Smt. Manju Yadav Thru' Its Husband ... vs State Of U.P. & 2 Others
2016 Latest Caselaw 4504 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 22578 of 2016
 

 
Petitioner :- Smt. Manju Yadav Thru' Its Husband Yogendra Yadav
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Anil Kumar Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Abhai Kumar,J.

This petition has been filed to issue a writ, order or direction in the nature of habeas corpus for producing the corpus - Smt. Manju Yadav before this Court who is said to be legally wedded wife of the petitioner- Yogendra Yadav.

The brief point that is under consideration for this order is regarding the maintainability of writ of habeas corpus when an order of competent court/magistrate court is in existence for giving the minor girl in the custody of father after she was recovered during the investigation upon an FIR lodged under Sections 363 and 366 IPC.

The argument of learned counsel for the petitioner is two fold. Firstly, that Article 21 of the Constitution guarantees liberty of a citizen irrespective of her age, and a girl who has married and has gone out of her free will with the accused, cannot be detained against her wishes whether she is minor or major. Secondly, it is contended that availability of alternative remedy is no bar in maintainability of writ of habeas corpus and it is also stated by the learned counsel that even if the order of magistrate court is in existence regarding the custody of the girl, even then writ of habeas corpus is maintainable.

This Court is also of the considered view that Article 21 of the Constitution of India, provides guarantee against life of personal liberty except according to procedure established by law.

A person what to say about girl cannot be detained against one's wishes unless it is provided by law. This point was considered by a division bench of this Court in the case of Kalyani Chaudhary Vs. State of U.P., 1978 Cr.L.J. 1003, wherein it was provided that in pursuance of Suppression of Immoral Traffic in Women and Girls Act, 1956, a girl cannot be sent to Nari Niketan, unless it is permitted to detain her in such a Home. Hon'ble Judges, observed as follows:

"4. A reading of the provision of the Suppression of Immoral Traffic in Women and Girls Act clearly shows that a person can be kept in a Protective Home only when she is being dealt with under the Act. No person can be kept in the protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or under some other law permitting her detention in such a Home. It is admitted that the case does not fall under this Act, no other law has been referred to."

This is abundantly clear that personal liberty of a person cannot be curtailed by any order, unless it is passed in accordance with law. So the contention of the learned counsel for the petitioner that right under Article 21 has been guaranteed is curtailed by the order of the magistrate court is to be seen in the perspective whether any such right to the magistrate is being provided by law or not.

Learned counsel fortified his assertions on the basis of observations made by this court in the cases of Smt. Mala (corpus) and another Vs. State of U.P. and others, 2015 (9) ADJ 737 (DB); Pushpa Devi alias Rajwanti Devi Vs. State of U.P., (1995) 1 JIC 189 and Sanno Devi Vs. State of U.P. and others, Hapeas Corpus No. 309 of 2015.

In the case of Smt. Mala (supra), division bench of this court has elaborately discussed the detention of a girl in Nari Niketan by the order of a magistrate court/competent court and came to the conclusion that judicial magistrate did not have any right to snatch the custody of the detenue from her husband and place her in a Protective Home. Division Bench also observed the contential issue whether a minor can be sent to Nari Niketan against her wish, and observed that it is no longer res-integra and stands conclusively settled by a catena of decisions of this Court. The case of Smt. Kalayani (supra) was referred by the bench and quoted the following portion as follows:

"No person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home."

Further the case of Pushpa Devi (supra) was also discussed by the division bench and observations made in Pushpa Devi's case is reproduced below:

"In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it."

The division bench further discussed the law laid down in the case of Smt. Raj Kumari Vs. Superintendent, Women Protection, Meerut and others House, 1997 (2) AWC 720. In Smt. Raj Kumari's case, the detenue was sent to Protective Home and in that circumstances it was found unwarranted that the order of the magistrate directing for her detention till the party concerned gets a declaration by the Civil Court or the competent Court of law regarding her age. Division Bench further discussed other proposition made by another division bench of this Court in Habeas Corpus No. 146 of 2015, Smt. Preeti Nishad through her Husband Mahendra Kumar Vs. State of U.P. and quoted the observation made by the division bench in Smt. Preeti Nishad (supra):

""The main objection of Sri S. N. Tilhari, learned A.G.A. that the petitioner should be asked to file revision at this stage will be defeating the spirit of Article 21 of the Constitution of India. The petitioner is neither an accused nor an offender of law. She is simply a citizen of this country who has done no wrong. She is major. The C.M.O. concerned has given her age to be around 20 years. This is based on medical examination and x-ray report. So far the certificate submitted by the father is concerned, it appears to be fabricated. Detenue has clearly mentioned that she has never studied in the school from where the age certificate has been obtained. It is not a matriculation certificate. It is a lower class certificate issued recently after the controversy arose. It cannot be trusted compared to the C.M.O. report and her own version before the Court."

