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2020 DIGILAW 659 (GUJ)

Yunusbhai Usmanbhai Loladiya v. State Of Gujarat

2020-08-04

N.V.ANJARIA, SONIA GOKANI

body2020
ORDER : SONIA GOKANI, J. 1. This is a petition preferred under Articles 21 and 226 of the Constitution of India seeking following reliefs:- “7. The petitioner, therefore, prays that: (A) This Hon’ble Court may kindly be pleased to allow the present petition and thereby be pleased to issue a writ of Habeas Corpus or a writ in the nature of Habeas Corpus or any other appropriate writ, order or direction directing the respondents to produce the daughter of the petitioner, namely, Simmn Yunusbhai Loladiya who is a minor and who has been wrongfully/illegally confined by respondent no.4 herein against her wish and will, in order to ascertain her wish so as to enable her to reside with the petitioner in the interest of justice; (B) Pending admission, hearing and 51ml disposal of the present petition, this Hon’ble Court may kindly be pleased to direct the respondents to produce the Corpus being daughter of the petitioner, namely, Simran Yunusbhai Loladiya, who has been wrongfully! illegally confined by respondent no.4 herein in order to ascertain her wish so as to enable her to reside with the petitioner in the interest of justice; (C) Any other order/s that may be deemed it and expedient in the interest of justice may kindly be passed by this Hon’ble Court;” 2. This Court issued notice on 03.05.2018, directing the respondent authority to produce the petitioner's daughter on the returnable date. 3. The action taken report came to be submitted on 10.05.2018, as the corpus was not traced and the police authorities had been directed to make sincere efforts to trace out the minor daughter of the petitioner. On 12.06.2018, as the corpus was still not traced out, the Superintendent of Police, Morbi had been directed to supervise the investigation and to bring the corpus before this Court. 4. Thereafter, on number of adjournments, the authorities continued to tender the reports explaining the intensity of efforts made by them and yet they failed to trace the corpus. On 16.01.2020, this Court noticed that respondent No.4 in this petition was the accused in C.R.No.I-23 of 2018 on 09.04.2018, registered with Wankaner Taluka police station for the offences punishable under sections 363 and 366 of the Indian Penal Code where provisions of Protection of Children from Sexual Offences Act, 2012 were added later on. 5. On 16.01.2020, this Court noticed that respondent No.4 in this petition was the accused in C.R.No.I-23 of 2018 on 09.04.2018, registered with Wankaner Taluka police station for the offences punishable under sections 363 and 366 of the Indian Penal Code where provisions of Protection of Children from Sexual Offences Act, 2012 were added later on. 5. Criminal Miscellaneous Application No. 21445 of 2019 was moved by respondent No.4 herein for quashing on 20.11.2019 and the Court passed the order not to take any action against respondent No.4. The order of this Court would be worthwhile to be reproduced:- “Prima facie, it appears that the applicant and the victim got married on 25.7.2019 as per marriage registration certificate annexed at Annexure B and therefore, present Criminal Misc. Application deserves consideration. Notice returnable on 5.3.2020. Learned APP waives service of notice for the respondent-State. Meanwhile, no coercive steps shall be taken against the applicant. Direct service permitted” 6. It appears that on 08.06.2020 the corpus has been produced before this Court and she was sent to the Women Protection Home. On 26.06.2020, this Court passed a detailed order, which shall be required to be reproduced as under:- “1. On the last adjourned date this Court passed following order, “1. After the corpus was found, this Court on 08.06.2020 has passed the following order:-“Note is filed by the learned APP informing that the Corpus-Simranben is traced. She has attained the majority precisely on 27.6.2019 as her date of birth is 27.6.2001. Today, Corpus –Simranben is presented before us through Video Conferencing through the District and Sessions Court, Morbi. We have interacted with the Corpus and have also heard Mr. Vaibhav Sheth, learned advocate for the petitioner and Ms. Jirga Jhaveri, learned APP for the State. In peculiar facts and circumstances and upon interaction with the Corpus, this Court deems it fit to send Corpus –Simranben in Nari Sanrakshan Gruh, Rajkot for a period of one week to know the exact wish of the Corpus. Accordingly, the police authorities are directed to admit Corpus –Simranben at Nari Sanrakshan Gruh, Rajkot and produce her before us again on 16.6.2020 at 11:00 hrs. through Video Conferencing at District and Sessions Court, Morbi. S.O. To 16.6.2020.” 2. Today, as directed by this Court, the corpus has remained present through the video conferencing at the District Court at Morbi. Learned Principal District Judge Mr. through Video Conferencing at District and Sessions Court, Morbi. S.O. To 16.6.2020.” 2. Today, as directed by this Court, the corpus has remained present through the video conferencing at the District Court at Morbi. Learned Principal District Judge Mr. Oza is present along with the District Government Pleader, Morbi during her production through video conferencing. 