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2014 DIGILAW 305 (RAJ)

Kundan Singh v. State of Rajasthan

2014-01-29

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

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JUDGMENT : - Rathore, J. The petitioner Kundan Singh has sought to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by way of filing this habeas corpus petition. He has prayed that the respondents be directed to recover Smt. Anita from respondent No.4 Keshav Prasad Singh and to produce her before the Court. Further, it has been prayed that Smt. Anita be set free from the unlawful detention. 2. The case of the petitioner, as revealed from the writ petition, is that he had married Anita, daughter of respondent No.4, on 21.09.2011 in accordance to Hindu rites and rituals. Thereafter, it is stated that both of them started living together. Further, it is averred that due to misunderstanding, Smt. Anita had filed an application under Section 125 Cr.P.C. before the learned Judicial Magistrate, Court No.5, Mathura, wherein a case was registered as 34/XI/2013. It was stated in the application, inter alia, that the non-applicant is a Diploma Engineer and was earning well, but he was not maintaining the applicant. The non-applicant Kundan Singh had filed reply to the said application for maintenance. The statement of both the parties were recorded. The parties had then stated that the misunderstanding was over, after discussion with the relatives, and the parties have entered into a compromise. Since then, they have started living together. Consequently, the learned Judicial Magistrate, Court No.5, Mathura, vide order dated 12.07.2013, dismissed the application filed by Smt. Anita under Section 125 Cr.P.C. 3. According to the petitioner, both of them were living together as husband and wife. On 15.11.2013, respondent No.4 Keshav Prasad Singh, who is father of Anita, had taken her to his residence. The petitioner had then requested respondent No.4 to send back Anita, but he was told that she would come after some time. It is averred in the petition that now Smt. Anita had informed the petitioner on mobile that she has been confined in the house and not being allowed to go anywhere. She has also asked the petitioner to set her free as she was not being allowed to live in accordance to her wishes. It is stated that Anita has attained majority and had passed M.Com. It is alleged that respondent No.4 had detained Anita unlawfully and against her wishes. She has also asked the petitioner to set her free as she was not being allowed to live in accordance to her wishes. It is stated that Anita has attained majority and had passed M.Com. It is alleged that respondent No.4 had detained Anita unlawfully and against her wishes. She is not being allowed to live with the petitioner, where she is entitled under law to live with him. Under these circumstances, it has been averred that the action of the respondents is violative of Article 14, 21 and 22 of the Constitution of India. 4. Respondent No.4 Keshav Prasad Singh has filed a reply to the writ petition wherein he has denied the averments made in the writ petition. As per the reply, the petitioner had never got married with the daughter of answering respondent No.4. Further, it is stated by respondent No.4 that his daughter Anita is still unmarried. It is averred in the reply that the facts given in the writ petition are concocted, as for instance, Anita had never visited the Court at Mathura for filing a petition under Section 125 Cr.P.C. It is a question of fact, according to respondent, which has to be determined as to whether Anita, who had filed the said petition, is the same one who is the daughter of the answering respondent No.4. Further, it is stated in the reply that the contents of the writ petition and the documents annexed to it are absolutely false and fabricated. The respondent No.4 had denied, in toto, the contents of the writ petition for the reason that his daughter Anita is still unmarried and that the petitioner has nothing to do with her. The answering respondent had never seen the petitioner at his place as husband of his daughter nor any ceremonies with regard to marriage had ever taken place, in accordance to the Hindu rites. Therefore, it had been prayed by respondent No.4 that Court must take cognizance against the petitioner for giving false facts before this Court. 5. Further, it has been averred in the reply that the daughter of the answering respondent is only a degree holder and has passed B.Com. and not the degree of M.Com. The respondent No.4 has denied the age of Anita as being 24 years. He has stated that Anita is residing happily with him. 5. Further, it has been averred in the reply that the daughter of the answering respondent is only a degree holder and has passed B.Com. and not the degree of M.Com. The respondent No.4 has denied the age of Anita as being 24 years. He has stated that Anita is residing happily with him. She is a female child born from the wedlock of answering respondent No.4 and Smt. Geeta Devi. The answering respondent No.4 has stated that the petitioner is also not at all aware about the other relatives of his daughter. The only motive behind filing the present writ petition is to humiliate the answering respondent No.4 and her daughter Anita. As regards the question of violation of constitutional provisions, it has been averred in the reply that