Point of Law: Detention - Agreement purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for production of petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.

JUDGMENT :

1. The case called out for virtual hearing as fresh petition.

2. Learned counsel for the petitioner, Sri Janardan Singh, Advocate and learned A.G.A for the State are connected through video conferencing.

3. The instant writ petition is filed seeking issuance of direction in the nature of habeas corpus. Allegedly, the petition is moved on behalf of 'Sadhna Kumari', aged about 18 years, through her next friend on 15.4.2021. The next friend, allegedly the husband namely Shekhar @ Shekhar Pandey aged about 19 years, is resident of District-Gonda. The opposite parties no.4 and 5 (parents of petitioner Sadhna Kumari) are resident of village Mau, with whom her unlawful detention is complained of.

4. Briefly stating the grounds for issuance of direction in the nature of habeas Corpus through the next friend Shekhar @ Shekhar Pandey, as pleaded in the petition are the alleged detenue petitioner 'Sadhna Kumari' and the next friend 'Shekhar @ Shekhar Pandey' were legally wedded and living as husband and wife since after an agreement purported to be of marriage covenanted by them on a notary affidavit dated 31.7.2020 which shall hereinafter be referred as "agreement' only. The photocopy of the said agreement is made Annexure No.2 to the petition.

5. Para 13 of the writ petition pleads, “the detenue petitioner and Shekhar @ Shekhar Pandey solemnized their marriage and the detenue petitioner being major, she is competent to take decision about her future life”. It is further pleaded that they were cohabiting in their matrimonial house situated at Village Bakhtawarpurwa, Tehsil Paraspur, District Gonda uninterruptedly, when the opposite party no.5 (father of detenue Sadhna Kumari) some time in the second week of January, 2021 requested for her “vidai” assuring her return after one week. On his assurance, the detenue petitioner was allowed to depart the matrimonial home with her father. Since then, she is detained illegally and improperly against her wish and will by the opposite parties no. 4 and 5 (parents) in their home situated at Village Bhaatkol, Post Dharauhara, Mohammadabad Gohana, District Mau. Consequently, having no option the instant writ petition under Article 226 of the Constitution of India is filed by the next friend on behalf of the detenue, to issue a writ, order or direction in the nature of habeas corpus commanding and directing the opposite parties (State of U.P, Superintendent of Police, Mau, S.H.O., P.S-Kotwali Mohammadabad Gohana, District Mau and parents of the detenue petitioner) to produce the detenue petitioner before the court so that statement as to her willingness may be recorded by the court and to set her free at her liberty.

6. Heard, the learned counsel Shri Janardan Singh Advocate for the petitioner, who emphatically argued to issue notice instantly to the opposite parties, directing them for production of the detenue before the court. Learned A.G.A. is also present on behalf of the State to protest the prayer made by the petitioner. Learned A.G.A. argued, a writ of habeas corpus when presented before the Court, if the court is prima facie satisfied that the prayer deserves to be granted, it may issue rule nisi and call upon the person or authority against whom such writ is sought, on the returnable date to show cause as to why rule should not be made absolute and the detenue should not be released from detention or confinement.

7. Before accepting the prayer made by the learned counsel to issue notice for production of the alleged detenue Sadhna Kumari in the court from the custody of the parents first of all it is to be considered by the court, whether the prima facie case is made up from the facts pleaded in the petition.

8. It is established by law that any detenue or a person acting on his/her behalf can move petition before the court for a writ of habeas corpus, one reason for the writ to be sought by the person other than the detenue is that he/she might be held incommunicado.

9. In the instant cas