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2010 DIGILAW 556 (GUJ)

PAVAN KUMAR SHARMA v. STATE OF GUJARAT

2010-11-23

A.M.KAPADIA, BANKIM N.MEHTA

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JUDGMENT : A.M. KAPADIA, J. 1. By means of filing instant petition under Article 226 of the Constitution of India, the Petitioner has prayed to issue a writ of habeas corpus directing the Respondent No. 1 to take custody of the corpus 'Kavita' who is legally wedded wife of the Petitioner and is in illegal detention of the Respondent No. 2, her father and to reunite her with the Petitioner. It is also prayed to issue direction to Respondent No. 6 to initiate investigation into the illegal confinement of the Petitioner along with his wife by the Respondent Nos. 3 to 5. 2. As per the averments made in the petition, the marriage of the Petitioner with the corpus Kavita was solemnized on 14.7.2010 at Rajkot. It is further averred in the petition that as the Petitioner belongs to different caste, the marriage between the Petitioner and corpus Kavita has not been approved by her father. It is further averred in the petition that, though, it was against the wishes of the father of corpus Kavita, the marriage ceremony of the Petitioner with corpus 'Kavita' was performed. 2.1 It is further averred in the petition that the Police Officers from Rajasthan have tried to contact the present Petitioner and therefore he apprehended that the father of Kavita may take his wife forcibly, the Petitioner and corpus Kavita went to Mahila Police Station along with Kavita. It is also averred in the petition that as the Petitioner is staying at Rajkot, they asked Kavita to lodge a complaint in Rajkot. It is further alleged in the petition that when they were leaving the Mahila Police Station, both the Petitioner as well as his wife Kavita were intercepted by Rajasthan Police and were taken away to Rajasthan. 2.2 It is further alleged in the petition that the Petitioner along with his wife Kavita were taken to local police station in Rajasthan and kept there for more than 48 hours without any complaint or legal process and thereafter custody of Kavita was forcibly taken from him and handed over to her father. It is further averred in the petition that the Petitioner therefore suspects that the corpus 'Kavita' might be the victim of honour killing at the hands of her father and other family members. It is further averred in the petition that the Petitioner therefore suspects that the corpus 'Kavita' might be the victim of honour killing at the hands of her father and other family members. It is therefore prayed for the reliefs to which the reference is made in earlier paragraph of the judgment. 3. This Court, vide order dated 29.10.2010, issued Notice to the Respondents which was made returnable on 16.11.2010 on condition that the Petitioner shall deposit Rs. 10,000 to show his bona fide with the Registry of this Court on or before 3.11.2010. The order further stipulates that the Respondent No. 7 Police Inspector, Sarkhej Police Station, Ahmedabad, was directed to trace out the corpus Kavita who is allegedly in illegal detention of Respondent No. 2 Brijlal Dhaka and produce her before the Court on the returnable date. 4. On the returnable date, the matter was adjourned and we directed the DSP, Ahmedabad (Rural) to personally remain present before the Court and to explain as to why the Order passed by this Court has not been taken seriously by not obeying the same. 5. Today when the matter is called out, Mr. L.B. Dabhi, learned APP, for the Respondent No. 1 State of Gujarat, upon instructions received from Respondent No. 4 Inderkumar Sharma, ASI, Nohar Police Station, Nohar, District Hanumangarh, states that corpus Kavita has been traced out from the custody of Respondent No. 2 and he has brought the corpus with the assistance of Respondent No. 5-Savitri Devi, Woman Constable of Nohar Police Station, Nohar, District Hanumangarh and wants to produce the corpus before the Court. Therefore, we have permitted to produce the corpus before us. 6. We have ascertained the wish and willingness of the corpus Kavita and also enquired from her that as to whether she is in illegal custody of Respondent No. 2 her father. She has in unequivocal terms stated before us that, it is true that, her marriage with the Petitioner has been solemnized on 14.7.2010, however, the said marriage was solemnized with the Petitioner under duress and coercion and against the willingness of her family members. We have also enquired from her that how she has gone to Rajasthan