2015 Supreme(All) 19

ALLAHABAD HIGH COURT
(Full Bench)
(Lucknow Bench)
BEFORE : DEVI PRASAD SINGH, A.P. SAHI AND AJAI LAMBA, JJ.
Smt. CHAWALI (HABC 594/2012 NOW P.I.L.) - Petitioner
Versus
STATE OF U.P. AND OTHERS - Respondents
(Misc. Bench No. 9470 of 2014 connected with Special Appeal (D) No. 32 of 2014, Writ Petition No. 2666 of 2013 and Writ Petition No. 299(H/C) of 2014, decided on 16th January, 2015)

Headnote:(A) Live-in-Relationship—Legality—Customs and Usages—Courts have no parameter to find out the intent of boys and girls who are involving themselves in live-in-relationship—Live-in relationship is an exception to an orderly society—As per material on record, where some relationship has been developed with oblique motive and girls or boys are likely to suffer from ill-consequence, then wishes of family and guardians may be taken into consideration and approach of Court in such cases must be cautious—Necessary to protect boys and girls of tender age from any mal-relationship or oblique purposes to safeguard their dignity as per Article 21 of the Constitution. [As Per Devi Prasad Singh, J. (Concurring)] [Paras 15 to 47]

       (B) Live-in-Relationship—Public Interest Litigation—To secure Public Interest—Scope of—Expression “for any other purpose”—Power under Article 226 is protective and remedial in nature—While dealing with private individual dispute, whether Court could have travelled beyond it to secure public interest?—Single Judge or Division Bench or a Larger Bench has got the right to deal with public interest and secure the public interest without converting the petition into PIL—As such the effort made by the Single Judge to secure public interest by releasing the persons languishing in Protective Home found within ambit of Article 226—However having travelled beyond the jurisdictional parameter conferred by Chief Justice while providing the roster does not seem to be sustainable—While passing order with regard to a detenue claiming right on basis of live-in-relationship subject to individual constitutional right in appropriate case keeping in view facts and circumstances, Courts may pass order after taking into account the customs and usages—Part-heard and tied-up matters shall remain part-heard and tied-up even after change of roster—Unless the Chief Justice passes an order individually for withdrawal of cases from respective Bench, followed by nomination of other Bench. [As Per Devi Prasad Singh, J. (Concurring)] [Paras 55 to 94]

       (C) Habeas Corpus Petition—Women Protection Home—Whether such detention was essentially a State detention and was not a private detention—Petitioner sent to a Women Protection Home—A habeas corpus petition against a private custody was to be placed before a Single Judge and not before the Division Bench while in case of custody other than a private custody, a habeas corpus petition has to be placed before the Division Bench. [As Per A.P. Sahi, J.] [Paras 105 to 166]

       (D) Public Interest Litigation—Private dispute—Roster—Whether Single Judge releasing the sole petitioner could have still kept the matter pending before him for monitoring and further consideration of release of other detenues—Whether such detenues in protection home that were also State detentions, could have been the subject-matter of suo motu monitoring followed by an release order—Power of Court is wide enough to exercise such jurisdiction provided the Bench dealing with such a matter has been assigned the roster to do so—Single Judge could not have assumed the mantle of PIL jurisdiction to undertake a public interest exercise himself—Roster of public interest was not with the Single Judge and to the contrary was assigned to a Division Bench. [As Per A.P. Sahi, J.] [Paras 167 to 173]

       (E) Habeas Corpus Petition—Special appeal—Maintainability—Whether an special appeal would be maintainable against an order passed by Single Judge in such a petition—A special appeal held maintainable against the order of Single Judge deciding a private detention habeas corpus petition under Article 226, Constitution of India. [As Per A.P. Sahi, J.] [Paras 174 and 175]

       (F) Apprehensive writ petition—Co-ordinate Bench—Scope of—Jurisdiction of—Filing of an apprehensive writ petition, when the matter was being heard by a Co-ordinate Division Bench in appeal arising out of the same subject-matter of release of detenue held not an appropriate process. [As Per A.P. Sahi, J.] [Paras 176 to 182]

       (G) Public Interest Litigation—Speical appeal—Conversion of—Legality of—An order which has to be passed by the Chief Justice/Senior Judge on the Administrative side alone should not take the shape of a judicial order by a Division Bench under Article 226—Admittedly no administrative order passed either by Single Judge or by Chief Justice, whereby assigning either the Special Appeal or Habeas Corpus Petition—If the Bench found the matter to be of public interest then such orders had to be obtained by the Registry—Summoning of file without any administrative order held without authority—Answer to the question of entertaining the special appeal by a different Bench has also to be made in the negative and could not be converted into PIL. [As Per A.P. Sahi, J.] [Paras 183 to 206]

       (H) Reference—In a surviving and pending case—Conflict of opinion—Reference as survives for being answered as it is in a pending PIL which has been kept alive by Division Bench itself by way of conversion of Single Judge petition into a PIL—Chief Justice as such referred the said matter to answer—No conflict of opinion—Impugned order dated 19.9.2014 by Division Bench held a final judgment despite not signed by the Single Judge—Reference on a conflict of opinion may not be maintainable but since the ongoing public interest was also referred, reference still survives to be answered. [As Per A.P. Sahi, J.] [Paras 207 to 213]

       (I) Procedure—Release of detenues from Protection Home—Whether in larger interest of detenues, the orders for release as have been passed by Single Judge being even without jurisdiction is lawful?—Power of review ex-detito justitiae—Chief Justice made a reference in a surviving matter—Expression ‘Ex debito justitiae’ refers to remedy in which the Court has no discretion to refuse—A review would be desirable to rectify the gross mistake of procedure—All orders passed by Single Judge and Division Bench found legally unsustainable—As such the mistake deserved to be corrected yet it was perpetuated—Release orders of detenues directed to be continue unless ordered otherwise—Further directions issued. [As Per A.P. Sahi, J.] [Paras 213 to 229]

       (J) Allahabad High Court Rules, 1952—Chapter VII, Rules 1 to 4—Pronouncement of judgment—Practice and Procedure—Status of Final Judgment if unsigned by one Judges of Bench and conflict of opinion—Before signing of the draft judgment and its formal delivery had not become functus officio—As such the draft judgment had not acquired the character of a final judgment—Impugned order in question though not signed by the Junior Member of Division Bench held valid. [As Per Ajai Lamba, J.] [Paras 256 to 262]

       Result; Order Accordingly.