After discussing ratio laid down by various benches of this Court, division bench observed as follows:

"We now proceed to examine the third objection raised by learned A.G. A. before this Court that the detenue being a minor cannot be set at liberty and allowed to go with her husband merely on account of her having solemnized marriage with him. The detenue-petitioner no. 1 as per her date of birth recorded in her Transfer certificate, is at present aged about sixteen years two months. There is nothing on record showing that the mother or the father of the corpus had made any application claiming her custody before the learned Magistrate. There is also no dispute that the petitioner no. 1 has solemnized marriage with petitioner no. 2, Gautam Chauhan, and they were living as husband and wife till the petitioner no. 1 was snatched away from her husband's custody and sent to Nari Niketan. A Division Bench of this Court in the case of Sonu Paswan Versus State of U. P. and another reported in 2013 (31) LCD 1107 has held that "a child marriage will be voidable at the instance of the minor. Otherwise, the marriage is not void ipso facto. In this view also the Magistrate does not have any right to snatch the custody of the detenue from the husband and place her in a protective home."

Learned counsel for the petitioner further made his thrust on the basis of law propounded in the case of Sanno Devi (supra). Division Bench of this court in that case while discussing the point giving the custody by a magistrate court after taking the statement under Section 164 Cr.P.C. of the victim thereby quashed the order of the magistrate court dated 7.1.2015 passed by Additional Chief Judicial Magistrate IIIrd, Hardoi and certain observations made by the division bench of this court are reproduced below:-

"29- While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated , with a view to promote substantial justice.

35- When the facts are cumulatively considered, we find that liberty of the petitioner is being curtailed without any legal cause. Order Annexure No.-1 has been passed by the Magistrate without giving due importance to the personal liberty of the petitioner. The desire of the petitioner has been ignored without any legally tenable reason. The age determined through Medical/ossification test has been overlooked for the wrong reasons.

The ratio laid down by the division bench as well as in the above referred decisions per-se not applicable for the purpose of order under consideration. The only consideration that is required to be dealt with is regarding the maintainability of the writ of habeas corpus during existence of an order of a competent court whereby minor girl was given in the custody of her father.

All the judgments referred above are conspicuously silent regarding the order when custody of the girl was given to the parents. All the judgments dealt with the position where the girl was sent to Nari Niketan against her wishes and this Court is totally inconsonance with the observations made by the above referred division bench as well as bench of this court that a girl either minor or major cannot be sent to Nari Niketan against her wishes but what will happen if a minor girl has been given in the custody of her parents is not being discussed elaborately.

The observation of the division bench in the above referred cases that even a minor girl cannot be sent to Nari Niketan or otherwise is not elaborate enough to include the order regarding giving the minor girl to the parents. This Court is not inclined to discuss the order of the magistrate court in detail whether magistrate court reached to the conclusion regarding the minority of the girl is correct or not and whether magistrate court gave the custody to the parents without observing the specific provisions made in this regard.

No doubt there was an order in existence for giving the girl to the parents may be against her wishes and by the order of the magistrate court girl is said to be minor.

This Court is also of the view that was taken by the learned counsel for the petitioner that the alternative relief cannot abrogate the right of a person to seek remedy in the writ jurisdiction. When alternative remedy has already been exhausted then can a prayer under writ jurisdiction is maintainable where the order of the magistrate is not perse illegal or devoid of merit. Where by the order magistrate directs the girl to be sent to Nari Niketan is patently illegal order and in no circumstances that order is maintainable. In the circumstances, in the above referred writ petitions relief was given by the court.

Whether order giving a minor girl in the custody of parents can be said to be illegal order, certainly not.

Reference of Section 361 IPC is necessary and punishment for that is provided under Section 363 IPC. Section 361 is reproduced below:-

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception --This section does not extend to the act of any person who in good faith believes himself to be the father of an ille­gitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose"

When a minor girl under the age of 18 years is taken away from the lawful guardianship then that offence is punishable under Section 363 IPC. It is inherent right provided to lawful guardian to have the custody of a minor girl under the age of 18 years and whenever this right of lawful guardianship is infringed then he is having right to lodge an FIR.

