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2002 DIGILAW 250 (JK)

World Human Rights Protection v. Union Of India

2002-08-02

S.K.GUPTA, T.S.DOABIA

body2002
DOABIA, J. :- In the heavens above The angels, whispering to one another, can find, amid their burnings terms of love, None so devotional as that "mother." said Poe Edgar Allan. The above words indicate the importance of being a mother. So far as importance of a child is concerned, this has been described by the great poet Milton as under :- "Child shows the man as morning shows the day." 2. If above is the importance of relationship between the mother and a child, then would it be apt to keep the mother and daughter in custody when the daughter is not at fault and if the daughter is to be set free, can she be deprived of her mothers company ? This is the sum and substance of this public interest litigation. 3. The facts be noticed. A married lady (S), resident of Pak Occupied Kashmir had some differences with her husbands family. She left her matrimonial home and is said to have jumped into river Jhelum. She, however, swept to the Indian side of the river and was picked up by the Indian Forces. She was then handed over to the police having entered Indian territory without valid papers. She was found to have committed an offence under Egress and Internal Movement control Order. A First Information Report was lodged on 6th Oct., 1995. She was convicted on 15th Nov., 1995. She was to undergo one year imprisonment and had to pay a fine of Rs. 500. In the event of failure to pay the fine, she was to undergo a further sentence of three months. She came to be lodged in District Jail, Poonch, on 16th Nov., 1995 and thereafter in the Central Jail on 28th Jan., 1996. It was in the month of April, 1996, it was discovered that she was pregnant. When this fact came to be known, it was found that the Jail Warden of District Jail, Poonch, had committed a rape on her on 14th Jan., 1996. As a result of this illicit relations, a child who got conceived was born on 6th Oct., 1997. This female (M) child is now six years of age. According to the petitioner-counsel, the Pakistan authorities are ready and willing to have the lady (S) but not the child (M). Both of them are in custody. As a result of this illicit relations, a child who got conceived was born on 6th Oct., 1997. This female (M) child is now six years of age. According to the petitioner-counsel, the Pakistan authorities are ready and willing to have the lady (S) but not the child (M). Both of them are in custody. Appropriate writ is being sought for the release of the mother and her daughter in this public interest litigation. 4. Respondent-State has filed counter-affidavit. The circumstances in which the lady (S) came to be arrested and later on convicted is not the subject-matter of dispute. It is also not in dispute that she came over to this side of the country on or around 3rd Oct., 1995 and it was after coming to this side, she got pregnant. Therefore, one fact which stands established and regarding which there can be no two opinions is that the child (M) was conceived through a father who belongs to this side of the State. 5. The further case as projected by the respondent-State is that a case stands registered under S. 376 of the Penal Code. This has been registered against one Mohd Din, Jail Warden, District Jail, Poonch. The trial is on. There was some delay as some revision-petitions came to be filed in this Court. These proceedings arose because a need was felt to have a DNA test of the accused-Warden so that the relationship with the minor child could be determined. 6. It is the further case of the respondent-State that an all out effort was made to deport lady (S) to Pakistan on 26th June, 2001. This was not successful. Efforts were made again. The communications regarding this by the State authorities and by the Border Security Force authorities have been placed on the record. The fact remains that the mother and the child continue to stay in this part of the country. 7. The further fact is that so far as the mother is concerned, she is now under detention in terms of an order passed by the Special Secretary to Government, Home Department on 3rd August, 2001. This order has been passed under the Public Safety Act. This is because it is felt that the lady (S) is in custody in India in connection with the militant activities. This order has been passed under the Public Safety Act. This is because it is felt that the lady (S) is in custody in India in connection with the militant activities. Order Annexure A passed in this regard is being reproduced below :- "Whereas Shahnaz Sayeda w/o Mohammad Younis r/o Village Haryan Dabagh Tehsil Sumani District Mirpora, POK is a resident of POK, occupied area of the State and at present in custody in India in connection with his militant activities; Whereas the Government is satisfied that with a view to regulating his continued presence in the State, it is necessary so to do; Now therefore, in exercise of powers conferred by S. 8(l)(b)(i) of the Jammu and Kashmir Public Safety Act, 1978, the Government hereby direct that said Shahnaz alias Sayeda w/o Mohammad Younis r/o Village Haryan Dabagh Tehsil Sumani District Mirpora POK be detained for a period of 24 months and lodged in District Jail, Jammu. .... Sd/- Spl. Secretary to Government Home Department." 