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2011 DIGILAW 286 (PNJ)

Uttam Kumar v. State of Haryana

2011-01-24

JORA SINGH

body2011
JUDGMENT Mr. Jora Singh, J.: - Uttam Kumar and Parmod Kumar, preferred this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus, for the release of detenue namely Ganga Kumari wife of Uttam Kumar-petitioner No.1, from the illegal custody of Sonu Bhatia-respondent No.4 and to protect the life and liberty of the detenue, petitioners and their family members. 2. That Uttam Kumar-petitioner No.1 is the husband of detenue. Parmod Kumar-petitioner No.2 is the real brother of petitioner No.1. Uttam Kumar-petitioner No.1, has solemnized marriage with the detenue on 1.12.2010. Marriage certificate dated 6.12.2010, was issued. That on 9.12.2010, petitioner No.1, was arrested on the allegation that Ganga Kumari, aged about 14 years was kidnapped by him, that case FIR No.335 dated 1.12.2010, under Sections 363/366-A of the Indian Penal Code, was registered against him at the instance of Sonu Bhatia-respondent No.4. Petitioner No.1 and Ganga Kumari, were produced before the Court. Petitioner No.1 was sent to judicial custody but Ganga Kumari, was taken by respondent No.4 to his house. 3. That few days earlier petitioner No.2, who is the real brother of petitioner No.1 came to know that respondent No.4 is going to remarry Ganga Kumari. 4. I have heard learned counsel for the petitioner and carefully gone through file. 5. Learned counsel for the petitioners argued that the alleged detenue namely Ganga Kumari, is the legally wedded wife of petitioner No.1. Marriage was solemnized on 1.12.2010. Marriage certificate dated 6.12.2010, was issued by Ward Councillor, Nagar Parishad, Munger (Bihar). Detenue is in the illegal custody of respondent No.4. He threatened to re-marry her. Life and liberty of the petitioners and the detenue is in danger but this submission of the learned counsel for the petitioner seems to be not correct one. 6. A perusal of the file reveals that case FIR No.335 dated 1.12.2010, under Sections 363/366-A of the Indian Penal Code, was registered against petitioner No.1 at the instance of respondent No.4 Sonu Bhatia. Detenue is the daughter of respondent No.4. According to the petitioners, marriage of petitioner No.1 was solemnized with Ganga Kumari on 1.12.2010 and marriage certificate is dated 6.12.2010. According to the petitioner, detenue is major whereas allegation of the father of the detenue is that she is minor. She is about 14 years old. 7. Detenue is the daughter of respondent No.4. According to the petitioners, marriage of petitioner No.1 was solemnized with Ganga Kumari on 1.12.2010 and marriage certificate is dated 6.12.2010. According to the petitioner, detenue is major whereas allegation of the father of the detenue is that she is minor. She is about 14 years old. 7. In case FIR No.335 dated 1.12.2010, under Sections 363/366-A of the Indian Penal Code, petitioner No.1 and Ganga Kumari, were arrested. They were produced in Court. Petitioner No.1 was sent to judicial custody and this fact is clear from the copy of the order dated 10.12.2010 (Annexure P-4). Detenue was sent with her father and the next date of hearing was 13.12.2010. Dispute amongst the parties is whether Ganga Kumari is minor or major? Suppose Ganga Kumari, is major and is the legally wedded wife of petitioner No.1 then remedy with the petitioner No.1 is to file petition for restitution of conjugal rights. Custody of Ganga Kumari, whether minor or major with her father cannot be illegal. As per order (Annexure P-4) Ganga Kumari, was directed to accompany her father. In case, Ganga Kumari is remarried by respondent No.4 then again there is efficacious remedy with the petitioner No.1 to file petition for restitution of conjugal rights or complaint under Section 494 etc. IPC. In case FIR No.335 dated 1.12.2010, under Sections 363/366-A of the Indian Penal Code, Ganga Kumari, is to appear as a prosecution witness and to depose whether she is the legally wedded wife of petitioner No.1 or not? Whether she was kidnapped or not? 8. Writ of Habeas Corpus is maintainable when the Court is of the opinion that detenue is in the illegal custody of any of the respondents and there is no efficacious remedy. Dispute amongst the detenue and the petitioner is a matrimonial dispute. If the wife is not ready to accompany the husband then remedy with the husband is to file petition for restitution of conjugal rights. When there is efficacious remedy available with the husband then I am of the view that writ petition is not maintainable. When the detenue is in the legal custody of her father and the Court had allowed the detenue to accompany her father then no question of illegal detention. When there is efficacious remedy available with the husband then I am of the view that writ petition is not maintainable. When the detenue is in the legal custody of her father and the Court had allowed the detenue to accompany her father then no question of illegal detention. Writ petition was filed by the petitioners with ulterior motive, simply to create defence in case FIR No.335 dated 1.12.2010, under Sections 363/366-A of the Indian Penal Code, particularly when custody of Ganga Kumari with her father is not illegal. 9. For the reasons recorded above, instant petition without merits is dismissed. ---------0.B.S.0------------