R RAJESHWARAN Vs. STATE

JUDGEMENT

(1.) The instant application under Art. 226 of the Constitution of India for issuance of a writ of habeas corpus appears to be an aftermath of the abortive attempt to initiate the proceeding under S. 97 of the Cr. P.C. giving rise to the Misc. Case No. 35 of 1996 before the Court of the learned Chief Judicial Magistrate at Port Blair. The petitioner before this Court has only made an averment to the effect that he has gone in for an unauthorised sexual relation with a girl named in the petition as Neena, and as a result of the same, a child was conceived and the lady concerned gave birth to the said child. Only as per claim of the petitioner, he can at best claim himself to be a putative father of the said child conceived by the aforesaid girl namely Neena and there is no independent corroboration of the same either by medical opinion or from any independent agency. Even assuming the version to be correct, the prayers as has been made either before the criminal Court or before this forum are not for production and/or custody of the child born through the alleged union, but for issuance of a writ of habeas corpus for production and taking over the custody of the aforesaid girl by the name of Neena. Pursuant to the direction given by this Court, Mr. Saroop, the learned Public Prosecutor, has produced a communication wherefrom it appears that she is found to be living on her own wishes with her father and not forcibly.

(2.) The petitioner's claim who has fallen in love with the said girl by the name of Neena, does not put forward any claim of legal locus standi as lawful married husband of the said girl. The said person can at best be paramour who is now before this Court. But he does not appear to have any authority to represent the alleged detained person who cannot move the. Court and this. Court is doubtful about the legal locus standi of such person to maintain the application under Art. 226 of the Constitution of India. for issuance of a writ of habeas corpus.

(3.) This Court is made to ponder over another important aspect which lies at the root of this controversy. It is well known that the national policy of this country is to make endeavour so that tribes can be assimilated in the national main stream of life. But they are required to be protected by way of retention of their separate identity. Our Constitution envisages some of the salient provisions for protection of persons affiliated to scheduled tribes and such protection has been offered by the founding fathers of the Constitution in order to maintain the character, monolithic entity of such tribes so that they may not be invaded by outsider's and their social life may not be, allowed to be perverted and made vulnerable. It is the concern of the policy makes as well as the founding further and in terms of definition of the 'law' as contemplated in the Constitution of India, 'law' includes customs. It is father well known that the tribes are regulated and governed by the customs and the customs mould their society. Custom is stated to be precursor of law which in turn is the cementing bond of such type of society where the tribals live. Insofar as the commonality of the features of customs of the tribes are concerned it is well known that in the tribal area women have distinct and different role to play than from the women of urban and rural society. Marriages of the divorced persons are normally permissible and as per commonality of the features customs prevalent among tribes of this region, if a woman is keen of marrying for the second time or if a woman wishes to formally marry within the tribes, then such woman is accepted in the tribal society along with the child and her child is treated as regular member of the family of the husband of said woman. There is no distinction made between natural born child, adopted child illegitimate child in the tribal society. It is also known to the experts who have made the research the domain of Anthropology and the anthropological jurisprudence which has emerged a new dimension of the jurisprudence tends to indicate that normally entertainment of strangers in the tribal life and tribal society is not encouraged by the tribal people. In that view of the matter, if the tribal customs do not permit any person affiliated to that particular tribe to go beyond the tribe then such tendency should be discouraged for national integration itself for retention of cultural identity of the tribes. This Court has its own reservation about the exploitation of the simplicity of the tribal people and such exercises do not confer any person with a valid right or legal claim to make a prayer which may not be accepted for its implication, as a result of which the girl concerned may be treated as outcast from the particular tribe and she may not have any access. Taking into account the conspectus of the social monolithic entity of such tribes and keeping in view the constitutional safeguards and national policy adopted by the policy makers, this Court does not also subjectively encourage such practice, as a result of which the distinct culture of the tribes may be clouded. It is unfortunate that this country is yet to evolve a proper policy and this Court feels that attempts are to be made for codification of common features of tribal customs so that they may not be governed by any alien system.