it does not arise because Anita is in proper and lawful custody of her father who can best look after her interest. The respondent has further averred in the reply that in case Anita was wife of the petitioner then he should have invoked the alternative remedy provided under the law, by way of filing a petition under Section 9 of the Hindu Marriage Act before the Family Court for restoration of conjugal rights. It has also been averred that, in the facts and circumstances, the petitioner has no locus-standi to file the present writ petition before this Court. Consequently, respondent No.4 has prayed that the habeas corpus petition be dismissed with heavy cost. 6. The petitioner has filed a rejoinder to the reply of respondent No.4. In the said rejoinder, he has reiterated the facts mentioned in the writ petition, after denying the contents of the reply filed by respondent No.4 Keshav Prasad Singh. According to the petitioner, the application before the Judicial Magistrate, Court No.5, Mathura was filed by Anita after appearing before him. It is stated that photograph of Anita was affixed on the said application. Further, the statement of Anita was recorded by the Magistrate at Mathura. The petitioner has also averred in the rejoinder that Smt. Anita was produced before the High Court by the SHO, Police Station Udyog Nagar, Bharatpur on 20.01.2014. Further, it is stated that Smt. Anita did not deny the fact about filing of application and passing of the order by Magistrate as well as the marriage, during the course of hearing. The petitioner has also averred in the rejoinder that Smt. Anita was produced before the High Court by the SHO, Police Station Udyog Nagar, Bharatpur on 20.01.2014. Further, it is stated that Smt. Anita did not deny the fact about filing of application and passing of the order by Magistrate as well as the marriage, during the course of hearing. He has admitted that respondent No.4, who is father of Anita, was not present before the Court on 20.01.2014. The learned Public Prosecutor had submitted before the Court that as per the statement of the police officer, who had brought Anita before the High Court, that her father had stated that he did not solemnise marriage of Anita with the petitioner. But Anita had stated that he has married the petitioner. Therefore, the averment made by respondent No.4, father of Anita, with regard to factum of marriage has no relevance that he did not perform the marriage ceremonies. It is reiterated by the petitioner that under these circumstances, he does not have any alternative remedy except to file the present writ petition. 7. After having contradictory facts on record from the pleadings of the parties, both the contesting parties had filed separate additional affidavits. It was deposed in the affidavit by the petitioner that Anita had informed him about her confinement by her father. Further, it was deposed that Anita had informed the petitioner to set her liberty as she was feeling upset with the confinement. Respondent No.4 Keshav Prasad Singh had, in his additional affidavit, deposed that Anita is his daughter and she is presently residing with him. As a father, he is the best person to look after the welfare of Anita. 8. We have given out thoughtful and anxious consideration to the submissions made by the learned counsels for the respective parties and have carefully perused the pleadings made in the petition, reply, rejoinder and additional affidavits. Alongwith the writ petition, the petitioner has placed on record an order dated 12.07.2013 passed by the learned Judicial Magistrate, Court No.5, Mathura, a copy of the application which is said to have been filed by Smt. Anita under Section 125 Cr.P.C. before the Court at Mathura on 24.05.2013 and some order sheets of that Court. Alongwith the writ petition, the petitioner has placed on record an order dated 12.07.2013 passed by the learned Judicial Magistrate, Court No.5, Mathura, a copy of the application which is said to have been filed by Smt. Anita under Section 125 Cr.P.C. before the Court at Mathura on 24.05.2013 and some order sheets of that Court. During the course of argument, the learned counsel for the petitioner has placed before us an agreement of marriage executed by the parties on a stamp paper of Rs.10/- on 08.05.2013. The undisputed fact which emerges from the record is that Anita is the daughter of respondent No.4 Keshav Prasad Singh. She is living with her father at his residence. It is Keshav Prasad Singh who is looking after her welfare. According to the petitioner, he got married with Anita on 21.09.2011, as per Hindu rites and rituals and since then they are living together as husband and wife. Apart from the fact that both the parties are Hindus, it is the case of the petitioner that he got married with Anita in accordance to Hindu rites and rituals. But no where in the pleadings or by a document on record, the petitioner Kundan Singh has disclosed as to where the marriage had been solemnised and in what manner, as in the present case the procedure of Satpati is applicable. In none of the documents placed on record, there is a word about the fact that where, how and in whose presence, the said marriage was solemnised. This fact gains significance, particularly when the father of the girl Anita has categorically denied about the marriage of his daughter. He has further stated that his daughter Anita is still unmarried. Besides, the petitioner has not placed on record any documents, whatsoever, by way of marriage certificate registered before a competent authority which is now compulsory in the State of Rajasthan as well as that of Uttar Pradesh. No evidence by way of affidavit of any priest who had performed the rituals of marriage, in accordance to Hindu law or any other person who was present at the time of marriage and witnessed the ceremony. 