8. A perusal of this order would indicate that this order has been passed mechanically. The authority passing the order has not even taken care to describe the detenu property. It has been mentioned that detention order has been passed because of". connection with his militant activities." It has been further stated as under : "..... with a view to regulating his continued presence in the State, it is necessary so to do." As indicated, the respondents have not taken care to distinguish between his and her. If such is the state of affairs, then the order on the face of it appears to have been passed mechanically and without application of mind. This is one aspect of the matter. Even otherwise, when the lady (S) was originally detained, it was never the ground for her detention. 9. The other aspect of the matter poses a larger question. The minor child is in custody along with mother. Can the minor be so kept? If the child cannot be kept in custody and if she has to be under the guardianship, of mother, the further question would arise as to whether mother can be kept in custody in the manner it has been done. 10. The importance of child welfare cannot be over emphasised. Concern has been shown at the international level. If the child cannot be kept in custody and if she has to be under the guardianship, of mother, the further question would arise as to whether mother can be kept in custody in the manner it has been done. 10. The importance of child welfare cannot be over emphasised. Concern has been shown at the international level. This concern resulted in the declaration of rights of the child adopted by the General Assembly of the United Nations on 20th Nov., 1959. The declaration in its Preamble points out that "the child by reason of his physical and mental immaturity, needs special safeguards *and care, including appropriate legal protection, before as well as after birth," and that "mankind owes to the child the best it has to give." Some of the principles which were laid down and have some relevancy for the purposes of this petition are being reproduced belovv1 : "Principle 2 : The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose the best interests of the child shall be the paramount consideration." "Principle 3 : The child shall be entitled from his birth to a name and a nationality. "Principle 6 : The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and in any case in an atmosphere of affection and of moral and material security; a child of tender years shall not save in exceptional circumstances, be separated from his mother. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable. "Principle 9 : The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form. "Principle 10 : The child shall be protected from practices which may foster racial, religious and any other form of discrimination. "Principle 9 : The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form. "Principle 10 : The child shall be protected from practices which may foster racial, religious and any other form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood and in full consciousness that his energy and talents should be devoted to the service of his fellow men." 11. Thus, there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection and under the care and attention of parents so that they may be able to attain full mental, intellectual and spiritual stability and a clear self-confidence, self-respect and plan*out a life with full realization of a role which they have to play. Article 15, Cl. 3 of the Constitution of India enables the State to make special provisions for children; Art. 21 provides that no child below the age of 14 shall be employed to work in a factory or engaged in any other hazardous employment. Article 39, Cls. (e) and (f) provide that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and that children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The present is a case where the mother was exploited. It is high time that steps are taken with a view to protect the minor from exploitation. 12. So far as the minor in this case is concerned, all systems whether judicial or executive have to protect her in a manner that she grows and attains maturity and majority uninfluenced by the circumstances in which she has been placed. At present she may not be aware of the difficulties which she may face in future. 12. So far as the minor in this case is concerned, all systems whether judicial or executive have to protect her in a manner that she grows and attains maturity and majority uninfluenced by the circumstances in which she has been placed. At present she may not be aware of the difficulties which she may face in future. As she grows and moves in the company of those children who have both their parents by their side, she would definitely be asked questions to which the mother may have some answers but those answers may not satisfy the creative mind of a child. She is likely to suffer psychologically also. Therefore, it is necessary that she is taken care of in a manner which would be in the interest of minor. 