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2012 DIGILAW 2269 (RAJ)

Prathvi Singh v. State of Rajasthan

2012-12-06

AJAY RASTOGI, BELA M.TRIVEDI

body2012
JUDGMENT 1. - The petitioner Prathvi Singh S/o Shri Chheluram has filed the present Habeas Corpus Petition under Article 226 of the Constitution of India seeking directions against the respondents-State authorities and private persons to search his missing daughter Pratibha Kumariand produce her corpus in the court. 2. It has been alleged in the petition interalia that on 15.9.12 his daughter Pratibha Kumari aged about 15 years was abducted by some persons, and subsequently it was found that she was confined by the respondent No.4 Sandeep Prajapat S/o Nagarmal at Trivendrum. The petitioner, therefore, had lodged a complaint before the police station Khetri District Jhunjhunu, which was registered as an FIR being No. 560/12. According to the petitioner, since the police authorities were not taking any steps to find out his daughter, though his daughter was in wrongful custody of the respondent Nos. 4 to 8, the petition was filed. The petition has been resisted by the respondent No.4 Sandeep Prajapat by filing the reply contending interalia that the daughter of petitioner was not in any illegal confinement, but at her own sweet will and consent, he had married her at Delhi on 16.9.2012 and the said marriage was also got registered at the office of Registrar on 17.9.2012. It was further contended that the said Pratibha Kumari, daughter of the petitioner was got medically examined at the Government Medical Hospital, Jhunjhunu for the determination of her age, and as per the age examination report, her age was found to be between 18-20 years. The petitioner, challenging the contentions raised by the respondent No. 4 as regards the age and marriage of his daughter with the respondent No. 4, has filed an additional affidavit alongwith the documents with regard to her school record and ration card. 3. The Court vide order dated 7.11.2012 had directed the Dy. Govt. Counsel to accept notice on behalf of the concerned respondents and directed to take steps to produce the detenue before the Court. On 23.11.2012, the girl Pratibha Kumari was produced before the Court by the respondents-police authorities. On the said day, the respondent No. 4 Sandeep Prajapat, the petitioner and his wife had also remained present on their own before the Court. On 23.11.2012, the girl Pratibha Kumari was produced before the Court by the respondents-police authorities. On the said day, the respondent No. 4 Sandeep Prajapat, the petitioner and his wife had also remained present on their own before the Court. Since the emotions were running high on both the sides, the COurt had made efforts to settle the matter amicably and also held talks with the girl Pratibha Kumari, her parents and the respondent No. 4 Sandeep Prajapat. During the course of discussion, the said Pratibha Kumari had expressed her wish to go with the respondent No. 4 only and further stated that, she being major had already married the respondent No. 4 at Delhi However, the parents of the said Pratibha Kumari, i.e., the petitioner and his wife maintained that their daughter was minor and her custody should be handed over to them only. Since the matter could not be settled amicably, the learned counsels for the parties were herd on merits of the petition. 4. It was submitted by the learned counsel Mr Anil Upman for the petitioner' that the date of birth of Pratibha Kumari as per the school record is 5.5.1997 and accordingly she is hardly 15½ years and, therefore is a minor. Placing heavy reliance on the provisions contained in Rule 12 of The Juvenile Justice (Care and Protection of children Rules, 2007 (hereinafter referred to as 'the Rules') as also on the judgment of the Apex Court in case Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh and Anr., (2009) 6 SCC 681 and of this Court in case of Pratapa Ram v. State of Rajasthan, 2012 (4) Cr.L.R. (Raj.) 1759 , Mr. Upman vehemently submitted that the medical opinion from the Medical Board as regards the age of the minor should be sought or relied upon only when the school certificate or birth certificate is not available. Since in the instant case, the petitioner has produced the marks-sheet of Secondary Examination issued by the Board of Secondary Education, Rajasthan and the copy of Scholar's Register, wherein the date of birth of Pratibha Kumari having been mentioned as 5.5.1997, the report of Medical Board regarding her age should not be taken into consideration. Since in the instant case, the petitioner has produced the marks-sheet of Secondary Examination issued by the Board of Secondary Education, Rajasthan and the copy of Scholar's Register, wherein the date of birth of Pratibha Kumari having been mentioned as 5.5.1997, the report of Medical Board regarding her age should not be taken into consideration. He further submitted that the respondent No. 4 in order to marry the daughter of the petitioner had concocted the documents including the Ration Card of the petitioner by correcting the age of Pratibha Kumari and had also sought PAN Card for the petitioner on the basis of the said ration card, however the daughter of the petitioner being below the age of 18 years of age the respondent No. 4 not have married her. Lastly he submitted that as per the provisions contained in the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the Act) the alleged marriage of Pratibha Kumari with the respondent No. 4 being illegal, could not be a lawful marriage and the daughter of petitioner being minor, her custody should be handed over to the petitioner only. 5. However, the learned counsel Ms. Suman Sharma for the respondent No. 4 placing reliance on the documents submitted alongwith the reply filed by the respondent No. 4. submitted that the statement of the girl Pratibha Kumari was recorded before the ACJM, Jhunjhunu under Section 164 of the CR.C.P. and she had expressed her wish to accompany the respondent No. 4 and that the same wish was also expressed by her before this Court. She further submitted that the respondent No. 4 had already married the said Pratibha Kumari