9. A look to the documents placed on record by the petitioner reflects equally strange story when it is seen in the light of the case of the petitioner. 9. A look to the documents placed on record by the petitioner reflects equally strange story when it is seen in the light of the case of the petitioner. As for instance, after his marriage with Anita on 21.09.2011, place not known, they lived together. While they were so living together, Anita filed an application under Section 125 Cr.P.C. before the Magistrate concerned praying therein for maintenance of Rs.10,000/- per month. A perusal of the application filed by Anita on 25.05.2013 goes to show that marriage took place in accordance to Hindu rituals and since then, the non-applicant husband did not like the applicant Anita and used to harass and humiliate her without any reason. Thereafter, the applicant Anita made complaint to her in-laws family as well as the family of her maternal side. It is stated that the relatives had persuaded the husband and thereafter she was made to live in a separate room in the in-laws house and the husband started to looking after her. After living peacefully for some time, the husband again started harassing Anita and used to return home late in the night and abused her without any reason. The husband then started harassing and lived separately from Anita. He had also stopped giving maintenance to her. Thereafter on 25.12.2012, the applicant Anita called her relatives, who had asked to provide food and expenses for her maintenance. But non-applicant husband had totally refused for the same. Further, it is stated that the husband had clearly stated that the applicant wife is independent from his side and she may go anywhere. Further, it is averred in the application that thereafter the applicant Anita started living separately in the house of her in-laws. The husband was not maintaining her and the applicant was unable to do so on her own. The husband is a Diploma Engineer and his earning is Rs.35,000/- per month. The applicant wife needs Rs.10,000/- per month as maintenance and therefore, it was prayed that the same be awarded to her. With the aforesaid facts averred in the application which is said to have been filed by Anita before the Magistrate at Mathura, the order passed by the said court on 12.07.2013 reveals that subsequently the parties had entered into a compromise and they had deposed before the court that no dispute remained between them and they are living happily together. With the aforesaid facts averred in the application which is said to have been filed by Anita before the Magistrate at Mathura, the order passed by the said court on 12.07.2013 reveals that subsequently the parties had entered into a compromise and they had deposed before the court that no dispute remained between them and they are living happily together. Consequently, the application filed under Section 125 Cr.P.C. was rejected by the learned Judicial Magistrate, Court No.5, Mathura on 12.07.2013. 10. From the aforesaid circumstances, the sequence of events, which is apparent, are that the petitioner Kundan Singh is said to have married Anita on 21.09.2011. Both the parties had executed an agreement of marriage on a stamp paper of Rs.10/- on 08.05.2013. Thereafter, Anita had moved an application for maintenance under Section 125 Cr.P.C. on 24.05.2013. The said application came to be decided by the court concerned on 12.07.2013. It is the case of the petitioner Kundan Singh that since his marriage with Anita on 21.09.2011, both were living together. Some dispute arose between them in December, 2012 while she was living at the residence of her in-laws and the same was got settled through the relatives. Further, it is the case of the petitioner that thereafter the husband again refused to maintain the wife Anita as a result of which she had to live separately at the place of her in-laws. While the wife was still living with the in-laws, despite of harassment and humiliation caused by the husband, she could even go to the Court of law and get an application moved under Section 125 Cr.P.C. The said application was ultimately got rejected on the ground of compromise. The dispute and litigation between the parties, in the aforesaid situation, in our opinion, is most improbable. It appears that in order to substantiate the fact with regard to marriage which is said to have been held on 21.09.2011, that an agreement of marriage dated 08.05.2013 was got executed and application under Section 125 Cr.P.C. was filed before the Court on 24.05.2013 and thereafter, the same was got rejected on 12.07.2013. It appears that in order to substantiate the fact with regard to marriage which is said to have been held on 21.09.2011, that an agreement of marriage dated 08.05.2013 was got executed and application under Section 125 Cr.P.C. was filed before the Court on 24.05.2013 and thereafter, the same was got rejected on 12.07.2013. It is the case of the petitioner Kundan Singh that after the marriage