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2019 Supreme(All) 1235
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIPIN SINHA, AJIT SINGH, JJ.
Poonam (Corpus) - Appellant
Versus
State of U.P. And Others - Respondents
Habeas Corpus Writ Petition No. 23 of 2019
Decided On : 05-03-2019
For the Appellant : Suneel Kumar Mishra
Even a minor cannot be detained against her wishes, and the court must consider the victim's desire and age of discretion in cases of alleged abduction or inducement.
Headnote:
Habeas Corpus - Detention of Minor - 363, 366-A, 366, 376 IPC - [Habeas Corpus Writ Petition No. 33676 of 2015] - [363, 366-A, 366, 376 IPC] - The court discussed the legal provisions related to the detention of minors and the right to liberty, citing various judgments including Smt. Kalyani Chowdhary Versus State of U. P., Pushpa Devi Versus State of U. P., and Smt. Raj Kumari Versus Superintendent, Women Protection. The court emphasized that even a minor cannot be detained against her wishes and highlighted the importance of considering the victim's desire and age of discretion in cases of alleged abduction or inducement.
Fact of the Case:
The corpus, a minor girl, was produced before the court from Nari Niketan, Gopiganj, district Bhadohi. She stated that she had married of her own free will and desired to go with her husband. The court examined the corpus and her husband, and noted the absence of any counter affidavit from the respondent. The petitioner's counsel cited previous judgments and the corpus's statement to support the habeas corpus writ petition.
Finding of the Court:
The court found that the corpus, being an adult, was well aware of her rights and desires. It concluded that the corpus was free to go with her husband and restrained the respondents from interfering in her married life. The court also allowed the habeas corpus writ petition and directed the release of the corpus from custody.
Issues: The main issue revolved around the detention of the minor corpus and her desire to go with her husband. The court also addressed the absence of counter affidavit and the contumacious conduct of the Superintendent Nari Niketan, Gopiganj, district Bhadohi.
Ratio Decidendi: The court emphasized that even a minor cannot be detained against her wishes and highlighted the importance of considering the victim's desire and age of discretion in cases of alleged abduction or inducement. It also noted the absence of counter affidavit and the contumacious conduct of the Superintendent Nari Niketan, Gopiganj, district Bhadohi.
Final Decision: The habeas corpus writ petition was allowed, and the corpus was released from custody. The court restrained the respondents from interfering in the married life of the petitioner no.1 and her husband. The Superintendent Nari Niketan, Gopiganj, district Bhadohi was directed to be produced before the court, and the District Magistrate and Superintendent of Police were instructed to ensure compliance with the court's orders.
ORDER :
1. Heard Sri Suneel Kumar Mishra, learned counsel for the petitioner and Sri Patanjali Mishra, learned A.G.A. for the State.
2. We have perused the record.
3. The contention of learned counsel for the petitioner is that as per the medical certificate she is 20 years of age, copy of which has been annexed at page no.31 of the writ petition, issued from the office of Chief Medical Officer, Bhadohi. The learned A.G.A. has not disputed the veracity of the said document.
4. By the order dated 25.02.2019 notices were issued to the respondent no.5 and even the steps have been taken within time by the learned counsel for the petitioner but neither any counter affidavit has been filed nor anybody has put in appearance on behalf of the respondent no.5. Further reliance has been placed upon the earlier order passed by another Bench of this Court dated 19.11.2018, copy of which has been annexed on page no.29 of the writ petition.
5. Certified copy of the statement of the corpus Poonam has been produced before this Court which has been taken on record, wherein the corpus Poonam has categorically stated that:-
^^eSa iwue iRuh tksxsUnj iq=h jktdqekj mez 20 o"kZ fuoklh jkekiqj Fkkuk Kkuiqj tuin Hknksgh e; jktsUæ jke mifujh{kd Fkkuk Kkuiqj e; laxhrk ljkst efgyk vkj{kh Fkkuk Kkuiqj mifLFkr vk;h vkSj l'kiFk c;ku fd;k fd %&
eSa vius eu ls ekSlh ds lkFk x;h FkhA fQj eSus tksxsUnj dks Qksu djds ekfudiqj cqyk;kA fQj tksxsUnj ds lkFk cl ls eSa Hknksgh ls y[kuÅ pyh x;hA fQj y[kuÅ ls cEcbZ x;h fQj cEcbZ ls bykgkckn vkdj tksxsUnj ds lkFk eSus 'kknh dj yhA tksxsUnj dks eSus gh vius lkFk pyus dks dgkA dysDVj dks eSa tkurh gwa ijUrq mlus dqN ugha fd;k Fkk] mldk dksbZ jksy ugha FkkA esjk HkkbZ eq>s /kedh nsrk gS] fd xkao esa vkvksxh rks tku ls ekj nsaxsA eq>s vkSj dqN ugha dguk gSA**
6. In compliance of the earlier order of this Court dated 25.02.2019, the corpus Poonam has been produced before this Court from Nari Niketan, Gopiganj, district Bhadohi in custody of Sub Inspector Rajendra Ram (PNO No. 842762018) and lady constable Jyoti Ram (PNO No.182160647).
7. In view of the fact and by way of abundant caution, this Court with the intention of knowing the desire of corpus, Poonam, the Court proceed to examine the corpus namely Poonam, On being asked by this Court from the girl “ki app ka naam kya hai, she said Poonam'. On being asked that 'aap ke pita ji ka kya naam hai, she said 'Raj Kumar'. On being asked that 'kya aap ne apni marzi se shadi ki hai', she said 'ha, maine apni marzi se Jogendra se shadi ki hai bina kisi zor zabardasti ke'. On being asked that “aap kaha tak padi hai” she said “mai bilkul nahi padi hoon' On being confronted with the finding of the Chief Judicial Magistrate, Bhadohi with regard to the school document which has been disputed by the corpus and she informs the Court that “mere ghar walo ne banvaya hai”.
8. The boy Jogendra who is also present before this Court has been identified by the girl as her husband who in turn has identified the girl as his wife. Both have been identified by their counsel on the basis of documents produced before this Court.
9. Learned counsel for the petitioner has placed reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No.13037 of 2014 Mohini Gupta vs. State of UP and others, Habeas Corpus Writ Petition No.36519 of 2015 Smt. Neelam vs. State of UP and others, Habeas Corpus Writ Petition No. -19037 of 2011 Smt. Saroj versus State of U.P. And Others and the judgments passed by the Apex Court in Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 and Shafin Jahan vs Ashokan K.M. and others, reported in AIR 2018 SC 1933.
10. Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296.
11. It may be further appreciated that a victim of offence under section 363, 366-A, 366 or 376 I.P.C. could not be falling
