Allahabad High Court
Smt. Pawan Kumari vs State Of U.P. & 5 Others on 8 July, 2014
Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Chief Justice's Court
Case :- WRIT - C No. - 27758 of 2014
Petitioner :- Smt. Pawan Kumari
Respondent :- State Of U.P. & 5 Others
Counsel for Petitioner :- K.K. Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Dilip Gupta,J.
The petitioner and the fifth respondent were married on 9 March 2008. The petitioner gave birth to a female child and a male child. The daughter is about four years old and the son is aged about one year. The allegation of the petitioner is that she had gone to visit her parents in connection with a religious ceremony on 20 February 2014 and when she returned, she was taken to the Station House Officer, Dumariyaganj, District Siddharth Nagar and was detained in the lock-up together with her children. Thereafter the petitioner was produced on two or three occasions before the Deputy District Magistrate/Sub-Divisional Magistrate, Dumariyaganj, District Siddharth Nagar, who has been impleaded as respondent no.2. On 23 February 2014, the second respondent passed an order directing the petitioner to proceed with her children to her matrimonial home and the Station House Officer was directed to provide protection to her and her children.
The case of the petitioner is that the fifth respondent was not ready to take her back and on his persuasion, the police prepared a chalani report and produced her before the second respondent. The second respondent passed an order on 25 February 2014, stating that the petitioner had informed him that after her marriage to the fifth respondent, a girl was born; that thereupon she contacted the sixth respondent, who is not married and a male child was born from that relationship. The order of the second respondent records that because the male child has been born out of a relationship between the petitioner and the sixth respondent, neither the in-laws nor the husband of the petitioner are ready to take her back. The second respondent passed the impugned order recording that the petitioner had expressed a desire to go with the sixth respondent following which, he entrusted her supurdagi to the sixth respondent.
When this petition came up for hearing, the principal grievance of the petitioner was that the second respondent could not have handed over the supurdagi to the sixth respondent. The petitioner is a major and she was not ready and willing to proceed with the sixth respondent. The petitioner seriously contested what was recorded in the impugned order passed by the second respondent. She stated that as a result of the observations made in the impugned order passed by the second respondent, she would virtually be deprived from pursuing her rights and claims against the fifth respondent in respect of her marital tie and matrimonial home.
In this background, on 19 May 2014 we had called upon the second respondent to explain the circumstances in which he had passed the impugned orders at Annexure Nos.1 and 2.
Subsequently, on 28 May 2014, the Court had the benefit of interviewing both the petitioner and the sixth respondent, who were present in the Court. A notice was directed to be issued to the fifth respondent and in the meantime, the parties were referred to the Mediation Cell. The fifth respondent has not been served. The fifth respondent is stated to be working as an Auto Rickshaw Driver in Mumbai.
In this background, learned counsel appearing on behalf of the petitioner has urged that the petition may be heard on merits and the impugned order may be quashed and set aside since, according to the petitioner, the order is palpably arbitrary and perverse.
The petitioner evidently has a matrimonial dispute with the fifth respondent, who is her husband. Her grievance is that she has been prevented from entering her matrimonial home, as a result of which she is left in the lurch with her one year old male child. The daughter is in the custody of her in-laws.
We find considerable substance and the merit in the petitioner's contention that the Sub-Divisional Magistrate had absolutely no jurisdiction to adjudicate upon various aspects that he has referred to in his order, which is impugned in these proceedings. The petitioner has seriously contested that she had made any statement as alleged in the impugned order of the second respondent. The impugned order which has been passed by the second respondent contains various findings and observations which would seriously impinge upon the legal rights and remedies which are available to the petitioner and which can only be espoused before and determined by a Court of competent jurisdiction. The Sub-Divisional Magistrate had no jurisdiction to go into these aspects at all. Moreover, the petitioner is a major and is entitled to take an independent decision as to what course of action she intends to pursue including the place where she desires to reside. The second respondent has acted with palpable perversity in directing that the supurdagi of the petitioner shall be handed over to the sixth respondent. She is a major. A woman is not and cannot be treated as the property of any person. A woman has her own identity as a human being. She has a constitutional entitlement to a recognition of her dignity which finds an emanation in Articles 15 and 21 of the Constitution. She is entitled to live as she wishes, to entertain beliefs as she desires and to pursue avocations of her choice. The second respondent miserably failed to recognize this fundamental principle. Such orders cannot be countenanced because they are destructive of the identity of a woman, based on her gender. In 'handing over' the petitioner to the sixth respondent, the impugned order subjects her to the control and direction of another. That is constitutionally impermissible. We are, therefore, of the opinion that the impugned order is manifestly arbitrary and contrary to law and would have to be quashed and set aside.
In consequence, we clarify that all the observations contained in the impugned order shall be treated as non est and shall not be relied upon in any proceeding before any judicial or administrative authority.
We, accordingly, allow the petition and quash and set aside the impugned order dated 25 February 2014 (Annexure No.2) passed by the Sub-Divisional Magistrate, Dumariyaganj, District Siddharth Nagar.
The writ petition is, accordingly, disposed of.
There shall be no order as to costs.
Order Date :- 8.7.2014
RKK/-
(Dr. D.Y. Chandrachud, CJ)
(Dilip Gupta, J)