and in the year 2012, dispute arose with Anita and he had even stated before the relatives of the parties who had collected that he would not pay any maintenance and the wife is free from his side to go wherever she likes. All such developments have taken place while, admittedly, the wife Anita was living with the husband and at her in-laws place. One fails to understand that if the marriage had actually taken place on 21.09.2011 in accordance to Hindu rituals, then what was the need for the parties to execute a marriage agreement on 08.05.2013. Moreso, when according to the Hindu Marriage Act, there is no requirement of such agreement. The execution of the said document appears to be in furtherance of the object, to show that marriage between the parties had taken place on 21.09.2011 which was specifically averred in the said document. 11. In the given situation where the minimum details with regard to marriage in accordance to Hindu rituals are found wanting; the petitioner did not place any documents despite of opportunities to substantiate the fact that the marriage did take place on 21.09.2011 and there being not only a categorical denial by respondent No.4 -father of Anita about the marriage in accordance to Hindu rituals on 21.09.2011 but also the deposition that his daughter is still unmarried, the question which now arise for consideration before this Court is as to whether this habeas corpus petition is maintainable by the petitioner as against respondent No.4 who is the father and natural guardian of Anita and she is living with him ? Whether Anita can be said to be an illegal detention of respondent No.4 ? Whether in the present case, any right of the petitioner has been infringed for which he can seek redress, in the nature prayed for, through this habeas corpus petition ? Whether Anita can be said to be an illegal detention of respondent No.4 ? Whether in the present case, any right of the petitioner has been infringed for which he can seek redress, in the nature prayed for, through this habeas corpus petition ? The petitioner Kundan Singh has come before this Court with the categorical averment that he is the husband of Anita and having failed to substantiate the same by placing any documents on record, his status is nothing more than that of a stranger and in such a situation, he is not entitled to seek redress from this Court, by way of filing this habeas corpus petition and that too against the father of the alleged detenue who is the natural guardian. 12. In a matter of similar nature, a Co-ordinate Bench of this Court, in the case of Puranmal vs. State of Rajasthan & Ors. 10.01.2014, while dismissing the habeas corpus petition observed as under: “In our considered view what is being contended before us is not sustainable in the eye of law for the reason that even as per the averments made in the petition regarding marriage being solemnized on 26.09.2013, the only documentary evidence placed on record, in support thereof, is an affidavit on which reliance cannot be placed and there is no tangible document available on record which can indicate about the marriage being solemnized whereas the requirement of law is that such marriage has to be registered under the Compulsory Registration of Marriage Act and apart from it the detenue, as per the petitioner's allegation, is with her parents which cannot ordinarily be said to be an illegal detention.” 13. As regards the law in respect of issuance of writ in habeas corpus petition and the powers of the High Court in such cases, had been considered by the Hon'ble Supreme Court in the case of Mohd. Ikram Hussain vs. The State of Uttar pradesh & Ors., AIR 1964 Supreme Court 1625, wherein proceedings were initiated by one Mahesh under Section 491 of the Code of Criminal Procedure (Old) and under Article 226 of the Constitution of India, in a writ of a habeas corpus petition to release his alleged wife Kaniz Fatima @ Sheela from unlawful detention of Mohd. Ikram Hussain and for delivery of the Kaniz Fatima to him. Ikram Hussain and for delivery of the Kaniz Fatima to him. The Hon'ble Supreme Court observed as under: “...At Common Law a writ of habeas corpus was available to the husband for regaining the custody of his wife if she was wrongfully detained by anyone from him without her consent. What amounts to wrongful detention of the wife is, of course, a question for the Court to decide in each case and different circumstances may exist either entitling or disentitling a husband to this remedy. There was also no material irregularity vitiating the order for inexpediency is not the same thing as irregularity and all that has been pointed out is that the High Court acted without sufficient enquiry and deliberation. We shall say something about this because this criticism is perhaps justified. 13. Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under s. 