13. It is not in dispute that the minor is in custody along with her mother and for this detention she is not at fault. If this be the situation, then so far as the minor is concerned, a writ of habeas corpus can always be issued. This is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful detention whether in State or in private custody. By it, the Court commands the production of the subject and enquiries into the cause of his detention. If there is no legal justification for the detention the party is ordered to be released. The writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The principal aim of the writ is to provide for a swift judicial review of alleged unlawful restraint on liberty of a subject. In Cox v. Hakes (1890) 18 App Cases 506, Lord Halsbury made the following memorable observations :- "For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject, if upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody." 14. The importance of personal liberty. The importance of personal liberty. the vigilance with which it must be protected and the care which must be taken to see that a person is not deprived of his liberty except by due process of law, are not in any way less because the person Whose liberty is in question is not meritorious and has not the sympathy of the Court. In this connection, the following observations of Scrutton, LJ in R. v. Secretary of State for Home Affairs Ex parte OBrien (1923) 2 KB 361 be quoted : The law of this country has been very jealous of any infringement of personal liberty. This care is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all." 15. In Darnels case (1627) 3 State Tr. 1 Chief Justice Hyde asserted the power of the Court in the following memorable observations :- "Whether the commitment be by the King or others, this Court is a place where the King doth sit in person and we have power to examine it, and if it appears that; any man hath injury or wrong by his imprisonment we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison." 16. The nature of writ is described in Halsbury Laws of England Vol. II, paragraph 1455 of Fourth Edition as under : "The writ of Habeas Corpus ad Subjiciendum unlike other writs of habeas corpus is prerogative writ, that is to say it is an extraordinary remedy, which is issued upon cause shown in cases where the orginary legal remedies are in applicable or inadequate." "The writ is writ of right and is granted exdebito justitiate. It is not, however, a writ of course. It is not, however, a writ of course. Both at common law and by statute the writ of habeas corpus may be granted only upon ground for its issue being shown : The writ may not in general be refused merely because there exists an alternative remedy by which validity of the detention can be questioned." In paragraph 1476, it is further observed: "Any person is entitled to institute proceedings to obtain a writ of Habeas Corpus for the purpose of liberating another from an illegal imprisonment and any person who is legally entitled to the custody of another may apply for the writ in order to regain that custody. In any case where access is denied to a person alleged to be unjustifiably detained, so that there are so instructions from the prisoner, the application may be made by any relation or friend on an affidavit setting forth the reasons for its being made." 17. In Corpus Juris Secundum, the subject is dealt with and the nature of writ is described at page 459 of Vol. 39, 1976 Ed. as under :- "The writ of Habeas Corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the Court or Judge awarding the writ shall consider in that behalf. The writ is the process of testing the authority of one who deprives another of his liberty and it is designed to give a person whose liberty is restrained an immediate hearing to inquire into and determine the legality of the detention." 18. Therefore, a writ of habeas corpus can be issued for securing the release of the minor but the further question would arise as to whether the minor can stay without her mother. 19.. There are judicial precedents where even under the Mohammadan law, the mother has been held entitled to custody of person of a minor child. "Mullas" Principles of Mohommedan law 18th Edition, 1977, deals with this aspect of page 367. It has been concluded that the mother is entitled to the custody (hizanat) of her female child until she has attained puberty. The right continues till she remains minor or unmarried. "Mullas" Principles of Mohommedan law 18th Edition, 1977, deals with this aspect of page 367. It has been concluded that the mother is entitled to the custody (hizanat) of her female child until she has attained puberty. The right continues till she remains minor or unmarried. The difference between custody and guardianship was explained by the Allahabad High Court in Khatija Begum v. Gulam Dastgir, 1975 All WR 199. In Immambandi v. Mutsadi (1918) 45 Ind App 73 : (AIR 1918 PC 11), their Lordships of the Privy Council observed that under the Mohamedan law the mother is entitled only to custody of the person of minor child. 20. Some of the decisions on the subject and as quoted by Mulla from Pakistan are as under : 21. In Khyushi Muhammad v. Muham-madunnissa, PLD 1961 (WP) Lah 786, it was observed that "merely inability to maintain the children is not ground for depriving the mother of the custody of her children, if she is not otherwise disqualified. If the mother is of bad character she may be deprived of the custody of the child." 22. Fathers petition was dismissed as the boy was only 5 years old. Welfare the minor was considered in appeal when the boy had attained 7 years of age. See Abdul Jabbarv. FazalJan, PLD 1963 (WP) Karachi 90. In Harbai v. Usman, PLD 1963 (WP), Karachi 888, it was observed that the mothers poverty is no hinderance to the custody of minor daughter. If mother remarries after her husbands death, she may not lose right if no suitable person can be found Ali Baksh v. Bhagaul, PLD (WP) Karachi 465. Where father was held to have abandoned the child, the maternal grandmother was held to be the best person to have the custody of the minor in the case of Akhta Ahmad v. Hazoor Begum, PLD 1965 (WP) Karachi 65. 