3. We have heard learned advocate Mr. Vaibhav Sheth appearing for the applicant-father and learned advocate Mr. Rahil Jail appearing for respondent No.4, who is arraigned as accused in the First Information Report lodged by the present petitioner being CR.No.123 of 2018 on 09.04.2018 at Vankaner taluka police station for the offences punishable under sections 363 and 366 of the Indian Penal Code and under the provisions of Protection of Children from Sexual Offences Act, 2012. 4. This Court had an occasion to inquire from the corpus, who, in the presence of Learned Principal District Judge solely confided that she is not desirous to join her parents and in fact, being married to respondent No.4, has shown her willingness to join him. Of course, she has no objection to continue to be at the women protection home for some time as has been directed by this Court. 5. We have heard learned advocate Mr. Vaibhav Sheth, who has urged that the certificate, which has been filed for the purpose of conversion of the religion which is subsequent to the date of marriage and has been filed at Madhya Pradesh, of since the State of Gujarat does not permit such change in religion by affidavit due to sheer misuse by various elements. He has also further urged that the Court needs to make a note of the fact that the petitioner has preferred petition under section 482 of the Code of Criminal Procedure for quashing where he has suppressed many aspects and only after the proceedings under section 82 of Proclaiming respondent No.4 as absconding, the respondent No.4 could be found. In such circumstances, the offences, which have been alleged in the complaint do not go away and the investigation requires to be made in relation to these allegations, which have been forming part of the First Information Report. 6. According to learned advocate Mr. Jain for respondent No.4, there is no suppression and that is a separate litigation all together. In such circumstances, the offences, which have been alleged in the complaint do not go away and the investigation requires to be made in relation to these allegations, which have been forming part of the First Information Report. 6. According to learned advocate Mr. Jain for respondent No.4, there is no suppression and that is a separate litigation all together. He further has urged that couple is already married and marriage has taken place after she attained majority. He also has further requested that she may not be forced to act against her wish and will. He, on a query raised by the Court, agreed that respondent No.4, after obtaining the order of no coercive action in a quashing petition, has not appeared before the Investigating Officer. The Investigating Officer is also present through the video conferencing and submits that the investigation could not be proceeded further in wake of non-availability of respondent No.4. While continuing the earlier order of sending the corpus at women protection for next 10 days, respondent No.4 has volunteered through the learned advocate Mr. Jain to remain present before the Investigating Officer on 22.06.2020 at 11:00 a.m. 7. Bearing in mind the order of this Court of not to take any coercive action in quashing the petition, the Investigating Officer shall continue to investigate and interrogate the respondent. All allegations including the one with regard to affidavit prepared at Madhya Pradesh, shall duly be inquired. Let the matter appear on 26.06.2020 and on that day, after hearing both the sides and also knowing the details from the Investigating Officer, the Court shall pass other and further orders. It is being ensured to this Court by learned advocate Mr. Jain that no attempt shall be made on the part of respondent No.4 to meet the corpus at Women Protection Home. Let her not meet any one against her wish and will and this shall be conveyed to the warden/administrator of the Women Protection Home, Rajkot. 9. Next time, the corpus shall be produced from the District Court, Rajkot as the women protection women is situated at Rajkot, she may not need to travel all the way to Morbi for production. Let her not meet any one against her wish and will and this shall be conveyed to the warden/administrator of the Women Protection Home, Rajkot. 9. Next time, the corpus shall be produced from the District Court, Rajkot as the women protection women is situated at Rajkot, she may not need to travel all the way to Morbi for production. The Court Master shall coordinate through the Registrar (Judicial) and 10.We place our appreciation for the arrangement made by learned Principal District Judge, Morbi and also for remaining present through out and actively assisting the cause of justice.” 2. Today before us we have the Investigating Officer Mr. Vishwaraj Jadeja who confirmed that the respondent No.4 has co-operated by attending to his office twice. He needs to carry out investigation in relation to the certificate which has been issued at Madhya Pradesh which is subsequent to the date of registration of the marriage. Considering the present condition of pandemic due to COVID-19, he requires time of minimum four weeks. He ensured to expedite the entire process. He also further urged that the co-operation of all concerned shall be necessary. 