Tejiben vs State of Gujarat and Others

A.M. Kapadia, J.—This matter was initially listed, for production ofcorpus Ranjanben @ Ashaben, on 9.12.2010. However, since the corpus is found out by the Kagdapith Police Station, who was in illegal detention of Respondent No. 4 -Bharatbhai Kanjibhai Parmar, they want to produce the corpus before the Court today. Therefore, Mr. LB Dabhi, learned APP mentioned at 11:00 a.m. and sought permission to circulate this matter and also to produce the corpus before the Court at 2:30 p.m. He has also stated that he has informed Mr. BC Rupera, learned advocate for the Petitioner about production of the corpus today. Wethere fore, granted permission to circulate this matter at 2:30 p.m. and also to produce the corpus before us. That is how, this matter is placed before us today at 2:30 p.m.

RULE.

Mr. Dabhi, learned APP appears and waives service of notice of Rule on behalf of the Respondent Nos. 1 to 3, whereas Mr. Gaurang Chudasama, learned advocate for Mr. Yatin Soni, learned advocate for Respondent Nos. 5 to 7 appears and waives service of notice of Rule on their behalf. Notice of Rule need not be served to Respondent No. 4 -Bharatbhai Kanjibhai Parmar since the corpus is found out from his illegal detention and he is at present behind the bar.

By filing instant petition under Article 226 of the Constitution of India, the petitioner has prayed to issue writ of Habeas Corpus or any other appropriate writ,direction and/or order directing Respondent No.3 to handover the custody of minor corpus Ranjanben @ Ashaben to her.

As per the averments made in the petition, the petitioner is serving in Ahmedabad Municipal Corporation as a worker since last four and half years on compassionate ground, as her husband, who was serving in Ahmedabad Municipal Corporation, expired before five years. The petitioner has five daughters and one son. The elder daughters namely Nayna and Madhu married and they are residing at their matrimonial home. The son namely Sanjay is aged about 18 years, residing with the petitioner and is unmarried. The younger daughters of the petitioner namely Ranjan @ Asha aged about 12 years and 9 months, Sangeeta aged about 11 years and Manju aged about 9 years.

5.1 It is further averred that out of these three daughters, one named Ranjan @ Asha was not found at home when the Petitioner came to home from her duty on 18.5.2010at 5:00 p.m. Therefore, the Petitioner made search of her daughter Ranjan nearby areas of her resident. On beingin quired from her another daughter Sangeeta, it was found that corpus Ranjanben @ Ashaben told her to go at the house of Respondent No. 6 Vasanti, who is a daughter of sister-inlaw of the Petitioner. Therefore, the Petitioner phoned to Respondent No. 6 and the Respondent No. 6 informed the Petitioner that the corpus has not come at her house and also informed that Respondent No. 4 -Bharatbhai KanjibhaiParmar, who is son of her uncle, also not found at home.

5.2 It is further averred that the Petitioner therefore, lodged complaint on 22.5.2010 before Respondent No. 3, PI, Kagdapith Police Station, which is registered as C.R. No. 124 of 2010 for the offence punishable under sections 363 and 366 of the Indian Penal Code.

5.3 It is further averred in the petition that the birth date of corpus Ranjanben @ Ashaben is 21.10.1997 and as on the date of filing of the petition, she was aged about 12years and 11 months.

5.4 It is further averred in the petition that the Petitioner made an application to Respondent Nos. 2 and 3and copy whereof has been sent to the Home Department on8.6.2010. The Petitioner thereafter, gave another application to the Hon''ble Chief Minister, PI, Crime Branchas well as to the Respondent Nos. 2,4 and 5, whereby she has requested to take immediate action in the matter and custody of her minor daughter corpus will be handed over to her.

5.5 It is further averred that on 2.6.2010, the office of the Hon''ble Chief Minister directed Respondent No. 2 to take action with regard to the application of the Petitioner. The Petitioner therefore, made another application on11.8.2010 to the Hon''ble Chief Minister, wherein she has stated that there is no action taken by the police authorities as per the direction issued to the authorities. The Petitioner has therefore, filed instant Habeas Corpus petition and prayed for the relief to which the reference is made in the earlier paragraph of the judgment.

This Court vide order dated 29.9.2010 issued Notice to Respondents, which was made returnable on 13.10.2010 and Respondent No. 3 PI, Kagdapith Police Station was directed to produce corpus Ranjanben @ Ashaben, who is allegedly inillegal detention of Respondent No. 4 Bharatbhai KanjibhaiParmar, before the Court on returnable date. There after, the matter was adjourned from time to time, as the corpus could not be trace out by the Kagdapith Police Station and ultimately, the matter was adjourned to 9.12.2010.

Since the corpus Ranjanben @ Ashaben is found out by Kagdapith Police Station, today at 11:00 a.m., Mr. LB Dabhi, learned APP mentioned and sought permission to circulate this matter urgently, so that he can produce the corpus before the Court. He has also stated that he has informed Mr. BC Rupera, learned advocate for the Petitioner about production of the corpus today. We therefore, permitted to circulate this matter today at 2:30 p.m. and also permitted him to produce the corpus before us. That is how, this matter is circulated today at 2:30 for production of the corpus.

On production of the corpus, we have ascertained from her about her wish and willingness and also inquired from her as to whether she was in illegal detention of Respondent No. 4 - Bharatbhai Kanjibhai Parmar. She has unequivocally terms stated before us that on 18.5.2010, one person named Vicky, whose full name is not known to her, came to her house and informed that your mother is calling and persuaded her to come with him. She therefore, went with Vicky. Vicky has taken her to one temple, at which place, Respondent No. 4 Bharatbhai Kanjibhai Parmar was waiting and thereafter, Vicky flee away from that place giving her custody to Respondent No. 4 Bharatbhai KanjibhaiParmar against her will and wish. Said Bharatbhai KanjibhaiParmar has taken her to Mehsana, where she was in illegal detention. Thereafter, she was taken to Kalol. Lastly, she was at Kalol. Since 18.5.2010, she was in illegal detention of Respondent No. 4 -Bharatbhai Kanjibhai Parmar againsther will and wish and the police has brought her today from the custody of Respondent No. 4 Bharatbhai Kanjibhai Parmar. Respondent No. 4 Bharatbhai Kanjibhai Parmar is distance relative of the corpus from her paternal aunt. She has also stated that at present, she wants to go with the Petitioner - her mother and on completion of 18 years, she would decide about her future.

So far as her birth date is concerned, there is no dispute either by the Petitioner or by the RespondentNos.5,6 and 7 that she was born on 21.10.1997. Therefore, on the date when she was kidnapped and took away by Respondent No. 4 Bharatbhai Kanjibhai Parmar, she was aged about 12 years and 7 months and at present, she is aged about 13 years and 1 month. Therefore she is minor and not sui jur is and therefore, obviously, mother is her natural guardian since her father has died. Therefore, mother is entitled to her custody statutorily.

Seen in the above context, the averments made in the instant Habeas Corpus petition are true. The petition therefore, deserves to be allowed by giving custody of minor corpus Ranjanben @ Ashaben to the Petitioner - her mother being natural guardian, who is personally present before the Court.

For the foregoing reasons, the petition succeeds and it is accordingly allowed. The custody of minor corpus Ranjanben @ Ashaben is handed over to the Petitioner - her mother being natural guardian, who is personally present before the Court.

Rule is made absolute.