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2021 DIGILAW 632 (JHR)

Sanjay Kumar @ Lallan Rai v. State of Jharkhand

2021-08-16

ANUBHA RAWAT CHOUDHARY, APARESH KUMAR SINGH

body2021
ORDER : Heard learned senior counsel for the petitioner Mr. Anil Kumar Sinha assisted by learned counsel Mr. Karan Sahdeo, learned counsel for the respondent Nos. 2 to 5 & 10 Mr. Prabhat Kumar Sinha and learned counsel for the State Mr. Debarsi Mandal, A.C. to Senior S.C. I. 2. Through this Habeas Corpus petition, petitioner has sought production of his wife-respondent No.10 as well as his minor son who according to him is being illegally detained by respondent Nos. 2 to 5 in connivance with other respondents. 3. Counter affidavit was filed by the State respondent which refers to Sukhdeonagar Police Station Case No. 617/2019 registered on the basis of Complaint Case No. 4580/2019 filed by the petitioner and Krishnapuri P.S. Case No. 259/2017 registered on 26th September, 2017 under Section 363 of the Indian Penal Code against the petitioner. It has been stated at para 11 of the counter-affidavit that the complaint case was lodged by the petitioner alleging that officers of Krishnapuri police station came to the house of Niraj Kumar Pandey, Vidya Nagar Road No. 3, Ranchi and with the help of Sukhdeo Nagar Police took away respondent No. 10 and her seven months old child and all the articles of the petitioner were handed over to the landlord Niraj Kumar Pandey on his “Jimma”. In Sukhdeonagar P.S. Case No. 617/2019, final report has been submitted on 27.04.2020 under Sections 379/427/365/448/452/34 of the Indian Penal Code against Satyendra Kumar @ Vikas Kumar, Phool Kumari Devi, Dharmendra Kumar, Anjani Kumari, Upendra Kumar, Raju Prasad and five unknown persons. 4. Counter affidavit was also filed by the respondent No. 2 to 5 and 10 separately. Respondent No. 6 has filed a counter affidavit. Respondent Nos. 8 and 9 have also filed counter affidavit on 10th September, 2020. In the counter affidavit filed by the respondent No. 10, she had alleged forceful physical relationship by the petitioner by keeping her at Kathmandu for seven months as a result of which she became pregnant. She was threatened with dire consequences if she tried to resist. According to her, she was recovered by Patna Police along with local police from the rented house of Niraj Kumar Pandey at Vidyanagar, Ranchi and taken along with her child to Patna, where she gave her statement on 29th March, 2019 before the Magistrate, Annexure-A under Section 164 Cr. She was threatened with dire consequences if she tried to resist. According to her, she was recovered by Patna Police along with local police from the rented house of Niraj Kumar Pandey at Vidyanagar, Ranchi and taken along with her child to Patna, where she gave her statement on 29th March, 2019 before the Magistrate, Annexure-A under Section 164 Cr. P.C. She further states that when she had gone to her uncle’s place at village Mukimpur, her eight months old child became ill, having loose motion and vomiting and as a result he died during the course of treatment. At present, she is residing at Patna with her parents. 5. Respondent Nos. 2 to 5 have also filed a counter affidavit. Respondent No. 2 is the father of respondent No. 10. This affidavit narrates the story of the missing of respondent No. 10 from 26th September, 2017, for which Krishnapuri P.S. Case No. 259/2017 was registered. After her recovery, her statement was recorded under Section 164 of the Cr. P.C. before A.C.J.M., Patna. This affidavit further alleges that the petitioner has more than one wife. It is further stated in the affidavit that son of respondent No. 10 died during course of treatment at Mukimpur. Earlier, this petitioner had filed a habeas corpus being W.P. (Cr.) No. 329 of 2019 before this court for custody of the minor child which was dismissed as not maintainable by order dated 05.11.2019. In Krishnapuri P.S. Case No. 259/2017, charge sheet has been submitted under Sections 363/366A/34 of the Indian Penal Code. 6. A rejoinder has been filed by the petitioner on 30.07.2021 to the counter affidavit of respondent Nos. 2, 3, 4, 5 and 10. In this, petitioner has stated that he had apprehension that either his son or wife could be killed because of threats extended towards them after solemnization of their marriage against the wish of respondent No. 10. It is contended that behind his back, his wife was taken away. Petitioner has been running from pillar to post since 2019 to get justice. 7. Taking note of the rival affidavits of the parties and on the categorical statement of learned counsel for respondent No. 10, by order dated 06.04.2021, it was observed that respondent No. 10should join the proceedings on the next date from the office of her learned counsel. Petitioner has been running from pillar to post since 2019 to get justice. 7. Taking note of the rival affidavits of the parties and on the categorical statement of learned counsel for respondent No. 10, by order dated 06.04.2021, it was observed that respondent No. 10should join the proceedings on the next date from the office of her learned counsel. Thereafter this matter has been effectively taken up today, since on the last date, adjournment was sought for on the personal ground of learned counsel Mr. Prabhat Kumar Sinha. Respondent No. 10 has joined the proceedings from the office of her lawyer Mr. Prabhat Kumar Sinha and has been identified by him. She is accompanied by her father, respondent No. 2. On categorical query made by this court during interaction with her, she stated that she is not lawfully married to the petitioner. She is at present aged 19 years as per the date of birth 05.06.2002 recorded in her certificate of Intermediate. She is not at all interested in going with the petitioner. 8. Petitioner is also present from the office of learned senior counsel representing him and has been identified by him. Learned senior counsel for the petitioner submits that the respondent No. 10 is not in a position to give her voluntary statement out of her freewill, as she is under the influence of her father, respondent No. 2. The averments in their counter affidavit relating to the cause of death of the minor child is unworthy of credence, as the child has been taken away to a place called Vikramganj which is at quite a distance from Patna. The certificate of his treatment also shows the name of the petitioner as father, Annexure-2 to counter affidavit of respondent No. 10. The minor child of the petitioner is being withheld by the respondents deliberately. Petitioner is entitled tothe lawful custody of his wife-respondent No. 10 and the minor child both. 9. We have considered the submissions of learned counsel for the parties and taken note of the relevant materials on record. We have also undertaken interaction with the respondent No. 10 who has appeared from the office of her counsel and has been identified by him. 9. We have considered the submissions of learned counsel for the parties and taken note of the relevant materials on record. We have also undertaken interaction with the respondent No. 10 who has appeared from the office of her counsel and has been identified by him. In the writ petition, any document or proof of marriage of the petitioner with respondent No. 10 is conspicuous by its absence, though he has sought writ of habeas corpus for production of his wife and minor child. Respondent No. 10 has made categorical statement before this court that she is a major aged 19years and is not at all interested in going with the petitioner, as there is no lawful relationship of marriage between them. 10. The above state of facts take us to the only conclusion that a writ of Habeas Corpus cannot be issued in favour of the petitioner directing the respondent No. 10 to be handed over to him. Petitioner, if claims to be a lawfully married husband of respondent No. 10, may have appropriate remedy in law before the competent court i.e. Family Court for restitution of his conjugal rights, which can be adjudicated on the basis of pleadings and proof produced by the parties. Petitioner also has a remedy under-law for custody of the minor child, if at all the minor child is alive. In any case, in the circumstances discussed above and for the reasons recorded, no writ of Habeas Corpus can be issued is his favour. Writ petition is accordingly dismissed. Petition dismissed.