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18+ girl can stay at any place she likes without constraints by her parents or husband

SCR.A/2446/2010 8/8 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION No. 2446 of 2010

For Approval and Signature:

HONOURABLE MR.JUSTICE A.M.KAPADIA

HONOURABLE MR.JUSTICE BANKIM.N.MEHTA

=========================================================

1

Whether Reporters of Local Papers may be allowed to see the judgment ?

2

To be referred to the Reporter or not ?

3

Whether their Lordships wish to see the fair copy of the judgment ?

4

Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether it is to be circulated to the civil judge ?

=========================================================

JAYESHKUMAR RAMANLAL PATEL – Applicant(s)

Versus

STATE OF GUJARAT & 2 – Respondent(s)

========================================================= Appearance :

MR DM AHUJA for Applicant(s) : 1

MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1 – 2 MR MAHESH BARAIYA for Respondent(s) : 3,

=========================================================

CORAM :

HONOURABLE MR.JUSTICE A.M.KAPADIA

and

HONOURABLE MR.JUSTICE BANKIM.N.MEHTA

Date : 21/12/2010

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA)

1. Rule. Mr. Dabhi, learned APP appears and waives service of notice of Rule on behalf of the respondent Nos.1 and 2, whereas Mr. Mahesh Baraiya, learned advocate appears and states that he has received instructions to appear on behalf of respondent No.3 and he shall enter his appearance representing respondent No.3 during the course of the day and he also waives service of notice of Rule on behalf of the respondent No.3.

2. By filing instant petition under Article 226 of the Constitution of India, the petitioner has prayed to issue writ of Habeas Corpus or any other appropriate writ, direction and/or order directing respondent No.2 to produce corpus Prakruti daughter of the petitioner, who is allegedly in illegal and wrongful confinement/detention of respondent No.3 – Rahul Suvarnasinh Thakur and hand over her custody to him.

3. As per the averments made in the petition, the petitioner has two daughters, out of which, eldest is Prakruti and she is studying in the First Year MBA of Dalia Institute of Management, Kanera. Respondent No.3 -Rahul Suvarnasinh Thakur is young boy of 19 years and he belongs to the dreaded Fracture Gangof Odhav area and his associates are involved in serious criminal activities of threatening vulnerable businessmen with dire consequences of inflicting fractures for exortion of money. The father of the respondent No.3 is a poor newspaper vendor and it appears that the respondent No.3 has no fear of law.

3.1 It is further averred that on 27.11.2010 at 4 o’clock in the early morning, the petitioner came to know that his daughter Prakruti was missing in a room and her cloths and books were also missing. He therefore, started search of his daughter, but he came to know from friends of his daughter and some neighbourhood boys that Prakruti might have been abducted by the respondent No.3 since they had come to know that respondent No.3 was trying to get close to Prakruti. However, the petitioner could not trace out his daughter.

3.2 It is further averred that thereafter, the petitioner lodged the complaint before the respondent No.2 on 27.11.2010 at 5:30 p.m. Thereafter, the petitioner continued his search and received information that corpus Prakruti has been abducted by respondent No.3 – Rahul Suvarnasinh Thakur along with his associates for forcing her to marry respondent No.3 – Rahul Suvarnasinh Thakur against her wish by giving threats of his association with fracture gang and that if she does not marry the respondent No.3, the member of the fracture gang will attack upon the petitioner.

3.3 It is further averred that the petitioner therefore, informed the respondent No.2 to take necessary legal action including lodging of the FIR against all the concerned accused involved in the offence and try to obtain custody of corpus Prakruti from the abductors and set her free.

3.4 It is also alleged that the respondent No.2 told the petitioner to find out corpus Prakruti himself and inform him so that he can reach the spot in police jeep to catch the accused. The attitude of the respondent No.2 appears careless and negligent and it appears that he has no concern for human life.

3.5 It is further averred in the petition that as per the information of the petitioner, corpus Prakruti was having mobile No.9662263048 and respondent No.3 is having mobile No.9558199691 and the respondent No.3 is in touch with his brother Kunjal who is having mobile No.9374473301. The petitioner has received authentic information that lastly, the respondent No.3 was moving in the Koraj Khodiyar Adalaj area of Dascroi taluka and respondent No.2 could have kept the aforesaid three mobile phones in surveillance to nab the accused along with corpus Prakruti.

