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2019 DIGILAW 1461 (ALL)

Pooja Sawariya v. State of U. P.

2019-05-28

RAJUL BHARGAVA

body2019
JUDGMENT : 1. Learned counsel for the respondent no. 4 states that he does not propose to file any counter affidavit and the present habeas corpus writ petition may be decided in view of the statement of the corpus. 2. Heard Sri S.B. Singh, Sri Rashid Ali, counsel for the petitioner, Sri A.S. Chaturvedi, who has filed Vakalatnama on behalf of respondent no. 4, which is taken on record and learned A.G.A. 3. The present habeas corpus writ petition has been filed by the alleged husband of the corpus Pooja Sawariya with a prayer for issuing a writ, order or direction in the nature of habeas corpus directing the respondent no. 4 to produce the corpus before this Court and set her at liberty. 4. Learned counsel for the petitioner submitted that the corpus Pooja is aged about 21 years as per her Intermediate marksheet, she fell in love with one Umesh, who was a driver and she had solemnized marriage out of her own free will without any coercion or pressure with petitioner Umesh on 27.3.2019 in Maihar Devi temple at Madhya Pradesh. It is argued that respondent no. 4 is a big businessman in district Sonebhadra and he was against the marriage of his daughter with Umesh, who was merely his driver, the respondent no. 4 lodged first information report against Umesh on 21.2.2019 alleging that his daughter aged about 20 years, who is mentally unsound and is going under treatment for several years has been enticed away by the petitioner Umesh. 5. During investigation of Crime no. 108 of 2019, u/s 366 IPC, P.S. Rabertsganj, District Sonebhadra corpus was recovered and was produced before the Magistrate, her statement u/s 164 Cr.P.C. was recorded on 3.4.2019, whose certified copy has been annexed as annexure-3 to the writ petition. 5. During investigation of Crime no. 108 of 2019, u/s 366 IPC, P.S. Rabertsganj, District Sonebhadra corpus was recovered and was produced before the Magistrate, her statement u/s 164 Cr.P.C. was recorded on 3.4.2019, whose certified copy has been annexed as annexure-3 to the writ petition. In the statement the corpus has categorically stated that she was in love with Umesh and has solemnized marriage in Maihar Devi Temple and is living with him as his wife, she also stated that her parents did not like her relationship with Umesh and she has been pressurizing to dissolve the marriage, she has categorically stated that she has been apprehending danger to her life and of her husband, they had gone to Bangalore and she is very happy with the marriage, she further unequivocally stated that she does not want to go with her parents and her husband Umesh is wholly innocent. 6. It is stated that from the tenor of the statement recorded u/s 164 Cr.P.C. it is evident that the corpus wants to go with her husband, however, an application was moved by respondent no. 4 that the corpus is of mentally unsound and had filed certain documents before the Magistrate. The C.J.M. Sonebhadra vide order dated 3.4.2019 directed that corpus Pooja may be examined in respect of mental health in Government Mental Hospital Pandeypur, Varanasi by the Board of doctors. Pursuant thereto a report was submitted by the Director of aforesaid hospital that the corpus is "emotionally unstable personality disorder". It is argued that the Board nowhere opined that she is suffering from any mental ailment yet the learned Magistrate against wishes of the corpus, who is major girl aged about 21 years handed over the custody to her father vide order dated 27.4.2019 and on account of this illegal and wholly without jurisdiction order the corpus is under detention of her father against her wishes. 7. Per contra learned counsel for respondent no. 4 raised preliminary objection that since the custody of corpus has been given to respondent no. 4 by a judicial order the instant habeas corpus petition is not maintainable. 8. 7. Per contra learned counsel for respondent no. 4 raised preliminary objection that since the custody of corpus has been given to respondent no. 4 by a judicial order the instant habeas corpus petition is not maintainable. 8. In reply thereto learned counsels for the petitioner have relied upon the judgment in the case of Manubhai Ratilal Patel vs. State of Gujarat and others reported in (2013)1 SCC 314 in which it is held by Hon'ble the Apex Court that:- "It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted". 9. So far as the preliminary objection raised on behalf of respondent no. 4, the same has been repelled by the Court relying on the judgment of the Apex Court in the case of Manubhai Ratilal Patel vs. State of Gujrat and others and the present habeas corpus writ petition is stated to be maintainable. In my opinion, the judicial order whereby custody was delivered to father is wholly without jurisdiction inasmuch as it was not disputed that the corpus is major girl and the said order was passed totally against her desire of going with her husband, thus, the order dated 27.4.2019 passed by Chief Judicial Magistrate, Sonbhadra is hereby set aside. 10. Pursuant to order dated 16.5.2019 the corpus has been produced before the Court by respondent no. 4 and she has been duly identified by counsel for the parties. 11. In view of the argument made by counsel for respondent no. 10. Pursuant to order dated 16.5.2019 the corpus has been produced before the Court by respondent no. 4 and she has been duly identified by counsel for the parties. 11. In view of the argument made by counsel for respondent no. 4 that the corpus is suffering from mental disorder and she does not understand what is wrong or right for her, this Court posed several questions to the corpus and it is found that she perfectly understands all questions and has given sensible answer and on being questioned she has stated that she is aged about 22 years was suffering from convulsions for the past 7-8 years and after taking treatment she is alright, she has further stated that she fully understands her welfare and admitted her marriage with Umesh in a temple. She has stated that her husband was earlier a driver and now he got a job in Bangalore and she was also going to get a job in a firm but on account of arrest by the police she could not pursue her career. She passed graduation (B.A.) in 2017. 12. In view of the statement made by the corpus before this Court and before the Magistrate, the instant habeas corpus writ petition is allowed. The corpus Pooja is permitted to go with her husband from the Court itself. 13. In the peculiar facts and circumstances of the case as the respondent no. 4 is an influential businessman I deem it fit to direct S.S.P. Sonbhadra and concerned S.H.O. to provide adequate security and protection to the petitioners. 14. The amount of Rs. 20,000/- deposited by the husband of the corpus shall be paid to the corpus Pooja by the registry of this Court after due verification through her counsel.