23. In Hassan Bhat v. G. M. Bhat, AIR 1961 J and K 5, the mother was held entitled to the custody of her female child until she attained puberty. In the above case, the mothers custody was held to be conducive to childs welfare. Following observations were made in the above case (paras 4 and 5 of AIR) :- "The welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. In the above case, the mothers custody was held to be conducive to childs welfare. Following observations were made in the above case (paras 4 and 5 of AIR) :- "The welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. We are fortified in our view by Division Bench decisions of several High Courts. To begin with here is a Division Court, Bhola Nath v. Sharda*Devi, AIR 1954 Pat 489, wherein their Lordships relying on a number of authorities held that the paramount consideration in appointing a guardian is the question of the welfare of the minor. To the same effect are the decisions reported in Samual Stephen Richard v. Stella Richard (S) AIR 1955 Mad 451, Mohammad Sadiq v. Wafati, AIR 1948 Oudh 51 as also Ram Prasad v. Distt. Judge, Gorakhpur 57 Ind Cases 651 : AIR 1920 All 89." "We have also ourselves held in an unreported case, Civil 1st Misc. Appeal No. 55 of 1959, Bilu Ram v. Nanak Chand on 15-2-1960 (J and1 K) that the paramount consideration in appointing guardian of the minor should be the welfare of the minor and where a Court finds that the interests of the minor cannot be looked after properly by a person being a preferential guardian under the personal law, he cannot be appointed a guardian under the Guardians and Wards Act." 24. Reference can also be made to the decision of Madhya Pradesh High Court in the case of AIR 1986 Madh Pra 221 where the custody of minor female child was given to the mother with the following observations (paras 8, 9 and 10) :- "Evidentially, the short question for our consideration in this case is whether the petitioner should be deemed to have lost her right to the custody of the child merely because she is not residing with her husband, the father of the child. In his annotation, on para 354 Mulla has referred to judicial exposition of the rules obtaining in Pakistan, as regards mothers disqualification." "The learned commentator has quoted Rizvi, J., who in Bavi v. Shah Nawaz Khan, PLD (WP) Lah 509 observed : "The principle of Mohammadan law as regards hizanat is fundamentally based on this fact that it is for the welfare of the minors to live with their guardians as directed under the law." "following the judicial dicta in Shah Banos case, AIR 1985 SC 945, buttressed in Jordan Diengdeh, AIR 1985 SC 935. we are bound to construe Ideologically and humanistionally sub-para (2) of para 354 above referred." "In our view the mother of the child shall not suffer disqualification to have custody of the child for the mere fact that she is not residing with her husband, the childs father." "When personal laws are divinely sanctioned, a presumption will naturally arise that such laws have a humanistic content because when great seers, saints and prophets found any faith, they act as benefactors of the mankind as a whole, if man is Gods child and if child is the father of the man, no personal law claiming divine sanction afford to deny paramount consideration to the welfare of the child." 25. Thus, the mother can be given the custody of the child and in the present case, she is the only parent available, and therefore, is entitled to the custody of the child. 26. The concept of citizenship is also required to be taken note of. The citizenship is dealt with in the Central Act namely the Citizenship Act of 1955. As per S. 3(b) of the said Act, every person born in India on or after commencement of this Act and either of whose parents is a citizen of India at the time his birth is to be treated as citizen of India by birth. As the minor (M) was conceived in India, therefore, prima facie it has to be presumed that one of her parents is a citizen of India. On account of the above section, the minor therefore, would also be deemed to be a citizen of India. As the minor (M) was conceived in India, therefore, prima facie it has to be presumed that one of her parents is a citizen of India. On account of the above section, the minor therefore, would also be deemed to be a citizen of India. In a case reported in AIR 1957 Madh Bha 1, Naziranbai v. State, the applicant-wife was born in India, domiciled in India lateron migrated to Pakistan after 1st March, 1947 was not held to the benefit of provisions of Art. 5 of the Constitution of India and was not treated as a citizen of India. Though she was born in India, she lost her Indian citizenship as she had migrated to Pakistan but her minor children were held entitled to Indian citizenship because the father had continued to stay In India. It was concluded that the citizenship of the minor would depend upon the citizenship of the father. In the present case the father of the minor (M) prima facie is an Indian citizen as the minor was conceived in India while the lady (S) was in Jail. Therefore, the minor is to be treated for all intents and purposes to be a citizen of India. Even otherwise, if the Declaration of Rights of Child adopted by the General Assembly of the United Nation on 20th Nov., 1959, are taken into consideration, then as per Principle 3 noticed above, the child is entitled from his birth to a name and nationality. Therefore, even if this salutary principle is applied, even then, so far as the minor is concerned, she would be entitled to claim citizenship of India. To repeat, it be seen that the minor (M) was conceived and has taken birth in the State of Jammu and Kashmir. Under normal circumstances, the minor is to have the same domicile as his father. This is because every person acquires a