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Orissa High Court · body

2008 DIGILAW 1102 (ORI)

Subhrasmita Sahoo v. State of Orissa

2008-12-05

L.K.MISHRA

body2008
JUDGMENT L.K. MISHRA, J. — Order dated 27.09.2008 passed by the learned S.D.J.M., Nayagarh in G.R. Case No. 150 of 2008 by which he rejected the prayer of the petitioner to be allowed to stay with her husband is challenged in this revision. 2. The background facts are that F.I.R. was lodged by one Pramod Kumar Bhatt stating therein that his niece (daughter of his sister) Subhrasmita Sahoo (the present petition¬er) was going to the village pond along with her mother and the wife of the informant. One Chandrakanta Behera (Opp.party No.2) kidnapped her forcibly. On the basis of F.I.R. O.I.C., Odagaon Police Station registered P.S. Case No.27 of 2008 and took up investigation, during the course of which the victim girl was rescued and was produced on 02.07.08. before the learned S.D.J.M., Nayagarh. On the same day the learned S.D.J.M. directed recording the statement of the victim girl under Section 164 Cr.P.C. and also rejected the prayer for bail of the accused. On the same day a petition was also filed by the mother of the victim for her custody. The victim girl, on the enquiry of the learned S.D.J.M., strongly refused to go with her mother to her parent’s house contending that there was possibility of her being tortured both mentally and physically by her parents and other members of the family. However, her claim to be a major girl did not find favour with the learned S.D.J.M. He sent the victim girl to the “SEVA” a voluntary organization located at Nayagarh for her stay. Later Chandrakanta got bail by this Court vide order dated 28.08.08 in BLAPL No.9228 of 2008. When the matters stood thus, the victim girl filed a petition from the short stay home “SEVA” for her release and to be permitted to stay with her husband on the ground that in the meanwhile she has become a major on completion of 18 years of age and further that since she is in advance stage of pregnancy, in view of limited resources of the short stay home, she is not being given proper attention and care which is necessary for a pregnant woman. The learned S.D.J.M. rejected the prayer occasioning the present revision. 3. The learned S.D.J.M. rejected the prayer occasioning the present revision. 3. Sri N. Sahani, learned advocate for the petitioner has submitted with vehemence that the petitioner has become a major in the meanwhile and therefore, she is at liberty to go anywhere she likes and in that view of the matter, the impugned order is not sustainable. Sri D. K. Mohapatra, learned advocate for the Opp.party No.2 has supported the claim of the petitioner, however, Sri S. K. Nayak, Addl.Standing Counsel appearing on behalf of the Opp.party No. 1 (State) has defended the impugned order. 4. A close perusal of the impugned order shows that the learned Court below has rejected the prayer mainly on two grounds; firstly that even assuming that the petitioner is a major, her desire to go to the house of her supposed husband is not appropriate and may adversely affect the investigation and secondly that earlier the Court had rejected such a prayer and therefore, it can not review its own order. In addition the learned S.D.J.M., Nayagarh has placed reliance on a decision of the Gauhati High Court reported in 1984 CRI. L. J. 1310 (Nowrang¬rai Agarwalla Vs. Rambhagat Thakur). 5. In the above cited case, a final report was submitted in the case after investigation and was accepted. Thereafter the accused filed a petition for custody of the victim girl on the ground that he had married her. The learned Magistrate having passed an order when no case was pending before him, such action did not find favour with the High Court. This case is no way applicable since the facts of this case are entirely different. In the present case the matter is pending before the learned Magistrate. 6. It has been observed in the said decision at Para-3 as follows : However, if the Opp.party has really married the girl and she is major, as claimed by the opp.party, he may obtain appro¬priate relief from a competent civil Court by taking appropriate action for restoration of the custody of the girl.” The above observation is merely obiter dicta and not part of the ratio of the case, therefore has got no value as a precedent. Otherwise also I am unable to appreciate the above observation. Under Indian Law, as guaranteed by the Constitution of India each adult Indian Citizen is free. Otherwise also I am unable to appreciate the above observation. Under Indian Law, as guaranteed by the Constitution of India each adult Indian Citizen is free. Such freedom can be curtailed only by lawful means like arrest or preventive detention in which event only the question of custody arises. A husband is not the custodian of his wife who is a major and therefore, cannot be given the custody of his wife. The very concept is repugnant to the freedom of a citizen of India since it envisages subjugation of one human being to another. It must be said with due respect that the above observation, therefore, does not lay down the correct position of law. 7. The date of birth of the petitioner is recorded as 09.05.1990 by the learned Court below on the basis of provisional certificate; therefore, by now she has completed 18 years of age and is a major. The claim of the parents of the petitioner that they had given a wrong date of birth of their daughter in order to facilitate her admission in the school is not acceptable since on the one hand they have not provided to the Court any alterna¬tive date of birth and on the other since they can not take advantage of their own wrongful act. It may be noted here that the Magistrate who recorded the statement of the petitioner under Section 164 Cr.P.C. has estimated her age to be about 18 years. I, therefore, feel that there is no reason not to accept the contention of the petitioner that she is a major. 8. Once the petitioner is accepted to be a major, there cannot be any question of her custody. She must be allowed to go anywhere she likes at her sweet will. The learned Court below cannot merely take a superior moral position and say that it is not appropriate for her to go to the house of the accused, who claimed to have married her. The learned Court below has also committed an error in holding that setting her at liberty would amount to review of his earlier order since the earlier order of giving her custody to “SEVA” was passed when she was a minor and under the change circumstances when she become a major, the earlier order has lost its binding force and has become redun¬dant. 9. 9. Under the aforesaid analysis, I do not find any merit in the impugned order which is set aside. The petitioner is at liberty to go any where she likes at her own sweet will. If a certified copy of this order is produced before the learned S.D.J.M., Nayagarh in the aforesaid case; he shall take immediate steps for compliance of this order in view of urgency of the situation since the petitioner is said to be in advance stage of pregnancy. The CRLREV is allowed. CRLREV allowed.