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2017 DIGILAW 102 (PNJ)

Lallu v. State of Punjab

2017-01-13

DEEPAK SIBAL

body2017
JUDGMENT : DEEPAK SIBAL, J. 1. The present petition has been filed under Article 226 of the Constitution of India read with Section 482 Cr.P.C. seeking issuance of appropriate directions to the respondents to release the detenue-Jamna. 2. It is the petitioner's case that he and the detenue-Jamna married each other on 26.04.2016. Since such marriage was against the wishes of the parents of the detenue, apprehending danger to their life and liberty, they approached this Court for seeking protection through CRM-M No.14579 of 2016-'Jamna and another versus State of Punjab and others'. On 29.04.2016, this Court disposed of the aforesaid petition and the operative part of the order reads as under:- "Without going into the validity of the marriage and without saying anything regarding the age of the petitioners, the present petition is considered only for the purpose of protection of life and liberty of the petitioners. This petition is disposed of accordingly with the directions to the petitioners to contact respondents No.2 and 3, who, after their satisfaction that the petitioners are actually facing threat, shall take necessary steps to protect the lives and liberty of the petitioners from private respondents No.4 to 6, as per law. However, it is made clear that this order, in no way, will affect any other proceedings pending or to be filed against the petitioners etc., which are to be dealt with independently as per law." 3. In the meanwhile, the parents of the detenue had lodged a FIR against the petitioner under Sections 366-A and 363 IPC. The petitioner sought quashing of the FIR by moving this Court through CRM-M No.24276 of 2016, in which notice of motion has been issued and interim order has been granted in favour of the petitioner, directing the prosecution not to file the challan. The matter is now stated to be listed on 22.02.2017. 4. Learned counsel for the petitioner submits that on 22.12.2016, the parents of the detenue forcibly took her from his custody to an undisclosed place in the State of Jammu and Kashmir from where the detenue escaped and contacted the Jammu and Kashmir Police, who after questioning her handed her over to the Punjab Police. 4. Learned counsel for the petitioner submits that on 22.12.2016, the parents of the detenue forcibly took her from his custody to an undisclosed place in the State of Jammu and Kashmir from where the detenue escaped and contacted the Jammu and Kashmir Police, who after questioning her handed her over to the Punjab Police. Learned counsel for the petitioner submits that the Punjab Police have illegally kept the detenue in a protection home by the name Gandhi Vanita Ashram, Kapurthala Chowk, Jalandhar (for short the 'Ashram') against her wishes and the petitioner being her husband is legally entitled to her custody, especially when the detenue is pregnant with his child. 5. The present petition had come up for preliminary hearing before this Court on 04.01.2017, on which date, while issuing notice of motion, the respondents were directed to produce the detenue in Court. As directed, the respondents have produced her before me. 6. Learned State counsel submits that the Jammu and Kashmir Police handed over the detenue to the Punjab Police and thereafter, on 29.12.2016, she was produced before the Judicial Magistrate Ist Class, Ludhiana (for short the 'Magistrate'). Medical evidence which ascertained the detenue's age between 17 to 19 years was also produced before the Magistrate by the State. The Magistrate presuming the detenue's age to be less than 18 years issued directions for her to be kept in the Ashram. 7. I have perused the order dated 29.12.2016 passed by the Magistrate which directs the detenue to be kept in the Ashram for her safe custody. Therefore, her detention in the Ashram being under the orders of the Magistrate stricto senso would not be illegal. However, the question that arises for consideration is that whether she can continued to be kept in the Ashram especially when she has expressed before me her unwillingness to stay there; she is pregnant; of a tender age and in the light of the fact that her husband is willing to keep her under his care. 8. After giving my thoughtful consideration to the peculiar facts of the present case, I am of the firm opinion that the detenue, against her wishes, being of tender age and pregnant with the petitioner's child cannot be kept in the Ashram especially when the petitioner-her husband is willing to take her under his love and care. 8. After giving my thoughtful consideration to the peculiar facts of the present case, I am of the firm opinion that the detenue, against her wishes, being of tender age and pregnant with the petitioner's child cannot be kept in the Ashram especially when the petitioner-her husband is willing to take her under his love and care. However, it has also to be kept in mind that the detenue is required to be rehabilitated with a sense of permanency. Before me, she expressed fear of being eliminated at the hands of her