from Rajkot. She has stated that she has gone to Rajasthan with her parents as her parents came from Rajasthan to take her back to Rajasthan. We have also enquired from her that how she has gone to Rajasthan from Rajkot. She has stated that she has gone to Rajasthan with her parents as her parents came from Rajasthan to take her back to Rajasthan. Therefore, when she got a chance in the absence of the Petitioner, she along with her parents went to Rajasthan at her parental home. She has been brought in the Court by the police officers of Rajasthan along with her parents from her parental home. So far as her stay is concerned, she has stated that she is very happy at her parental home and she wants to permanently stay with her parents. We have also ascertained her age. There is no dispute about her age by either sides that she is more than 18 years age. Therefore, she is sui juris and, hence, no fetter can be placed upon her choice of person with whom she wants to reside. She has also stated that as her marriage has been solemnized with the Petitioner under duress and coercion and against the willingness of her family members, she wants to take divorce from the Petitioner by filing a joint petition u/s 13B of the Hindu Marriage Act before the concerned Court having territorial jurisdiction, if the Petitioner also agrees to take divorce from her. 7. We have considered the submissions advanced by Mr. Rituraj M. Meena learned Advocate for the Petitioner and Mr. L.B. Dabi, learned APP for Respondent No. 1 State of Gujarat and Respondent No. 7 Police Inspector, Sarkhej Police Station, Sarkhej, Ahmedabad. We have also perused the averments made in the petition and the documents that form part of the petition. 8. So far as her age is concerned, she is above 18 years of age. Therefore, she is sui juris and, therefore, no fetter can be placed upon her choice of person with whom she wants to reside. She has in unequivocal terms stated that her marriage with the Petitioner was solemnized under duress and coercion and against the willingness of her family members, she wants to take divorce from the Petitioner by filing a petition u/s 13B of the Hindu Marriage Act before the concerned Court having territorial jurisdiction, if the Petitioner also agrees to the same. She has in unequivocal terms stated that her marriage with the Petitioner was solemnized under duress and coercion and against the willingness of her family members, she wants to take divorce from the Petitioner by filing a petition u/s 13B of the Hindu Marriage Act before the concerned Court having territorial jurisdiction, if the Petitioner also agrees to the same. At present she is, as per her statement, not in illegal detention of the Respondent No. 2 her father as she is staying with her parents on her own will. Therefore, we have permitted her to go with the Respondent No. 2 her father. 9. In view of this, corpus Kavita, though, legally wedded wife of the Petitioner, it cannot be said that she is in illegal detention of Respondent No. 2 her father. Therefore, we have permitted her to go with the Respondent No. 2 her father. 10. Mr. Rituraj M. Meena, learned Advocate for the Petitioner, upon instructions received from the Petitioner states that, the Petitioner is also desirous of taking divorce by filing a petition u/s 13B of the Hindu Marriage Act, if corpus Kavita has no objection. In view of this, if Petitioner and corpus Kavita can file a joint petition for taking divorce u/s 13B of the Hindu Marriage Act, the concerned Court having territorial jurisdiction shall pass an appropriate order of dissolution of marriage of the Petitioner with the corpus. 11. Seen in the above context instant habeas corpus petition lacks merit and deserves to be rejected. 12. At this stage, Mr. Rituraj M. Meena, learned Advocate for the Petitioner, upon instructions received from the Petitioner, who is personally present in the Court, does not press this petition and seeks leave to withdraw the same. 13. Mr. I.B. Dabhi. learned APP, has no objection if leave to withdraw the petition is granted. 14. Hence, leave to withdraw the petition is granted. The petition stands rejected as it is withdrawn. Notice is discharged. 15. While issuing the Notice, the Petitioner was directed to deposit Rs. 10,000 with the Registry of this Court to show his bona fide. Since the present petition fails, according to us, this amount of Rs. 10,000 is required to be paid to the corpus Kavita. 16. The Registry is therefore, directed to pay the said amount of Rs. 10,000 to corpus Kavita upon due verification.