3.6 The petitioner further averred that life of corpus Prakruti is in serious danger and she might be killed or she might be compelled to marry even though the respondent No.3 is only 19 years of age is not having legally valid marriageable age under the Hindu Marriage Act, apart from the consent of the corpus Prakruti. The death of birth of respondent No.3 as per school records of Navrang School, Odhav in General Register of 2005-2006 is 4.2.1991 and therefore, at present, the respondent No.3 is aged about 19 years and few months, whereas corpus Prakruti is older than the respondent No.3 Rahul Suvarnasinh Thakur and her birth date is 27.7.1990. Therefore, respondent No.3 is putting fear of life on the corpus Prakruti to marry him illegally and against her wish.

3.7 It is further averred that the parents of the respondent No.3 Rahul Suvarnasinh Thakur are trying to fabricate forged documents and illegal affidavits to save their skin from the prosecution that may be launched against the accused and they are not trying to disclose whereabouts of the respondent No.3 and the corpus. The petitioner has therefore, filed this petition and prayed for the relief to which the reference is made in the earlier paragraph of the judgment.

4. This Court vide order dated 8.12.2010 issued Notice to respondents, which was made returnable on 21.12.2010 on condition that the applicant shall deposit Rs.5000/- as a cost, to show his bona fide, on or before 9.12.2010 before the Registry of this Court.

5. Today when the matter is called out, Mr. LB Dabhi, learned APP for the respondent Nos.1 and 2, upon instructions received from Mr. GN Solanki, ASI, Odhav Police Station, Ahmedabad who is personally present in the Court, states that he has instructed relatives of the respondent No.3 – Rahul Suvarnasinh Thakur to the effect that respondent No.3 shall produce the corpus Prakruti before the Court. He further states that respondent No.3 Rahul Suvarnasinh Thakur is personally present before the Court and wants to produce corpus Prakruti before the Court. We have therefore, permitted him to produce the corpus before us.

6. We have ascertained wish and willingness of corpus Prakruti. She has in unequivocally terms stated before us that today she has come from the house of respondent No.3 Rahul Suvarnasinh Thakur with whom she wants to stay, who has produced her before the Court. She has further stated that she is not in illegal detention of respondent No.3 Rahul Suvarnasinh Thakur. She has stated that she, at her own will, voluntarily, accompanied respondent No.3 Rahul Suvarnasinh Thakur. She has further stated that she has married with respondent No.3 Rahul Suvarnasinh Thakur. She has further stated that her birth date is 27.7.1990. The said fact is not disputed by Mr. DM Ahuja, learned advocate for the petitioner, as he himself has produced the birth certificate of the corpus issued by the Talati-cum-Mantri, village Kathlal, Tal: Kapadvanj, wherein the date of birth is shown as 27.7.1990. Therefore, as on today, she is more than 18 years of age. She has also stated before the Court that age of respondent No.3 Rahul Suvarnasinh Thakur is above 19 years and the said fact is not disputed by Mr. Mahesh Baraiya, learned advocate for the respondent No.3. She has categorically stated that she does not want to go with her father the petitioner, who is personally present before the Court, at her parental home.

7. In the case of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234, the Supreme Court has observed that a woman who has attained majority is free to stay in any place she likes without constraints by her parents or husband. What is held by the Supreme Court in the above referred to case is that against her wishes a major girl cannot be sent to Nari Niketan or to her parents house.

8. On the facts and circumstances emerging from the record of the case and more particularly in view of the statement made by corpus Prakruti before the Court that she is not in illegal detention of respondent No.3 Rahul Suvarnasinh Thakur as well as she does not want to reside with her father petitioner, who is personally present before the Court so also in view of the reported decision of the Supreme Court as referred to herein above, since the corpus Prakruti is more than 18 years of age, she is sui juris and hence, no fetters can be placed upon her choice of the person with whom she has to stay. We have therefore, permitted her to go wherever she wants to go.

9. Seen in the above context, the Habeas Corpus petition lacks merit and deserves to be rejected.

10. At this stage, Mr. DM Ahuja, learned advocate for the petitioner does not press this petition and seeks leave to withdraw the same with a prayer that the amount of Rs.5000/- deposited by the petitioner, as a condition precedent for issuance of notice, may be paid back to the petitioner, as the petitioner being the father of the corpus Prakruti, has every right to inquire about the welfare of his child and the intention of the petitioner in filing the petition is only to know the welfare of his child.

11. Mr. Dabhi, learned APP as well as Mr. Mahesh Baraiya, learned advocate for respondent No.3 have no objection if leave as prayed for is granted and also the amount of Rs.5000/- be paid back to the petitioner.

12. In view of this, this Habeas Corpus petition is disposed of as it is withdrawn. Rule is discharged.

13. Registry is directed to pay back the amount of Rs.5000/- to the petitioner upon due verification.

(A.M.KAPADIA, J.)

(BANKIM.N.MEHTA, J.)

 

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