Panchal Champaben Govindbhai vs State of Gujarat and Others

A.M. Kapadia, J.—RULE. Mr. L.B. Dabhi, learned APP appears and waives service of notice of Rule on behalf of Respondent Nos. 1, 2 and 3 whereas Mr. Ashok Parmar, learned Advocate appears and waives service of notice of Rule on behalf of Respondent No. 4.

By consent of the learned Advocates appearing for the parties, the matter is taken up for final hearing today.

By means of filing this petition under Article 226 of the Constitution, the Petitioner has prayed to issue a writ of Habeas Corpus or any other appropriate writ, order or direction directing Respondent Nos. 2 and 3 to produce the corpus-`Chhaya'', the daughter of the Petitioner who is allegedly in illegal detention of Respondent No. 4- Aasif Basmirmiya Sindhi and to hand over her custody to the Petitioner.

As per the averments made in the petition, the Petitioner is mother of corpus-Chhaya, who was born on25.11.1991. The Petitioner is widow and mother of two major sons, namely, Rakeshbhai and Pareshbhai and daughter Chhaya. The husband of the Petitioner has expired in the year 2006. Her elder son Rakeshbhai is residing separately in the same village where the Petitioner is residing and her another son Pareshbhai is residing at Ahmedabad whereas corpus Chhaya has been residing with the Petitioner.

4.1 It is further averred in the petition that she is very poor and maintaining herself and her daughter-Chhaya by working as a servant in the Gujarati School under the scheme of `Madhyahan Bhojan''. Her daughter Chhaya has studied upto 10th Standard but thereafter left the education as she failed in 10th Std.

4.2 It is further averred in the petition that her daughter Chhaya ran way on 18.10.2010 by taking 30 grams gold ornaments and Rs. 15,000/-in cash from her house. Therefore, Petitioner and other relatives and neighbours have tried to search out her daughter Chhaya and they came to know that Respondent No. 4 Aasif Basirmiya Sindhi has kidnapped her daughter. As per the further averments made in the petition, the Respondent No. 4 is also residing in the same village. It is further averred in the petition that her daughter Chhaya tied `rakhee'' on Respondent No. 4 on the day of `Rakshabandan'' and due to this brother-sister relationship, the Respondent No. 4 used to come to the house of the Petitioner and, therefore, he is known to her daughter - Chhaya.

4.3 It is further averred in the petition that thereafter the Petitioner and her relatives went to Rakhiyal Police Station for filing complaint regarding the alleged detention of Chhaya by the Respondent No. 4, but the police has refused to register the complaint since her daughter Chhaya is major. It is also averred in the petition that, thereafter, the Petitioner has requested to the father of the Respondent No. 4 to give back her daughter by searching out his son. He has also given several promises that he will search out Respondent No. 4 within 4-5 days and give her daughter back but after several promises, he could not perform his promises and, therefore, the Petitioner has sent one police complaint by RPAD on 29.10.2010.

4.4 It is further alleged that the Police Officers of Rakhiyal Police Station, Taluka - Dehgam, District - Gandhinagar, has not taken any steps on the complaint sent to it by the Petitioner nor Petitioner has received any response from the police on her complaint. Therefore, the present petition is filed for the reliefs to which the reference is made in earlier paragraph of the judgment.

This Court, vide Order dated 19.11.2010 issued Notice to the Respondent Nos. 1 to 4 which was made returnable on 26.11.2010 and Respondent No. 3, Police In-charge, Rakhiyal Police Station, Rakhiyal, Taluka - Dehgam, District - Gandhinagar, was directed to produce the corpus `Chhaya Govindbhai Panchal'' who is allegedly in illegal detention of the Respondent No. 4 - Aasif Basirmiya Sindhi, on the returnable date before this Court.

Today when the matter is called out, Mr. L.B. Dabhi, learned APP, upon instructions received from Mr. M.S. Kotwal, Police Sub-Inspector of Rakhiyal Police Station, who is personally present in the Court, states that, in compliance of the order dated 19.11.2010, corpus-Chhaya has been traced out from the custody of Respondent No. 4-Aasif Basirmiya Sindhi and he has brought the corpus with the assistance of Smt. Shantaben Bhallabhai,Woman Constable of Rakhiyal Police Station and wants to produce the corpus before the Court. Therefore, we have permitted to produce the corpus before us.