domicile which becomes a domicile of his birth or domicile of region and this domicile continues till he or she acquires a new domicile which is called a domicile of choice. Here is a case where so far no one is sure about the fatherhood of the minor child. This is yet to be established. Therefore, so far as the minor is concerned, she would be treated as a domicile of the State of Jammu and Kashmir. Here is a case where so far no one is sure about the fatherhood of the minor child. This is yet to be established. Therefore, so far as the minor is concerned, she would be treated as a domicile of the State of Jammu and Kashmir. It is for her to express a choice in this regard. The choice can be expressed by her mother also but the question as to whether she can be deported to Pakistan would depend upon the decision which the authorities in Pakistan may take in this regard. If they refuse to recognise her, then she has to be treated as a person having domicile in the State of Jammu and Kashmir. 27. The above situation leads to the consideration of another fact which is of importance. The minor child is under custody for no fault of her. She cannot be kept in custody, but at the same time, she cannot be deprived of the company of her mother. The mother is also in detention because the respondent authorities have not been able to deport her to Pakistan. There is no dispute that coming over to this part of the country without permission was an offence on the part of lady(s). For that she has been punished. The respondent authorities want to deport her to Pakistan but, as indicated above, have not been able to do so. This is because the authorities on the other side oi the country i.e. Pakistan are, as per respondents not co-operating with the authorities on this side of the country. Under these circumstances, can it be said that the lady(s) of responsible for the situation in which she is placed at present. The respondents have now passed an order of detention under the Public Safety Act. This has been done with a view to give legal colour to her detention. In the order of detention, it is stated that she has come to this country in connection with militant activities. She came over to this country in Oct. 95. At that point of time, a First Information Report was lodged. That was for a limited purpose. There was no assertion anywhere that the lady(s) is engaged in militant activities. Therefore, the order now passed in this regard is held to be based on a plea which is after-thought and the detension of law(s) is found to be not justifiable. At that point of time, a First Information Report was lodged. That was for a limited purpose. There was no assertion anywhere that the lady(s) is engaged in militant activities. Therefore, the order now passed in this regard is held to be based on a plea which is after-thought and the detension of law(s) is found to be not justifiable. 28. Independently of the above we are of the opinion that as the minor cannot be kept in custody and her detention along with her mother is illegal, she is entitled to be set at liberty. We order accordingly. We also direct that as the minor cannot stay without her mother and the mother being the legal guardian, therefore, the consequential order of releasing the mother is also being passed. As a result, both of them (mother and child) would be set at liberty. 29. One other aspect of the matter is as to how the minor child and the mother is to be compensated. It is not in dispute that when mother(s) was in custody, her person was violated allegedly by a person who was supposed to take care of her. He was an employee of the State. No doubt, that fact is yet to be established and a judicial verdict is yet to some, nevertheless, the fact remains that there is no escape from ultimate conclusion that on account of acts of omission and commission, the person of mother(s) was violated and this led to her pregnancy, which resulted in the birth of minor child in the month of Oct. 96. For this act, both the mother and the child are required to be compensated. In this regard, it would be apt to take notice of a decision given by the Allahabad High Court in the case reported as 1996 (1) All WC 469 Uttarakhand Sangharsh Samiti v. State of Uttar Pradesh. There was an agitation being conducted for creation of State of Uttranchal. The police authorities were found to be perpetuated crimes falling within the mischief of various provisions of Penal Code. For the acts falling under Section 376 of the Penal Code, the State was burdened and was directed to pay compensation to the extent of Rs. 5 lakhs. The doctrine that the State can also be held liable for acts on the part of its servants was made applicable. For the acts falling under Section 376 of the Penal Code, the State was burdened and was directed to pay compensation to the extent of Rs. 5 lakhs. The doctrine that the State can also be held liable for acts on the part of its servants was made applicable. What was said by the Allahabad High Court in this regard is being reproduced below :- Thus as the record stands the High Court holds the State Administration of Uttar Pradesh at the relevant time, responsible for the constitutional torts. Human rights were violated by the let and demur, deliberate or otherwise and subject silence was shown by the administration on whatever was suffered by the civil rights activities from the hills in furthering a cause which State politics as a formality had committed to them. Death by shooting concealing the bodies of the dead, rape of women, molestation of them, and detention of women and children indeed against the provisions