Smt. Jamni Dewasi @APPELLANT@Hash State of Rajasthan & Ors

This petition seeking writ of habeas corpus is preferred by the petitioner Smt. Jamni Devi for release of her daughter Manju Devasi alleged to be in

illegal detention of the respondents no. 4 to 7 herein.

On 20.2.18, the corpus Ms. Manju was produced before the court. On being personally interviewed in camera as also in presence of her mother

Jamni Devi, the petitioner herein, the corpus Ms. Manju stated that she was staying with Ranaram s/o Goma Ram, the respondent no.4 herein.

The corpus Ms. Manju was found somewhat emotionally disturbed. That apart, there was possibility of her being under the influence of respondent

no.4 and therefore, she was directed to be kept at Nari Niketan, Jodhpur for a few days.

On 27.2.18, Ms. Manju was again produced before the court. On that day, she preferred an application with a prayer to set her at liberty to move

freely as per her own will. In the application preferred, inter alia it is stated that the marriage of the corpus Ms. Manju was solemnized with one Shri

Durgaram six years back and the ceremony of muklava was also performed. She stayed with her husband Durgaram for five years but since, he used

to beat her after consuming liquor, she left his company and stayed at her paternal home for one year and thereafter, the marriage between Durgaram

and the corpus Manju was dissolved as per social customs. It is stated that the corpus has entered into nata marriage with respondent no.4 herein with

the consent of her mother and brothers and in lieu thereof, the respondent no.4 has paid Rs.2 lacs to her mother.

Time was sought on behalf of the petitioner to file the counter to the application preferred by the corpus as aforesaid and therefore, the matter was

adjourned. However, no counter to the application has been filed on behalf of the petitioner.

Today, the corpus is again produced before us. While reiterating that she has entered into marriage with Rana Ram, the corpus Ms. Manju stated

that she is pregnant for eight months. She has expressed her desire in unequivocal terms that she wants to go with her husband Ranaram, respondent

no.4 herein, and not with her mother.

As per the Transfer Certificate of the corpus issued by the Shri Sarsawati Shiksha Niketan, Uchch Prathmik Vidhyalaya, Deoli and Aadhar Card,

the date of birth of corpus is 22.4.2000 and thus, Ms. Manju shall attain the age of majority on 21.4.2018.

In ‘Prathvi Singh vs. The State of Rajasthan & Ors.’ (D.B. Habeas Corpus Petition No.236/12, decided on 6.12.12), a Bench of this court

while dealing with similar issue regarding the custody of corpus who had not attained the majority, held:

“6. Before adverting to the rival contentions raised by the learned counsels for the parties, it may be stated that the petitioner by way of present

petition has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India seeking corpus of his daughter Pratibha

Kumari on the ground that the respondent No.4 had abducted and kept under illegal detention his minor daughter Pratibha Kumari. In this petition

serious disputes have been raised as regards the age and validity of marriage of Pratibha Kumari, daughter of the petitioner, with the respondent No.4.

However, it cannot be gainsaid that the jurisdiction of Habeas Corpus Petition under Article 226 of the Constitution of India is extraordinary in nature

where the High Court could not be expected to decide the disputed questions of facts as regards the age or validity of marriage of the detenue girl.

The paramount consideration before the court would always be the welfare and well being of the girl, whose custody is being sought by the petitioner.

In deciding such petitions, the court though is expected to keep in mind the relevant statutes and the rights flowing therefrom, cannot decide the

petition solely by interpreting the legal provisions. The court is required to consider the wishes of the girl also, if the girl is found to be old and matured

enough to form an intelligent preference as to with whom she would be more happy. The instant case is also one of such cases, which is required to

be decided with a human touch, without strictly construing the rights of the parties flowing from statutory provisions, more particularly while exercising

extraordinary jurisdiction under Article 226 of the Constitution of India.

Though both the sides have submitted number of documents in support of their respective contentions as regards the age of Pratibha Kumari, as

also the marriage of Pratibha Kumari with the respondent no.4, this court does not propose to enter into any such disputed questions of facts. The

decisions relied upon by the learned counsel Mr. Upman for the petitioner pertain to the cases where the dispute had arisen with regard to the age of

the concerned accused so as to treat him juvenile or not, and the provisions contained in Rule 12 of the Juvenile Justice Rules were relied upon. Such

is not the case in the instant petition. Of course, such provision could be taken into consideration by way of a guideline, but it need not be strictly

followed while deciding the Habeas Corpus Petition. Further, though there is some substance in the submission of Mr. Upman that the marriage with a

minor girl would be an offence under Prohibition of Child Marriage Act, the said question also could not be examined by this court in the present

petition. Whether the alleged marriage of Pratibha Kumari with the respondent no.4 is a valid marriage under the Hindu Marriage Act or not is not the

issue to be decided by the court in the present petition. There are Special Forums and remedies available to the parties under such Acts for ventilating

their grievances and getting adjudications.

Since there were two sets of documents, one produced by the petitioner showing the date of birth of his daughter to be 5.5.97, and the other

produced by the respondent No.4 showing her age to be 14.2.93, the court had directed for the medical examination of Pratibha Kumari for

determination of her age, and as per the report of the Medical Board of SMS Medical Hospital, Jaipur, the age of Pratibha Kumar was found to be

above 18 years and below 20 years. In order to ascertain the level of maturity and intelligence of the girl Pratibha Kumari, the court had also asked

many questions to her in the open court as well as in the chambers in presence of her parents and the respondent No.4, and had found that she had

good academic career so far and was studying in the Second Year of B.Sc. at Bikaner College. We had also found that she was matured and

intelligent enough to take her own decisions. She had categorically stated before us that she would prefer to go with the respondent No.4 than her

parents, and that she would be more happy, and feel secured if she is sent with the respondent No.4. She had also stated that she had willfully married

the respondent No.4, and was staying with him at Trivendrum since last two months. Thus, though two contradictory sets of documents as regards the

age of Pratibha Kumari are available on record, considering the peculiar facts and circumstances of the case, we are inclined to allow her to go with

the respondent No.4 as per her wishes.â€​

In the instant case, the corpus shall attain the age of majority within a few months. Moreover, having conferred with the corpus Ms. Manju twice,

we are of the opinion that she is a girl of mature understanding and is in position to take her own decision and therefore, her preference to go with her

husband cannot be ignored by this court.

Thus, keeping in view the facts and circumstances noticed above as also overall welfare of the corpus, we are of the opinion that as per her

desire, Ms. Manju deserves to be permitted to stay with her husband.

Ordered accordingly.

Needless to say that we have not pronounced on the age and validity of marriage of corpus Ms. Manju. The parties are at liberty to avail the

remedies available to them in this regard under the law. The police shall be at liberty to investigate and take appropriate action in respect of

commission of offence, if any.

The petition stands disposed of.