MOHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This Habeas Corpus petition has peculiar facts. Though the similar facts may be in several cases, yet we would like term it as a peculiar fact case because of the reason that both the learned counsel are aware that even if any order for the custody of the corpus will be passed by this court it can survive only for only 9 days yet instead of setting out the matter amicably, wants court's order. This type of controversy may be due to changing social set up and can be said to be a bye-product of the so called development ignoring the welfare of the children. The petitioner-the father of the Corpus (girl) has filed this Habeas Corpus petition alleging that the respondent No. 7 with the connivance of his father-respondent No. 6 kidnapped the Corpus, who alleged to be of the age of more than 17 years and as per the Annex. 1 produced by the petitioner himself the age of the girl is 18 years as on 1.1.2011 and as per the second document produced subsequently as Annex. 3 - the age certificate obtained from the competent authority of the Ahmedabad Municipal Corporation, she would attend the age of 18 years on 1.2.2011. The petitioner in petition itself has stated that the Corpus's engagement was performed with the respondent No. 7, but the Corpus had no intention to marry and this was conveyed to the respondent No. 7 through the family members, obviously from the petitioner's side. According to the petitioner because of this break in relationship, the respondent No. 7 become furious and he kidnapped the Corpus on 19.12.2010 at around 5.30 PM by forcibly taking her in the car bearing number-plate of State of Maharastra. It is stated that at the time of kidnapping the corpus, the brother-Rahul (age 14 years) of the corpus was given severe beating by the respondent No. 7. It is also alleged that the corpus herself resisted attempt of her kidnapping, but she failed. It is also stated in the petition that a report was lodged in the police station concerned in writing on 19.12.2010 itself by brother-in-law of the petitioner as, the petitioner himself was not available in the town as he was at Ahmedabad at the relevant time. The petitioner apprehended that the respondent No. 7 may forcibly marry the girl and ultimately he filed this Habeas Corpus petition on 22.12.2010.

(2.) The Coordinate Bench of this Court entertained the Habeas Corpus petition and directed the Government Advocate/learned Public Prosecutor to bring the Case Diary on next date of hearing to enable the court to appreciate the issue involved in the case and the next date was fixed as 5.1.2011. According to learned counsel for the petitioner on 5.1.2011, without any notice to the respondents Nos. 6 and 7, they brought the corpus in the court, but since they were not directed to appear in the court nor the notices were issued to the respondents, therefore, according to learned counsel for the petitioner, the girl was allowed to go back. It appears that on 5.1.2011 though the case was fixed for listing on 7.1.2011, but it was listed in the court on 10.1.2011. According to learned counsel for the petitioner, the respondents Nos. 6 and 7 again brought the corpus in the court on 10.1.2011. The bringing of the corpus in the court by the respondents Nos. 6 and 7 is admitted by the respondents Nos. 6 and 7 today before us. However, there is no attendance marked of the corpus in the court in the order-sheet dated 5.1.2011 and 10.1.2011 and that can be because of the reason that the corpus was not called by the court nor the notices were issued to the respondents Nos. 6 and 7. However, it has come on record that on 11.1.2011, the corpus was produced before the court of Judicial Magistrate, Sumerpur, District Pali by the police and it was submitted that the corpus whose date of birth is 1.1.1993 and who by the time i.e., by 11.1.2011 attained the age of 18 years on asking, informed that she contacted the marriage on 2.1.2011 at Arya Samaj, Jodhpur with respondent No. 7 Bharat Kumar and she wants to go with said Bharat Kumar. The learned Judicial Magistrate observed that since the girl is major and she has contacted marriage with Bharat Kumar, therefore, she can go with Bharat Kumar and security to be provided by the Police. It appears from the order dated 11.1.2011, certified copy of which has been placed on record as Annex. R/7/2 that at 4.30 PM before further proceedings could have been taken in the court of Judicial Magistrate, Sumerpur, an application was submitted by the petitioner through advocate alleging therein that the date of birth of his daughter is 1.2.1993 and, therefore, the corpus is minor and her custody cannot be given to the respondent-Bharat Kumar. The petitioner also brought to the notice of the court below that the Habeas Corpus petition is pending before the High Court and the next date is fixed is 13.1.2011. The learned Judicial Magistrate observed that since the corpus is not ready to go with the father, therefore, she be sent to the Nari Niketan, Jodhpur as the matter is pending before the High Court also. It was also taken note of by the court below that for sending the corpus to the Nari Niketan, Jodhpur both the parties agreed. In these circumstances, the corpus remained in the Nari Niketan, Jodhpur from 11.1.2011 and today also she was brought from Nari Niketan, Jodhpur. The corpus mother and father met with her, but the respondent Bharat Kumar and his father and other family members did not meet or were not allowed to meet the corpus.

(3.) Today we tried to impress the parties through their counsel in open court to sort out the possibility of settlement in view of the order passed by the Coordinate Bench of this court dated 18.1.2011. On 18.1.2011 the Coordinate Bench of this court clearly observed that without going into the legal controversy at this stage we requested the parents of both parties to see that matter is sorted out amicably in the best suitable manner so that future of boy and girl who claim to have married is secured and maintained. It will be worthwhile to mention here that the Coordinate Bench clearly observed as under:-