3. Through the Video Conferencing at Rajkot District Court, the corpus has been presented before us. She is presently at Women Protection Home, Rajkot. The administrator in-charge of the such Women Protection Home is also present. In presence of learned Additional District Judge, Mr. Darshan Dave, we met of 6corpus who has reiterated her request to join respondent No.4. Considering the crucial stage of investigation and noticing the fact that she had been away for a long time while she was a minor and under the influence of the respondent No.4 who even at that stage was a matured man of 32 years of age, we deem it appropriate for an impartial and mutual investigation and for her own interest to continue her custody at Women Protection Home for the next five weeks. 3.1 She has been made to understand that she being a major her wish eventually would prevail, however, for no, it is decidable and in the interest of all concerned that she continues to be at Women Protection Home under the care and protection of the State. 3.1 She has been made to understand that she being a major her wish eventually would prevail, however, for no, it is decidable and in the interest of all concerned that she continues to be at Women Protection Home under the care and protection of the State. In the beginning of the session, she had been inquired by the learned Additional Sessions Judge about her welfare and her well-being at Women Protection Home and she has confirmed that she has no difficulty at all. Petitioner is the father who continues to make request for the custody of the daughter who is unwilling to join the parents. According to him, the petition for quashing under Section 482 of the Code of Criminal procedure was preferred by the respondent No.4 after she turned major without disclosing the factum of pendency of this petition of Writ of Habeas corpus. He needs to move the learned Single Judge in Criminal Miscellaneous Application No.21445 of 2019. He very fervently urged the Court not to continue the protection. Mr. Jain has of strong reservations and urged that the respondent No.4 was not aware of any such petition being pending. We choose not to enter into this debate of both the sides as inappropriate proceedings, they can raise other contentions and may espouse their respective causes. However, considering the time period which has been given to the Investigating Officer, if any such application is moved by for and on behalf of the petitioner, let the Registry place it before the appropriate Bench on expeditious basis. 6. The custody of the corpus shall continue with the Women Protection Home, Rajkot where good care will be taken of hers. She will not be compelled to meet any one against her will and wish and as on the last occasion ensured to this Court by the learned advocate Mr. Jain for and on behalf of the private respondents, no attempt shall be made on the part of the respondent No.4 to contact the corpus till the next adjourned date. All the concerned shall co-operate the Investigating Officer. 7. Stand over to 04.08.2020.” 8. Today, we have before us, learned advocate Mr. Vaibhav Sheth appearing for the applicant and Mr. Rahil Jail for respondent No.4 and Mr.Manan Mehta, for the respondent-State. The Investigating Officer Mr. J.M.Aal, P.I. Morbi also has joined through the video conferencing. All the concerned shall co-operate the Investigating Officer. 7. Stand over to 04.08.2020.” 8. Today, we have before us, learned advocate Mr. Vaibhav Sheth appearing for the applicant and Mr. Rahil Jail for respondent No.4 and Mr.Manan Mehta, for the respondent-State. The Investigating Officer Mr. J.M.Aal, P.I. Morbi also has joined through the video conferencing. The Registry made a request to the learned Principal District Judge, Rajkot to arrange for production of the corpus through the video conferencing from the District & Sessions Court, Rajkot and he had personally remained present and the corpus is also produced before us. 9. The corpus has reiterated her requests of joining respondent No.4 and insisted that she has no inclination to meet her parents. She also had her apprehensions from them and instead, is desirous to join her husband and she also is no longer desirous of continuing her stay at the Women Protection Home, although she has no complaint against the administration. She was looked after very well, so far as her stay at such shelter home is concerned. 10. Our main concern was, as reflected in our last order, that the conversion of corpus from the religion of Islam to Hindu religion was on 27.07.20219 as per the certificate of Notary Public. Conversion of religion also took place at Madhya Pradesh, since the State of Gujarat does not permit such conversion on a mere affidavit, unless there is an express permission granted by the District Magistrate for the same, whereas the Act of Madhya Pradesh requires the intimation of the District Magistrate of such conversion. Today, we have a detailed report submitted by Mr.J.M.Aal, P.I. He has stated that the corpus and respondent No.4 were residing at District: Banswada, State Rajasthan at village, Umrai. He inquired at the concerned place on 12.07.2020 and the owner of the place and other family members had confirmed that there were two separate rooms, they had hired at the rent of Rs.18,00/- and stayed separately and it is only after they got married, they lived as husband and wife. The Panchnama of the place where both of them resided had been done. He also inquired from the stamp vendor Mr.Vinod Babubhai Joshi and confirmed that there was a voluntariness in buying the same. The Panchnama of the place where both of them resided had been done. He also inquired from the stamp vendor Mr.Vinod Babubhai Joshi and confirmed that there was a voluntariness in buying the same. He contacted the Notary