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case.” 14. Besides, in the present case deposition on oath has been made in respect of factum of marriage of Anita by both the sides, which is contrary to each other. The petitioner in his writ petition which has been supported by his affidavit and also in the additional affidavit had deposed that he had married Anita on 21.09.2011. On the contrary, respondent No.4 Keshav Prasad Singh the father of detenue, has categorically deposed that Anita is living with him and she is still unmarried. Therefore, the present case before us is a one of affidavit against affidavit. On the contrary, respondent No.4 Keshav Prasad Singh the father of detenue, has categorically deposed that Anita is living with him and she is still unmarried. Therefore, the present case before us is a one of affidavit against affidavit. In such a situation, no clear picture in respect of marriage of Anita has emerged before this Court nor the factum of her marriage with the petitioner can be said to have been established. The fact with regard to marriage of Anita cannot be determined by this Court in a writ proceedings. 15. In the case of Mohd. Ikram Hussain (supra), the Hon'ble Supreme Court had observed, in para 18, as under: “18. These were some of the circumstances which remained undetermined when the Court ordered the production of the girl in Court. There is no doubt that the proceeding is a discretionary one. Whether the Court feels satisfied with one affidavit or with another is a matter mainly of its opinion and conviction. The learned Judges must have felt impressed by the affidavit of Mahesh, because there was nothing else before them in support of his version. They did not ask him to produce affidavits from the respectable persons of the "Mohalla and community" before whom the marriage and conversion was said to have taken place or even to produce the photograph which he asserted was taken of Kaniz Fatima and himself by a photographer. Inspite of this if they ordered the production of Kaniz Fatima they acted with jurisdiction. Even if some other person may consider the order inexpedient, the order had to be carried out unless it was impossible for the appellant to comply with it. For his refusal to comply with it he has been punished and we need express no sympathy with him but we cannot help expressing a sense of doubt about the truth of some of the statements of Mahesh in his affidavits.” 16. For his refusal to comply with it he has been punished and we need express no sympathy with him but we cannot help expressing a sense of doubt about the truth of some of the statements of Mahesh in his affidavits.” 16. In the aforesaid facts and circumstances as well as the principle of law laid down by the Hon'ble Supreme Court in respect of habeas corpus proceeding initiated by a person claiming himself to be a husband and the scope of exercise of powers by the High Court in the same, we are of the considered opinion that the basic fact that the petitioner married Anita, for want of any evidence by way of documents in respect of performance of ceremonies of marriage in accordance to Hindu rituals; certificate of registration of marriage, etc., has not been established. Therefore, in absence of such basic circumstance and the fact that question of marriage of the petitioner with Anita remains undetermined in the case, it would not be appropriate for this Court to exercise its discretion to call upon the respondents authorities to produce the detenue before us. Moreover, in a situation where the petitioner has failed to establish himself as husband of the detenue, it cannot be said that in the event of Anita living with her father, any right of the petitioner has been infringed. On this count also, there is no just reason for this Court to exercise its extraordinary jurisdiction under the Constitution by granting the relief prayed for by the petitioner. Therefore, this habeas corpus petition is devoid of merit as the petitioner has failed to establish infringement of his rights and there is no reason, whatsoever, for this Court to grant indulgence by calling the detenue from the custody of respondent No.4, who is her father, which cannot be said to be illegal. 17. Before parting with this order, we deem it proper to take note of the fact that the parties before us have adduced evidence by way of affidavit. The petitioner has deposed that he had married Anita on 21.09.2011 whereas respondent No.4 has deposed that Anita was never married with the petitioner Kundan Singh. Further, he has stated on oath that Anita is still unmarried. The petitioner has deposed that he had married Anita on 21.09.2011 whereas respondent No.4 has deposed that Anita was never married with the petitioner Kundan Singh. Further, he has stated on oath that Anita is still unmarried. The two conflicting deposition have come before this Court even when it had clearly cautioned the parties, before calling them to file their additional affidavits in specific terms during the course of the present proceedings. Therefore, we are of the view that an enquiry in the matter be held so as to ascertain which of the parties had produced false evidence before this Court by way of affidavits. Accordingly, the Chief Judicial Magistrate, Jaipur Metropolitan is directed to hold an enquiry under Section 340 Cr.P.C. as to which of the affidavit filed by the parties, before this Court, is false. The enquiry be held expeditiously and the report be sent to this Court on conclusion of the same. The Registry is directed to send the copies of writ petition, reply, rejoinder, additional affidavits and all the documents filed by the parties in this habeas corpus petition, to the Chief Judicial Magistrate, Jaipur Metropolitan, forthwith. The Registry is also directed to place the matter before this Court, as soon as the report is received from the Chief Judicial Magistrate, Jaipur Metropolitan. 18. Consequently, the habeas corpus petition is dismissed.