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2021 Supreme(Pat) 860
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, RAJEEV RANJAN PRASAD, JJ.
Bibi Darakhshan Firoz Wife of Md. Firoz Alam - Petitioner
Versus
The State of Bihar through the Director General of Police, Govt. of Bihar, Patna Bihar - Respondents
Criminal Writ Jurisdiction Case No.241 of 2020
Decided On : 30-11-2021
Advocate Appeared:
For the Petitioner: Mr. Syed Masleh Uddin Ashraf, Adv.
For the Respondent: Mr. Prabhu Narayan Sharma, Mr. Shailendra Kumar Singh, Adv.
Headnote:
Constitution of India – Article 226 – Habeas Corpus Petition – Constitution of India guarantees every individual the right to live and liberty through Article 21 – Right to marry a person of one's choice is an integral part of Article 21 – Supreme Court upheld an individual's right to marry a person of her own choice as well as right to choose a religion – Expression of choice is a fundamental right under Articles 19 and 21 of Constitution and form an essential component of exercise of liberty and autonomy – In instant case, mother of respondent no.7 alleged that her daughter was illegally confined by respondent no.6 – Matter has already been investigated by police, who have found allegations made in FIR to be a 'mistake of fact' – Respondent no.7 has personally appeared before Court and has categorically stated that she has not been abducted by anyone – She is living with respondent no.6 of her own free will and there is no coercion – She stated that her parents are against this alliance, but she got married to respondent no.6 way back on 13.12.2019 and is now happily living with him – Since respondent no.7, admittedly a major girl, is living in her matrimonial home out of her own volition and choice and there is no threat or coercion, no case for handing over her custody to petitioner is made out – Petitioner must respect decision of her daughter and allow her to live peaceful life in her matrimonial home – Application dismissed. (Paras 12, 16 to 18)
JUDGMENT :
ASHWANI KUMAR SINGH, J.
Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the respondent nos.6 and 7.
2. The instant application has been filed by the mother of respondent no.7 for issuance of a writ in the nature of habeas corpus directing respondent nos.2 to 6 to produce respondent no.7 in the Court. The contention of the petitioner is that respondent no.7 is a student of B.A. Part-2 in B.N. College, Patna. She was staying in Shahin Girls Hostel, Ramna Road, Patna. She became traceless from her hostel from 07.12.2019. Despite all sincere efforts, she could not be traced out. Hence, on 11.12.2019, Pirbahore P. S. Case No. 631 of 2019 was instituted under Sections 363 and 364 of the Indian Penal Code on the basis of a written report submitted to the S.H.O. of Pirbahore Police Station by Md.Tanvir Alam, the maternal uncle of respondent no.7, who was her local guardian.
3. In the written report, Md. Tanvir Alam stated that his niece Resham Firoz (Respondent No.7), aged about 19 years, daughter of Md. Firoz Alam, resident of Village-Chikni, P.S. Sour Bazar, District-Saharsa, a student of B.A. Part-2 of B.N.College, Patna was pursuing her studies while staying in Shahin Girls Hostel, Ramna Road, Patna. On 07.12.2019, she went out of her hostel at 07:15 AM and since then she is missing. On inquiry, he came to know that Nitish Kumar (Respondent no.6), aged about 19 years, who is a co-villager of respondent no.7 had threatened the brother of respondent no.7 that he would forcibly lift respondent no.7 from her place of stay. On further inquiry, he came to know two numbers of mobile phone of respondent no.6, but they were switched off. The mobile phone of his niece was also switched off. He suspected that his niece has been abducted and is being wrongfully confined for some illegal purpose.
4. The further contention of the petitioner is that on 19.01.2020 she received a call on her mobile number from the mobile number of respondent no.7. She informed her that she has been forcibly taken and married to respondent no.6 with the help of respondent nos.4 and 5, who are father and mother of respondent no.6 respectively and has been kept captive by them. She also stated that they are frequently moving with her from one place to another. Again, on 21.01.2020, respondent no.7 called from her mobile to the mobile numbers of her grandfather and mother and on 22.01.2020 to mobile number of her father and expressed her desire to get her recovered from the captivity of respondent nos.4 to 6.
5. Mr. Syed Masleh Uddin Ashraf, learned counsel appearing for the petitioner submitted that the petitioner along with her family members met respondent no.3 and the investigating officer and requested them to recover her daughter, who has been confined illegally and forcibly by respondent nos. 4 to 6, but they are not making any sincere effort to get her daughter recovered from the illegal confinement of the said respondents. He further contended that respondent no.7 has repeatedly expressed her desire to come to home, but on account of her illegal confinement, she is unable to move freely. He contended that it is a gross case in which this Court should issue a writ in the nature of habeas corpus directing the respondents, especially, respondent nos. 2 to 6 to produce respondent no.7 and hand over her custody to the petitioner.
6. Mr. Prabhu Narayan Sharma, learned counsel appearing for the State and Mr. Shailendra Kumar Singh, learned counsel appearing for respondent nos. 4 to 7 have categorically stated that the writ petition lacks merit. The petitioner has filed the present case only because it is an inter-religion marriage. They contended that respondent no.7 has chosen a life partner herself and she is being harassed in various ways by her parents.
7. In the present matter, two counter affidavits have been filed, one on behalf of respondent no.2 and the other on behalf of respondent nos. 6 and 7. In his cou
