue of a writ in the present case.

We have already observed that Smt. Kusum has given birth to a child from her union with Amir Khan alias Raju and she has prayed to the Court to set her at liberty so that she may live a happy married live with Amir Khan alias Raju. The petitioner has already remained in confinement in the Protective Home for more than an year.If she remains confined any further, it may create several complication which may ruin not only her life, but also the life of her child and it is expedient in the interest of justice that she be set at liberty.

Before parting with, it may also be observed that mother of Smt. Kusum has already died and according to the writ petition and the statement of the petitioner recorded by the learned Magistrate under Section 164, Cr. P.C. respondent No. 3 is not the real father of Smt. Kusum. This assertion in the writ petition has not been controverted in the counteraffidavit.

In the premise, the habeas corpus petition is allowed. The superintendent, Protective Home, Lucknow shall set at liberty Smt. Kusum and Smt. Kusum would be free to go and live with Amir Khan alias Raju as prayed by her. The Senior Superintendent of Police, Lucknow shall provide police escort to the petitioner from the Protective Home to the place where she wants to go in case a request is made to this effect by the Superintendent of Protective Home or by the petitioner or by Amir Khan alias Raju on behalf of the petitioner.