Ms.Pushadevi alias Devidas Upadhyaya, who also had inquired from her repeatedly of whether there being any compulsion or coercion for her to get herself converted from her religion, and she insisted on her marrying Ashok and, accordingly, on 25.07.2019 the affidavits have been Notarized and it was a typographical error of reflecting the date as 27.07.2019, instead of 25.07.2019. The P.I. also met Shri Satyanarayan, aged 78, years at Mahalgadh. He confirmed that they were married at Arya Samaj on 25.07.2019 and he issued the certificate as the head of the institute. He issued certificate himself and Shri Ramchandra Raghuvanshi, the President of this institute also has signed the same and gave the copies, who is 81 years of age. 11. According to the Police Inspector Mr. Aal, this conversion, as per the investigation, marriage has been done as per the will and wish of the corpus and there did not appear to be any anomaly in the date, as had been indicated otherwise in the order. He further confirmed that he agreed that he did not inquire from the District Magistrate whether any intimation has been sent to him by the Notary, when the affidavit had been made in her presence and whether respondent No.4 also intimated the District Magistrate, as required under the Madhya Pradesh law. He confirmed that the Gujarat Freedom of Religion Act, 2003 insisted on the prior permission to be taken from the District Magistrate with respect to the conversion that there is no such requirement at Madhya Pradesh. However, the punishment prescribed, on the failing to comply with subsection (1) of section 5 of the Madhya Pradesh, which requires intimation to the District Magistrate in relation to the conversion is the punishment of imprisonment of 01 year and fine. He ensures to get the further details from the District Magistrate of Madhya Pradesh. 12. However, the punishment prescribed, on the failing to comply with subsection (1) of section 5 of the Madhya Pradesh, which requires intimation to the District Magistrate in relation to the conversion is the punishment of imprisonment of 01 year and fine. He ensures to get the further details from the District Magistrate of Madhya Pradesh. 12. Learned advocate Mr.Rahil Jain appearing for respondent No.4 has urged that the non-disclosure of the pendency of habeas corpus from the year 2018 in an application under section 482 by the present application being Criminal Miscellaneous Application No. 21445 of 2019 would be decided by the concerned Bench on the strength of the material that may be available before it. This scope in section 482 of the Code of Criminal Procedure is completely different from the scope of the present petition, which is for the production and well being of the corpus. He has urged that both respondent No.4 and the corpus resided in the neighbourhood. They were in love with each other and keenly intended to marry each other and since they knew that it was not going to be permitted, they chose to move from Wankaner and resided at Rajasthan and thereafter, at Madhya Pradesh. He also has urged that after they got married, they were quite apprehensive of the threat to their lives and, therefore, they have chosen to continue to reside outside the State. He has urged that the age itself also should not be the bar to the marriage, therefore, both of them preferred marriage, after the corpus turned 18 years of age. He has urged the Court to allow the corpus to join the respondent and further urged that they should not be dependent on the petition, which is pending and would be decided on its own strength. 13. Having heard both the sides and also having conversed with the corpus so also noticing the report of P.I., Morbi police station, we notice that this petition had been pending from the year 2018, wherein the father had approached this Court seeking presence of his daughter. He also lodged a complaint initiated under sections 363 and 366 of the Indian Penal Code, where later on, the provisions of POCSO had been added. He also lodged a complaint initiated under sections 363 and 366 of the Indian Penal Code, where later on, the provisions of POCSO had been added. Investigation, which has been carried out and the report, which has been tendered before us is in relation to C.R.No.I-23 of 2018, registered with Wankaner Taluka police station on 09.04.2018. The marriage has taken place of corpus with respondent No.4 after she became major on 25.07.2019. The reference of 27.07.2019 in the document furnished by the Notary, according to the P.I. is a typographical error, which is also accepted by the Notary in her version. It was a major anomaly, which we had noticed because any conversion by the person, who is desirous of marrying by way of Hindu rites could not take place subsequent to the marriage, as that needs to precede the date of marriage. It is being confirmed from the report of the Investigating Officer that the same had taken place on 25.07.2019 and reference of 27.07.2019 in the copy of Notary is a mistake. This would indicate from the said report so also the statement recorded and the documents verified by Arya Samaj etc. where the marriage has taken place and the corpus with respondent No.4 also continued to live as husband and wife thereafter and did not report to District Magistrate, as they were apprehensive of their lives. It is an inter-religious marriage and moreover, the corpus was taken away in the year 2018 itself. 