of the Constitution of India and the substantive and procedural law of the land debased the rule of law. No official agency of the State of Uttar Pradesh accepts the reality of the tragedies. The effort throughout the proceedings was to filibuster the proceedings on any pretext which could achieve the result. The means adopted to shake the Court from inquiring within and the out would if it succeeds render the judicature system ineffective. Let the international community not say that Indian Courts are object spectators when constitutional torts are perpetuated in this nation. What are the remedies for those who have suffered ? Will this Court be in a position to heal the hurt of those women whose person was violated and of the parents who lost their progeny ? The Court may not have a satisfactory answer to repair the wounds of the body and the mind but in its humble innovation shall attempt to repair by reparation the material and the spiritual wrongs of the class who suffered as well as individuals. Would it be inequitable that damages repair the violation of constitutional torts of the administrative hostility shown by the administration of the time? Dissenters are not for flogging and the majority cannot ship. These are symptoms of anarchy. It is not unknown that amongst the dissenters are the followers of the law and those of the majority the breakers." 30. Would it be inequitable that damages repair the violation of constitutional torts of the administrative hostility shown by the administration of the time? Dissenters are not for flogging and the majority cannot ship. These are symptoms of anarchy. It is not unknown that amongst the dissenters are the followers of the law and those of the majority the breakers." 30. The position in this case is similar. As indicated above, the minor child was conceived in India while the mother was in custody. Therefore, it is to be presumed that it is the servants of the State who are responsible for this act. We accordingly direct that the State would pay a sum of Rs. 3 lakhs as compensation to be deposited in the name of minor. The interest out of this amount would be spent on the welfare of the minor. The State would be at liberty to recover this amount from the Jail Warden if he is ultimately found to be the person responsible for the illegal act. Otherwise, as indicated above, the State is equally liable for the illegal acts of its servants. Therefore, the State is burdened with the damages indicated above. We also direct that till and so long as the minor child wants to stay in India and till she is accepted by the Pakistan authorities, she would stay in India and for her stay, a Government accommodation, which is available to a Government servant of the lowest category in the State would be made available to her. This accommodation can be made available in an area means for police of Jail staff so that the mother(s) can be called upon to report to the police authorities so that she remains in constant touch with them. This will take care of the interest of the State as also the welfare of the minor both of which are of paramount importance. 31. We accordingly hold : (i) That so far the minor is concerned. she is being detained in jail without any authority of law and for no fault of her; she is entitled to release. A writ of Habeas Corpus is issued in this regard; (ii) That so far as mother is concerned, she has already been punished for illegal act committed by her. she is being detained in jail without any authority of law and for no fault of her; she is entitled to release. A writ of Habeas Corpus is issued in this regard; (ii) That so far as mother is concerned, she has already been punished for illegal act committed by her. Her further stay in India is not of her free volition and therefore, to keep her in custody would not be apt. It is precisely for this reason, an order of detention has been passed on 3rd Aug. 2001, which order has been passed without application of mind and is accordingly quashed. The mother(s) is held entitled to be released; (iii) That independently of what has been said at SI. No. (ii) above, as the child is supposed to remain in custody of mother and as she requires her continuous presence, therefore, by applying the doctrine of necessity, we direct that independently of what we have said at SI. No. (ii), the mother is to be released along with minor child. Both of them will stay together; (iv) That suitable Government accommodation shall be provided to the mother and I the minor child; (v) That compensation as indicated above would be paid to the minor child. 32. We understand that the lady(S) as well as the minor (M) are at present in Central Jail, Jammu. The lady(S) is engaged in the trade of stitching. She is being taken care of by the Jail authorities. Therefore, before releasing the lady(S) and minor (M) in pursuance of the judgment given by this Court, the wish of the mother(S) shall be determined. If she wants to continue with her activities of that of stitching inside the jail and if she feels that she is better placed inside the jail, then she would be at liberty to exercise this option. This option would be exercised in presence of Chief Judicial Magistrate and in presence of the counsel who has espoused the cause of lady(S) and minor (M) in this Public Interest Litigation In case, she expresses her willingness to have the benefit of this judgment and wants to be out of the jail, then she would be provided with the facilities indicated in the foregoing paragraphs. 33. Let this order be complied with within a period of two weeks from today. Disposed of accordingly.