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1990 DIGILAW 511 (BOM)

Henry v. State of Maharashtra

1990-12-19

K.N.PATIL, M.S.VAIDYA

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JUDGMENT (ORAL) K.N. Patil, J. - Rule made returnable forthwith by the consent of the learned Advocates for the parties. 2. This is an application filed by the Petitioner under Article 226 of the Constitution of India, for issuance of a Writ, order or direction in the nature of Habeas Corpus to release his wife Gauri, aged 23 years, detained in the Reception Centre, Aurangabad. It is the contention of the Petitioner that he and Gauri were knowing each other. She embraced christianity on 24-11-1990 and thereafter they were married on 29-11-1990. After the marriage both of them were living together. On 6th December, 1990 the police came at his residence and they forcibly took Gauri with them. On 8th December, 1990 the Petitioner received a letter from Gauri, through the servant of the Reception Centre, informing him about her detention in the Centre. Thereafter the petitioner filed the present writ petition, on 13th December, 1990. 3. On 17th December, 1990 we directed the Superintendent of the Reception Centre, Aurangabad, to produce Gauri in the Court. Accordingly on the same day at 2.15 pm Gauri was produced in the Court We interviewed her in the presence of the learned Advocates for the petitioner and Respondents No.1 to 4 and the learned Advocate for the Intervener, in chamber. She told us that she is a commerce Graduate and her date of birth is 5-4-1967. It may be stated her itself that the Respondents as also the Intervenor do not dispute the date of birth of the girl Gauri. She told us that she embraced christianity on 24-11-1990 and thereafter married with the petitioner Henry Makory according to the Christian Marriage rites. She further told us that she' wanted to live with her husband and does not want to go to her parents or the reception centre. She repeatedly told us her desire to go to her husband. She told us that she was making the statement without any fear or pressure from any body. 4. We allowed Shyam S/o. Ganesh Patil, father of Gauri, to intervene in the petition. He has filed his affidavit in which he has contended that the petitioner has no locus stand to file the petition and that the alleged marriage between the petitioner and Gauri is not valid. 5. On the point of locus stand of the Petitioner to file the petition, the contention is two-fold. He has filed his affidavit in which he has contended that the petitioner has no locus stand to file the petition and that the alleged marriage between the petitioner and Gauri is not valid. 5. On the point of locus stand of the Petitioner to file the petition, the contention is two-fold. Firstly the petitioner not being the citizen of India has no right to file a writ petition under Article 226 of the Constitution of India and secondly the period of visa and the passport obtained by the petitioner has expired on 23-5-1990. There is no dispute that the petitioner is not the citizen of India. There is no hard and fast rule for making any application for writ of Habeas Corpus. Anyone can apply for a writ of Habeas Corpus under Article 226 of the Constitution before the High Court if he satisfied the Court as to his bonafides. The petitioner contends that Gauri is his legally wedded wife and she has been wrongfully detained in .the reception centre. It is not alleged by the Respondents or by the intervenor that the petition is male fide. The petitioner has produced copy of the memorandum of marriage in support of his contention that he married Gauri on 29th November, 1990. Gauri has supported the version of the petitioner on the point of their marriage. 6. Assuming for the sake of arguments that the petitioner being a foregin national has no locus stand to file the petition, Gauri's oral statement made in the Court can be treated as an application. She is a major girl She has categorically stated that she does not want to go to her parents or stay in the reception centre and that she wants to live with her husband, the petitioner. In the circum. stances, the relief cannot be refused on the first ground. So far as the second objection is concerned, the case of the petitioner is supported by the marriage certificate and the affidavit of Gauri and her statements in the Court The question of validity of the marriage need not be examined in detail in this petition in view of her oral statements made in the court. Article 21 of the Constitution of India provides that to persons shall be deprived of his personal liberty except according to the procedure established by law. 7. Article 21 of the Constitution of India provides that to persons shall be deprived of his personal liberty except according to the procedure established by law. 7. It would appear that on 6th December, 1990 the intervenor Shyam Patil lodged a report with the police alleging that the petitioner kidnapped Gauri on 27-11-1990 for immoral purpose. On his report the police have registered the offence in Crime No. 419 of 1990 under Section 366 of the Indian Penal Code. On 6th December, 1990 the police went to the house of the petitioner where the petitioner and Gauri were found. The police took away Gauri and produced her before the Judicial Magistrate, First Class, Aurangabad, on 7th December, 1990. The Magistrate remanded her to the remand home till 14th December, 1990. It does not appear that the Magistrate has ascertained the age of Gauri in the allegations made in the report. No record is placed in this petition with regard to the orders passed by the Magistrate on 14-12-1990 or thereafter about the detention of Gauri. No offence has been registered against her. 8. Mr. Kapadia, learned Advocate for the Intervenor argued that the police acted under the provisions of the Suppression of Immoral Traffic in Women Act and under Sections 15 to 17 of the said Act and the Magistrate is empowered to detain the girl in protective custody. He therefore urged that Gauri has been detained in the reception centre under the valid orders of the Magistrate and the Petitioner is not entitled to the relief in the nature of Writ of Habeas Corpus. We are not inclined to accept the argument. Perusing the copy of the report dated 7-12-1990 submitted by the Police to the Magistrate we find that there is nothing to suggest that the action was taken by the police under the provisions of the said Act. The offence is registered under Section 366 of the Indian Penal Code and not under any other provisions of the aforesaid Act There is nothing on the record to show that the girl has indulged in immoral activities. 9. We repeatedly called upon fur learned Additional Public Prosecutor as also the learned Advocate for the Intervenor to point out to us the provisions or the procedure under which the girl Gauri could be detained in the Reception Centre, against her wish or will. 9. We repeatedly called upon fur learned Additional Public Prosecutor as also the learned Advocate for the Intervenor to point out to us the provisions or the procedure under which the girl Gauri could be detained in the Reception Centre, against her wish or will. They have not been able to point out any provision or the procedure except the provisions of the Sections 15 to 17 of the said Act We find that none of the provisions of the said Act are applicable to the present case. 10. It was argued that if the girl is released it may create law and order problem. We do not think that the detention of a girl can be ordered on this ground as it would be totally in violation of Art, 21 of the Constitution of India. We are convinced that the detention of Gauri in the Reception Centre is in violation of Article 21 of the Constitution of India. Mr. Kapadia, learned Advocate cited a decision of the Supreme Court in Mohd. Ikram Hussain v. The State of Uttar Pradesh and others1. That decision is not applicable to the facts of the case. In that case the High Court, without putting the petitioner to the strict proof about his allegations regarding the age conversion of the girl and marriage with him, had ordered the production of the girl. That order was not complied with by the father which gave rise to the contempt proceedings. 11. We find that there are no reasons to detain Gauri in the Reception Centre. Her detention is not under any provisions of law or procedure. She will have to be released. 12. The petitioner is not entitled to the relief claimed by him as per prayer clause 'C'. As regards the relief of declaration that the petitioner is entitled to live and cohabit with the girl Gauri, we refuse the said relief to the petitioner as it is beyond the scope of the writ jurisdiction. 13. In view of the aforesaid, we direct that Gauri Patil be set at liberty immediately. Rule made absolute in above terms. Petition allowed. 1. AIR 1964 SC 1625 .