After recovery of the girl, if she is again restored to the lawful guardianship then that order cannot be said to be illegal. When a magistrate finds that the girl is minor and has been taken away from the custody of the lawful guardianship, even if she is a consenting party, offence is made out and in the circumstances directing the girl into custody of lawful guardianship, cannot be an order that can be said to be patently illegal.

It is stubbornly contended by the learned counsel for the petitioner that the division bench decisions referred above clearly hold that even a minor girl who has married to the abductor cannot be sent back, and it is her right to remain with the person of her choice and whom she has married and have spent time with him after marriage or even without marriage.

At this juncture, I would like to draw the attention towards the observation made by the division bench of Delhi High Court wherein marriage of minors was discussed elaborately and the court has observed as follows in paras 16 and 18:

"16. In our judgment in Ravi Kumar v. The State and Anr. and Phoola Devi v. The State and Ors. (supra), we followed the existing legal position as noted in the preceding paras as the marriages solemnized in contravention of the age prescribed under section 5(iii) of the Hindu Marriage Act i.e 21 years for male and 18 years for female were neither void nor voidable under sections 11 and 12 of the Hindu Marriage Act. Such under age marriages were only punishable under Section 18 of the Hindu Marriage Act with imprisonment of 15 days and a fine of Rs. 1000/- as also under the provisions of Child Marriage Restraint Act.

18. `Run Away Marriages' are manifestation of a generational change due to variety of factors, including increased interaction between the sexes, with young boys and girls attaining maturity rapidly. It is a complex problem with inter play of social, economic, religious, caste, educational factors, including sex education and vulnerability and backwardness of the weaker sex having its impact. The Child Marriage Restraint Act, 1929 as well as relevant provisions of the Hindu Marriage Act are social legislations aimed at protection and development of the vulnerable sex and have to be interpreted and worked accordingly. The consequences of considering such marriages as void or voidable need to be evaluated since the State as well as the social reformists who have not been successful to change the mindset of the people tuned to early marriages. By an estimate, prevalence of child marriages in the major States of West Bengal, Rajasthan, Bihar and Madhya Pradesh varies from 56 to 59%. Moreover, it is also to be noted that any adverse fall out of any law that makes such underage marriages as void or voidable would be borne by none other than the women and their progeny.

It is for the Parliament to consider whether the present provisions of the Hindu Marriage Act and the Child Marriage Restraint Act have proved insufficient or failed to discourage child marriages and to take such remedial steps, as are required in their wisdom."

Prior to amendment that was done by the Criminal Law Amendment Act 2013 (13 of 2013) in the Indian Penal Code, consent of the girl was 16 years and by the amendment that age has been increased to 18 years. From this very fact, it can be inferred that consenting age of 16 years was not found appropriate and it was thought that age of 16 years is not mature enough to give her consent for sexual relationship. The bar is being increased 18 years and certainly this was being increased to make the law very stringent towards the child marriage or consenting marriage against the provisions of Hindu Marriage Act as referred above.

We are being of progressive society, liberties should be accorded to every citizen to think independently and seeking his/her welfare on his/her own but by that we cannot accord the permission to do an illegal act and thereby creating imbalance in the society.

If a power has been provided to a magistrate and magistrate has exercised his power with due diligence and after consideration of the matter before it, if order is not patently illegal then same cannot be again reagitated by way of a writ petition. Moreso, when further remedy is available to the petitioner that is by way of a revision to the revisional court and further to the High Court. This court is of the view that when an order by magistrate has been passed that order is not patently illegal then same cannot be allowed to be challenged again by way of writ of habeas corpus because that will make the order of the court futile and of no consequence.

Summing-up if an order of a competent court/magistrate court is in existence and custody has been awarded to the parents and that order in itself is not beyond the jurisdiction of the magistrate court then same should not be interfered. In the present case custody of the minor girl has been given by the court as per law, hence Article 21 of the Constitution is not violated in any manner. As the girl is being given in the custody of her parents by order of a competent court, in the circumstances that custody cannot be held to be illegal and it cannot be said that the girl is in illegal detention of her parents. In the result, writ petition fails and is liable to be dismissed.

The writ petition is dismissed with the aforesaid observations.

Order Date :- 25.7.2016

Ranjeet Sahu