We have ascertained the wish and willingness of the corpus - Chhaya and also inquired from her that as to whether she is in illegal custody of Respondent No. 4- Aasif Basirmiya Sindhi. She has stated before us that she had affairs with the Respondent No. 4 Aasif Basirmiya Sindhi and her marriage with him has been solemnized on 18.10.2010 as per the Islam Shariyat and also registered the marriage in the Court. She has further stated that, as per the Muslim Law, she has also changed her name from `Chhaya'' to `Farhin Banu'' by fling an affidavit sworn by her. She has in unequivocal terms stated before us that she is not under illegal detention of Respondent No. 4 with whom her marriage has been solemnized on 18.10.2010 and since then she is residing with the Respondent No. 4 as his lawfully wedded wife. She has further stated that she is very happy with the Respondent No. 4 Aasif Basirmiya Sindhi as she is his lawfully wedded wife and she does not want to go with her mother and she wants to go to her matrimonial home and wants to reside with Respondent No. 4 permanently as his wife.

So far as her age is concerned, admittedly, as per the averments made in the petition, she has been born on 25.11.1991. Therefore on the date of incident, she is above 18 years of age. Therefore she is major. Therefore, she is sui juris and, hence, no fetter can be placed upon her choice of person with whom she wants to reside.

At this stage, Mr. Gaurav Chudasma, learned Advocate for the Petitioner, has submitted that at present corpus - Chhaya is under the influence of Respondent No. 4 Aasif Basirmiya Sindhi and therefore she is not able to understand her welfare. Therefore, this matter may be adjourned for 15 days and during that period she may be sent to `Nari Niketan'' , so that she think over about the steps taken by her and thereafter her wishes and willingness may be again ascertained.

The aforesaid contention is strenuously opposed by Mr. Ashok Parmar, learned Advocate for the Respondent No. 4 - Aasif Basirmiya Sindhi as according to him the corpus is above 18 years and, therefore she is aware about her welfare and she is lawfully wedded wife of the Respondent No. 4, she cannot be sent to `Nari niketan'' and her custody may be handed over to Respondent No. 4 Aasif Basirmiya Sindhi.

In the case of Gian Devi v. The Superintendent, Nari Niketan, Delhi and Ors., (1976) 3 SCC 234 the Supreme Court has observed that a woman who has attained majority is free to stay in any place she likes without constraint by her parents or husband. What is held by the Supreme Court in the above referred to case is that against her wishes, a major girl cannot be sent to `Nari Niketan''.

In view of the aforesaid authoritative pronouncement made by the Supreme Court in the above referred to judgment, the prayer made by Mr. Grurav Chudasama, learned Advocate for the Petitioner that the corpus Chhaya be sent to `Nari Niketan'' for a period of 15 days and during that period she may think over about the steps taken by her and thereafter her wishes and willingness be again ascertained, cannot be accepted and accordingly it is rejected.

We have considered the submissions advanced by Mr. Gaurav Chudasama, learned Advocate for the Petitioner, Mr. Ashok Parmar, learned Advocate for the Respondent No. 4 and Mr. L.B. Dabhi, learned APP for Respondent Nos. 1 to 3. We have also perused the averments made in the petition and more particularly the statement made by the corpus before us to the effect that her marriage has been performed with Respondent No. 4 as per the Islam Shariyat and has also changed her name as per the Muslim customs from `Chhaya'' to `Farhin Banu''. She has further in unequivocal terms states before us that she is not in illegal detention of Respondent No. 4 nor at present she is in the illegal detention of the Respondent No. 4. She further stated that she is very happy with the Respondent No. 4 Aasif Basirmiya Sindhi as she is his lawfully wedded wife and she does not want to go with her mother and she wants to permanently stay with the Respondent No. 4 as his wife.

Having gone through the facts of the case as well as the statement made by her before us, we are satisfied that corpus - Chhaya is above 18 years and, therefore, she is sui juris and as she is not in illegal detention of Respondent No. 4 with whom she has married and she wants to permanently reside with him at the matrimonial home, no fetters can be placed upon her choice of person with whom she wants to reside.

In view of the aforesaid state of affairs, it cannot be said that the corpus-Chhaya is in illegal detention of Respondent No. 4 -Aasif Basirmiya Sindhi. Therefore, we have permitted her to go with Respondent No. 4 - Aasif Basirmiya Sindhi.

Seen in the above context, instant Habeas Corpus petition lacks merit and deserves to be rejected.

At this stage, Mr. Gaurav Chudasma, learned Advocate for for the Petitioner, upon instructions received from the Petitioner, does not press this petition and seeks leave to withdraw the same.

The prayer made by him has not been opposed by Mr. L.B. Dabhi, learned APP for Respondent Nos. 1 to 3 and Mr. Ashok Parmar, learned Advocate for the Respondent No. 4.

Hence, leave to withdraw the petition is granted. The petition stands rejected as it is withdrawn. Rule is discharged.