14. We needed to converse with the corpus after she returned to Gujarat and she was produced and made to understand the realities. Therefore, in our last order dated 08.06.2020 she had been directed to be kept at Women Protection Home on 26.06.2020, although she had already expressed her desire to join respondent No.4 this court had deemed it appropriate to continue her housing at Women Protection Home. It was also necessary for us to ascertain that there is no compulsion on the part of respondent No.4 so far as the issue of conversion is concerned. Therefore, getting the report from the Police Inspector was a must for any other or further order to be passed by this Court. It was also necessary for us to ascertain that there is no compulsion on the part of respondent No.4 so far as the issue of conversion is concerned. Therefore, getting the report from the Police Inspector was a must for any other or further order to be passed by this Court. Noticing the report and also the oral conversation and the submissions made by the P.I himself and the learned Additional Public Prosecutor in this case, noticing the scope of habeas corpus petition, we are of the opinion that it would not be feasible for the Court to continue to house the girl, the corpus herein, who is now 20 years of age without her wish and will, more particularly, when she has married to respondent No.4. The action of his, prior to her turning major or his action of not intimating the District Magistrate, which we do not prefer to debate at present, as there is no investigation on the part of the P.I. in that regard, in particular. But assuming that there is no intimation as required under the Madhya Pradesh law, he would be facing the criminal prosecution for any lapse that he may have made. However, the corpus since has been found and would not be willing to join the parents and insist on her joining her husband i.e. respondent No.4, we need to permit her to join with respondent No.4 and his family. His non-disclosure of pendency of this petition at the time of obtaining order where the Court directed not to take any coercive steps whether had any material effect on the outcome of the petition, is no longer a debate since It is being corrected by the learned advocate Mr. Sheth by fairly stating that in one of the paragraphs of the Quashing Petition very briefly, there is a reference of pendency of this petition. However, on various other issues, he has grievance, which are now being agitated before the learned Single Judge in petition under section 482 of the Code of Criminal Procedure. This Court therefore has chosen not to enter into that debate and instead leave it for the parties of agitate all those issues before the concerned Bench. Any of the findings and/or observations made in this petition shall not prejudicially affect the parties. 15. This Court therefore has chosen not to enter into that debate and instead leave it for the parties of agitate all those issues before the concerned Bench. Any of the findings and/or observations made in this petition shall not prejudicially affect the parties. 15. We shall also additionally direct that girl and the boy shall not be hindered in continuing their matrimonial life by overreaching the process of law. 16. This court acceded to request learned advocate Mr. Sheth to permit meeting of Corpus with her father since the petitioner's father was keen to meet the daughter. They both have been permitted to meet through the video conferencing. However, it appears that both are very clear in their intent and desire. Father is not at all willing that the daughter should continue her relationship with Ashok respondent No.4, whereas the corpus is extremely clearly that she would join Ashok alone and has no desire to go back to the parents. During the talk, we could also realize the intensity of resistance on the part of the petitioner and his annoyance for the corpus not having been traced for a long time, which also is quite apparent. 17. Considering the ground situation, we deem it appropriate to direct the police authority to provide protection to the Corpus and her in laws for the next four months, if the couple chooses to return to their native after 04 months. The petitioner shall ensure that no untoward incident shall take place either by him directly or through any one. Any request on the part of the couple to seek any protection should be responded thereafter also positively. This of course shall not in any manner help the respondent husband in any of the pending litigations it is necessary for the court to ensure the protection of life however that aspect shall not rescue nor come in the way of the authorities in pursuing legal remedies for any breach or lapse on the part of respondent. Learned advocate Mr. Sheth, as an officer of the Court, has ensured that he shall appropriately guide the petitioner and shall also make him understand not to take the law in his hands. 18. This petition stands disposed of. The corpus is permitted to join respondent No.4 from the District Court. We request the learned Principal District Judge to make necessary arrangements for the same. 18. This petition stands disposed of. The corpus is permitted to join respondent No.4 from the District Court. We request the learned Principal District Judge to make necessary arrangements for the same. We place our deep appreciation for the arrangements of VC that have been made and effective counseling provided by the learned Principal District Judge, Mr. Desai.