Ram Charan Khandelwal vs State of Rajasthan and Another

S.S. Byas, J.—The petitioner is a father and he has filed this habeas corpus petition for releasing his daughter Kumari Usha Khandelwal from the Rajya Mahila Sadan, Jaipur.

Briefly recalled the material facts are, that Usha Khandelwal daughter of the petitioner was living with him in Bhilwara. On 2-9-1989, Usha came out of the house and did not return thereafter. The petitioner made inquiries and learnt that when Usha came out of the house, she was abducted by Pradeep Kumar, Sheru alias Jamiluddeen and Murari Agrawal. They took her forcibly on scooter. It is further stated that the petitioner went to the Police Station, Kotwali (Bhilwara) on the same day and lodged a written report of the incident. The police registered, a case and proceeded with the investigation. On 6-9-1989, Usha appeared at the Police Station, Kotwali, Bhilwara and was taken into custody. She was produced before the Judicial Magistrate, Bhilwara on 7-9-1989. Learned Magistrate passed an order, Annexure-1 and sent Usha to Rajya Mahila Sadan, Jaipur. She was thereafter brought to Jaipur and is now living in Rajya Mahila Sadan, Jaipur under the orders of the Judicial Magistrate. Her statement u/s 164 Cr. PC was recorded on 22-9-1989.

It is contended that Usha is a minor and her custody should there fore, be delivered to the petitioner, who being the father, is her natural guardian. On 18-30-1989, Usha was called from Rajya Mahila Sadan and her statement was recorded. She expressed her desire to go and live with Sheru alias Jamiluddeen. A notice was, therefore, issued to Sheru alias Jamiluddeen He filed his affidavit stating therein that Usha renounced Hinduism and embraced Ishlam executed an agreement on 4-9-1989 to live with him as his wife. A photo-stat copy of the agreement was also filed by him.

The police authorities, Bhilwara filed an affidavit stating therein that the case has created mounting communal tension in the town and when the Judicial Magistrate passed the order on 7-9-1989, large number of people belonging the two communities of the Hindu and the Musilim gathered in the court premises.

It would be useful to state here that on the directions of the court, Sheru alias Jamiluddeen filed an additional affidavit on 26-10-1989, in which he admitted that he is already a married person having five children from his Muslim wife.

The question arising for our decision is as to whether the custody of Usha should be delivered to her father, the petitioner or to Sheru alias Jamiluddeen or should continue to live in the Rajya Mahila Sadan, Jaipur?

On 4-1-1990, an affidavit of Usha Khandelwal was received by the court through the Superintendent, Rajya Mahila Sadan, Jaipur. This affidavit is dated 2-1-1990. In her this affidavit, Usha stated that she had earlier given the statement in this court on 18-10-1989 on account of sentiments and emotions and that she wants to live with her parents.

We have heard the learned Counsel for the parties at length.

The question which arises for consideration is as to Usha Khandelwal is a minor or major. There is conflicting evidence on this point. The horoscope filed by her father describes her date of birth as 6-5-1973. The school entry shows 4-7-1971 as her date of birth. The entry in the birth and death register of the Gram Panchayat shows 4-7-1974 as her date of birth and the medical examination based on ossification of bones shows her age between 18-19 years. We are therefore, unable to say as to whether Usha had attained the age of 18 years or not. This matter requires evidence.

The question whether Usha had conducted marriage with Sheru alias Jamiluddeen is also a baffling one. In her statement recorded on 18-10-1989, she did not state that marrige took place, between her and Sheru. So also in her statement, Annexure-2, recorded on 22-9-1989 u/s 164 Cr. PC she did not state that any marriage took place between her and Sheru alias Jamiluddeen. As such this question again requires evidence and a deep probe. Assuming that Kumari Usha has attained the age of 18 years, she should be then freed from Rajya Mahila Sadan, Jaipur. Since in her affidavit dated 2-1-1990 she has expressed her desire to go and live with her parents, she should be allowed to do so. In her affidavit, she has relised from her statement recorded in this court.

Assuming otherwise that Usha has not attained the age of 18 years, it would be then fair that she should be allowed to live with-her parents, who are her natural guardian. She has definitely attained the age of discretion being nearly between 18 to 19 years in age according to the conflicting material on the point. We have already stated that we are unable to say as to whether any marriage had taken place between Usha and Sheru alias Jamiluddeen. More over, Sheru has already a Muslim wife and five children from her. In these circumstances, if Usha is taken to be a minor below 18 years of age, it would not be fair to deliver her custody to Sheru alias Jamiluddeen, who has already a Muslim wife and five children.

Taking all these circumstances into consideration and specially the desire of Usha expressed in her affidavit dated 2-1-1990, she is freed from the Rajya Mahila Sadan, Jaipur and is allowed to go to her parents.

Since the matter is delicate and looking to the communial tension we direct the Police should escort her from the Rajya Manila Sadan, Jaipur to the house of her parents at Bhilwara or where ever they are living. A copy of this order be immediately sent to the Superintendent, Rajya Mahila Sadan, Jaipur for compliance.

The habeas corpus petition shall stand accordingly disposed of.