Uttarakhand High Court
Smt. Rakhi Devi vs State Of Uttarakhand And Others on 13 July, 2022
HIGH COURT OF UTTARAKHAND AT
NAINITAL
Habeas Corpus Petition No.15 of 2022
Smt. Rakhi Devi ....Petitioner
Versus
State of Uttarakhand and Others ....Respondents
Present:-
Mr. Raman Kumar Shah, learned counsel for the petitioner.
Mr. Lalit Miglani, learned A.G.A. with Ms. Sonika Khulbe,
Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
By means of instant petition, the petitioner
seeks the following reliefs:-
"(i) Issue a writ, order or direction in the
nature of Habeas Corpus directing the
respondent nos. 2 & 3 to produce the
Corpus, i.e. respondent no.7 before this
Hon'ble Court forthwith.
(ii) Issue a writ, order or direction in the
nature of mandamus, directing jail
authority to produce the respondent no.8
before this Hon'ble Court.
(iii) Issue a writ, order or direction in the
nature of mandamus, directing the jail
authority to release the respondent no.8
on parole for establishing matrimonial
status with the respondent no.4 for a
period of three months.
(iv) Issue any suitable writ, order or direction
of any nature in favour of petitioner,
which the Hon'ble Court may deem fit and
proper in the present circumstances of the
case.
(v) Award the cost of writ petition in favour of
petitioner."
2. Heard learned counsel for the parties and
perused the record.
3. Learned counsel for the petitioner would submit
as follows:-
(i) The petitioner is the mother of respondent
no.8 (hereinafter referred to as "the
accused").
(ii) The respondent no.5 (hereinafter referred
to as the informant) lodged an FIR
against the accused and 3 others, under
Sections 376, 376 (D, A), 354, 504, 506,
120-B, 34 IPC & Section 5/6 of the
Protection of Children from Sexual
Offences, 2012, for raping her daughter,
who is respondent no.4 (hereinafter
referred to as "the victim").
(iii) The respondent no.8 has been convicted in
that matter.
(iv) Due to the act of the accused, the victim
delivered a child. Forensic examination
established that the accused is biological
father of the child (He is respondent no.7,
"the corpus" in the case). The victim is the
biological mother of the corpus.
4. It is argued by learned counsel for the petitioner
that since the corpus is illegitimate child and the petitioner,
being grandmother, has a pious duty to give her legitimacy,
she wants the custody of the corpus.
5. Learned counsel for the petitioner would submit
that the corpus was never presented either before the
Juvenile Justice Board or before any other Court; the
question of custody was never determined; the victim was, in
fact, consenting party, but because her date of birth was
18.11.2003, she was considered a child and the accused
convicted.
6. It is argued that till the accused gets
guardianship of the corpus, the petitioner is entitled to the
custody of the corpus.
7. In addition to it, learned counsel for the
petitioner would also submit that, now, the petitioner wants
that the accused to marry the victim. Therefore, learned
counsel for the petitioner would submit that the accused be
summoned from the jail and released on parole so that he
may marry the victim.
8. On the other hand, learned State Counsel would
submit that the corpus is in custody of natural guardian. It is
argued that in case the accused wants to marry the victim, he
or the victim may move the Court; the petitioner has no locus
to move such an application.
9. It is a Habeas Corpus Writ Petition, one of the
most important writs, that may be issued by a constitutional
court ensuring personal liberty of an individual. Generally, in
order to know the nature of detention, such writs are issued
so as to examine the corpus to ascertain the causes of such
detention. In the matters of custody of minor child, such
petitions are entertained. But then, there should be reasons
to make any indulgence in such matters.
10. Instant is a strange case. The mother of the
accused seeks custody of the child delivered out from rape
committed by her son on the victim. Not only this, the
petitioner also wants that her son, who is a convict of raping
the victim, be called from jail, released on parole so that he
may marry the victim. Is it not adding injury to the victim?
11. It is argued by learned counsel for the applicant
that the corpus was born on 26.06.2021. She has just
completed one year. The corpus is with his mother.
12. It is admitted at Bar that the parties are Hindu.
Section 6 of Hindu Minority and Guardianship Act, 1956
categorically provides that mother is natural guardian of a
child below 5 years. The corpus here is below 5 years of age.
13. In the case of Nithya Anand Raghavan Vs. State
(NCT of Delhi) & Another, (2017) 8 SCC 454, the Hon'ble
Supreme Court observed, under such circumstances, as
hereunder:
"47. In a habeas corpus petition as aforesaid, the High
Court must examine at the threshold whether the minor
is in lawful or unlawful custody of another person (private
respondent named in the writ petition). For considering
that issue, in a case such as the present one, it is enough
to note that the private respondent was none other than
the natural guardian of the minor being her biological
mother. Once that fact is ascertained, it can be presumed
that the custody of the minor with his/her mother is
lawful. In such a case, only in exceptionable situation, the
custody of the minor (girl child) may be ordered to be
taken away from her mother for being given to any other
person including the husband (father of the child), in
exercise of writ jurisdiction. Instead, the other parent can
be asked to resort to a substantive prescribed remedy for
getting custody of the child."
14. The corpus was conceived and delivered due to
an offence committed by the son of the petitioner, who is the
accused (respondent no.8). The corpus is just about one year
of age staying with her mother. There is no reason to make
any intervention in such matters.
15. Even calling an accused, so that he may marry
the victim of rape would be nothing but further humiliation to
the victim, as stated, it would be an act of adding injury to
her agony; to the trauma, which she has already undergone.
16. In view of the discussion as aforesaid, this Court
is of the view that this petition is devoid of merits and
deserves to be dismissed at the stage of admission itself.
17. The petition is dismissed in limine.
(Ravindra Maithani, J.)
13.07.2022
Ravi Bisht