at the Arya Samaj, Delhi and got their marriage registered and that the respondent No. 4 thus being the husband of the said Pratibha Kumari, it could not be said that she was under any illegal detention with him. The learned counsel further submitted that date of birth of the daughter of the petitioner was 14.2.1993 as mentioned in the Marriage Registration Certificate and also in the PAN Card issued by the Income-tax Department and that as per the Medical Examination Report of SMS Hospital, Jaipur, her age was found to be above 18 years and below the 20 years. Relying upon the S.B. judgment of this Court in case of Chiranji Lal v. State of Rajasthan, 2011 (1) Cr.L.R. (Raj.) 106 and in case of Sayar and Anr. v. State of Rajasthan, 2011 (1) Cr.L.R. (Raj.) 168 , she submitted that the husband is the lawful guardian of his wife after the marriage and therefore the custody of the girl should have been handed over to the respondent No. 4 only. The learned Public Prosecutor Ms. Rekha Madnani for the State has submitted that the appropriate orders be passed by the Court considering the facts and circumstance of the case. 6. Before adverting to the rival contentions raised by the learned counsels for the parties, it may be stated that the petitioner by way of present petition has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking corpus of his daughter Pratibha Kumari on the ground that the respondent No. 4 had abducted and kept under illegal detention his minor daughter Pratibha Kumari. In this petition serious disputes have been raised as regards the age and validity of marriage of Pratibha Kumari, daughter of the petitioner. with the respondent No. 4 However, it cannot be gainsaid that the jurisdiction of Habeas corpus petition under Article 226 of the Constitution of India is extraordinary in nature where the High Court could not be expected to decide the disputed questions of facts as regards the age or validity of marriage of the detenue girl. The paramount consideration before the Court would always be the welfare ans well being of the girl, whose custody is being sought by the petitioner. In deciding such petition, the Court though is expected to keep in mind the relevant Statutes and the rights flowing therefrom, cannot decide the petitioner. solely by interpreting the legal provisions. The Court is required to consider the wishes of the girl also, if the girl is found to be old and matured enough to form an intelligent preference as to with whom she would be more happy. The instant case is also one of such cases, which is required to be decided with a human touch, without strictly construing the rights of the parties flowing from statutory provisions, more particularly while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 7. The instant case is also one of such cases, which is required to be decided with a human touch, without strictly construing the rights of the parties flowing from statutory provisions, more particularly while exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 7. Though both the sides have submitted number of documents in support of their respective contentions as regards the age of Pratibha Kumari, as also the marriage of Pratibha Kumari with the respondent No.4, this court does not propose to enter into any such disputed questions of facts. The decisions relied upon by the learned counsel Mr. Upman for the petitioner pertain to the cases where the dispute had arisen with regard to the age of the concerned accused so as to treat him juvenile or not, and the provisions contained in Rule 12 of the Juvenile Justice Rules were relied upon. Such is not the case in the instant petition. Of course, such provision could be taken into consideration by way of a guideline, but it need not be strictly followed while deciding the Habeas Corpus Petition. Further, though there is some substance in the submission of Mr. Upman that the marriage with a minor girl would be an offence under Prohibition of Child Marriage Act, the said question also could not be examined by this court in the present petition. Whether the alleged marriage of Pratibha Kumari with the respondent No.4 is a valid marriage under the Hindu Marriage Act or not is not the issue to be decided by the court in the present petition. There are Special Forums and remedies available to the parties under such Acts for ventilating their grievances and getting adjudications. 8. Since there were two sets of documents, one produced by the petitioner showing the date of birth of his daughter to be 5.5.97, and the other produced by the respondent No.4 showing her age to be 14.2.93, the court had directed for the medical examination of Pratibha Kumari for determination of her age, and as per the report of the Medical Board of SMS Hospital, Jaipur, the age of Pratibha Kumari was found to be above 18 years and below 20 years. In order to ascertain the level of maturity and intelligence of the girl Pratibha Kumari, the court had also asked many questions to her in the open court as well as in the chambers in presence of her parents and the respondent No.4, and had found that she had good academic career so far and was studying in the Second Year of B.Sc. at Bikaner College. We had also found that she was matured and intelligent enough to take her own decisions. She had categorically stated before us that she would prefer to go with the respondent No.4 than her parents, and that she would be more happy, and feel secured if she is sent with the respondent No.4. She had also stated that she had willfully married the respondent No.4, and was staying with him at Trivendrum since last two months. Thus, though two contradictory sets of documents as regards the age of Pratibha Kumari are available on record, considering the peculiar facts and circumstances of the case, we are inclined to allow her to go with the respondent No.4 as per her wishes. 9. In view of the above, it is directed that Pratibha Kumari, daughter of the petitioner, shall be at liberty to go with respondent No.4 Sandeep Prajapat, and that she should be provided necessary police protection if she desires so. The petition stands disposed of accordingly.Petition disposed of. *******