parents/paternal uncle. There is also the afore-referred FIR of kidnapping lodged by the detenue's parents against the petitioner which is pending. Thus, keeping in mind the entirety of the facts, I am of the opinion that the ends of justice would be met, if on 17.01.2017, the detenue is produced before the Chief Judicial Magistrate, Ludhiana, who would summon her parents, her in-laws and the petitioner with the sole object of rehabilitating the detenue permanently. In this process the Magistrate on all dates after 17.01.2017 would associate with him the Member Secretary of the Legal Services Auhority, Punjab. In the final decision to be taken with regard to the custody of the detenue her willingness would be given primacy. The entire exercise would be completed within one month from 17.01.2017. 9. The above directions of mine find support from a decision of this Court in "Court on its own motion versus State of Punjab, 2015 (2) R.C.R. (Criminal) 792", wherein this Court while considering a similar issue observed as under:- "8. The above observations emanate from an inter-religious marriage between a Muslim boy and a Hindu girl but where both of them were major. But even if they are not major it would at best invite consequences of violating a law mandating the age for matrimony or for that purpose even the legitimacy of the marriage itself but under no circumstances a person who is a minor and capable of understanding the nuances and complexities of life be forced to live in a protection home against his/her wishes.......................... 9. 9. Since the court has chosen to treat these instances as Habeas Corpus pleas, suo motu, and finding that individual liberties are being abused and curtailed I henceforth direct that all the girls whose names have been mentioned in the appended proforma and who had performed marriage without parental consent and confined in Gandhi Vanita Ashram, Jalandhar be set free forthwith by adopting the following procedure :- 10. The Court of Judicial Magistrate Ist Class or the Chief Judicial Magistrate assisted by the Member Secretary of the Legal Services Authority, Punjab would summon the parents or the parents-in-law of such girls or even the gentlemen to whom they are married and ascertain their wishes as also of the girls before they are entrusted to them. In some of the cases it is understandable that the parents may not be willing to take the girls back instantaneously, dictated by a sense of chastisement and a perceived dishonour or merely waiting with a hope that their daughters would outgrow passion for the boys with whom they have married. 11. In so far as the parents-in-law of such girls are concerned, the chances of their accepting the girls to their matrimonial homes would certainly be greater considering that their sons are facing prosecution and incarceration and the girls if accepted in the family would be the strongest insurance against the prosecution of their sons. 12. Wishes of each of the girls be ascertained and upon interaction with the parents or parents-in-law they be encouraged a rehabilitation in their homes. The court of the Chief Judicial Magistrate with the assistance of the Member Secretary Legal Services Authority, Punjab shall undertake this exercise instantly as keeping the girls in confinement against their wishes is not only violative of their rights but is also detrimental to their mental and physical health. It is also to be noticed that few of the girls are in family way and some have children in their laps which in turn suggest that the misery in which they are placed threatens to engulf their off-springs as well. Such can never be the mandate or dictates of a welfare society where a deviation from a societal norm is taken to be an affront of a magnitude inviting disastrous criminal consequences as also personal destruction. 13. Such can never be the mandate or dictates of a welfare society where a deviation from a societal norm is taken to be an affront of a magnitude inviting disastrous criminal consequences as also personal destruction. 13. Those who cannot be entrusted to parents or parents-in-law may be retained in the protection home unless some other benign relative is ready to rehabilitate the unfortunate girl. But this would be on ascertaining the wishes of the girl and a verification by the Member Secretary, Legal Services Authority." 10. As observed above, the detenue before me has expressed threat to her and the petitioner's life at the hands of her parents/paternal uncle. The Commissioner of Police, Ludhiana, is directed to forthwith go into such threat perception expressed by her and take immediate remedial action in accordance with law to ensure the safety and security of the detenue as also of the petitioner. 11. The Chief Medical Officer, Ludhiana, is also directed to despatch forthwith a team of experts who would examine the detenue and extend to her all required medical help that she may need at State expenses. 12. The writ petition stands disposed of as above. 13. A copy of this order be given to the learned State counsel under the signatures of the Bench Secretary for immediate compliance.