w w w . L a w y e r S e r v i c e s . i n



Prakash v/s State of Rajasthan & Others

    Writ (Habeas Corpus) Petition No. 1866 of 1985

    Decided On, 19 December 1985

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE S.C. AGRAWAL & THE HONOURABLE MR. JUSTICE FAROOQ HASAN

    For the Appearing Parties: --------------



Judgment Text


Suresh Chander Agrawal J.

1. This Habeas Corpus petition has been filed by the petitioner Prakash Gwalera who claims to be the husband of Rachna, the daughter of Shri Phool Chand Kalal, respondent No. 3. In this writ petition, the petitioner has alleged that Rachna is being illegally detained under the order dated 9th October, 1985 passed by the Addl. Munsiff and Judicial Magistrate No. 1, Kota (South), respondent No. 2, and it has been prayed that Rachna be ordered to be set free and the order dated 9th October, 1985 passed by respondent No. 2 be quashed.

2. According to the averments contained in the writ petition the said Rachna is 19 years of age and that she left the house of her father on her own accord on 6th September, 1985 and that the petitioner and Rachna were married according to the Hindu rites in the Arya Samaj at Ajmer on 16th Sept., 1985. In the petition it has also been stated that on 8th September, 1985 respondent No. 3 lodged a report at police station Kotwali Kota stating that Rachna has been kidnapped by the petitioner and on the basis of the said report a case under Sections 363/366 IPC was registered at Police Station Kotwali, Kota. The petitioner has further alleged that apprehending his arrest in the said case, the petitioner moved a bail application before this Court u/s 438 Cr. PC and in that bail application this court was pleased to order that Rachna should be produced by the petitioner in this Court on 7th October, 1985 and that on 7th October, 1985, the matter was not listed in the Court and the petitioner was directed to produce Rachna in the Court on 8th October, 1985 The petitioner has further alleged that on 8th October, 1985, the SHO Police Station Vidhayak-puri, Jaipur and Shri Shekhawat, S.I. Kotwali, Kota who had come to Jaipur in connection with this case, arrested the petitioner and his father Durgalal and also recovered Rachna and that the petitioner as well as Rachna were taken to Kota and Rachna was produced before respondent No. 2 on 9th October, 1985 and since Rachna insisted before respondent No. 2 that she would go with the petitioner, respondent No. 2 passed an order 9th October, 1985 directing that Rachna be sent to Nari Niketan, Kota and that in pursuance of the said order of respondent No. 2, Rachna is being detained in Nari Niketan against her will.

3. Along with the writ petition, the petitioner has filed the report of the Medical Jurist, Tonk dated 13th September, 1985 wherein an opinion has been expressed that the age of Rachna is between 18 and 19 years, the affidavit of Rachna dated 14th September, 1985 wherein she has asserted that her age is 19 years and the copy of the Marriage certificate dated 16th September, 1985 issued by the Secretary, Arya Samaj, Adarsh Nagar, Ajmer relating to the marriage of the petitioner and Rachna.

4. The writ petition has been opposed by the respondent No. 3 as well as the State. Respondent No. 3 has filed an application for being given custody of Rachna and in the said petition he has alleged that Rachna was born on 19th November, 1968 and is a minor and that she was kidnapped by the petitioner from rightful guardianship of respondent No. 3. In the said application, it has been stated that the petitioner is already married to one Smt. Binoo alias Guddi five years back and the said marriage is still subsisting and that the alleged marriage between the petitioner and Rachna is illegal and void ab initio. In the said application it has also been stated that the petitioner is a man of bad character and there are several criminal cases pending against him and that the petitioner had kidnapped Rachna with a view to extort money from respondent No. 3. Along with the said application the respondent No. 3 has filed a copy of the Birth Certificate issued by the Registrar, Birth and Deaths, Municipal Council, Kota as well as the Birth Certificate issued by the Medical Officer, Incharge, Jay Kay Lon Zanana Hospital, Kota and the affidavit of Smt. Bhagwati Devi, wife of respondent No. 3, in proof of the age of Rachna. Respondent No. 3 has also filed affidavit of Smt. Binoo alias Guddi in support of the allegation that the petitioner was married to Smt. Binoo alias Guddi on 12th February 1981 and the said marriage is still subsisting. In addition, respondent No. 3 has also filed the certificate about the cases pending against the petitioner, which has been issued by the SHO Police station, Gumanpura, Kota, on 29th September, 1985 and which shows that case No. 75/28-4-1979 under Sections 432, 147, 149, 323 IPC and case No. 321/83 u/s 379 IPC have been registered against the petitioner and in case No. 41/110 Cr.PC challan was filed in the court on 16th November, 1984 and the Report No. 823/16-11-83 u/s 323 IPC has been registered and case No. 97/83 under Sections 353, 451, 427 IPC has been registered at police station, Nayapura and a warrant has been issued against the petitioner by the court.

5. The petitioner has filed his reply to the application submitted by respondent No. 3, wherein he has submitted that the birth certificate filed by respondent No. 3 along with his application are false and fabricated. In the said reply the petitioner has also stated that in the caste of the petitioner, the custom of second marriage is prevalent. The petitioner has further stated that if Rachna is given in the custody of respondent No. 3, she may either commit suicide or she may be murdered by her father who has threatened to do so.

6. This Court by order dated 17th October, 1985 directed that Rachna may be produced before this Court on 18th October, 1985 and in pursuance of the said order Rachna was produced in this Court on 18th October, 1985. Since there were contradictory medical reports with regard to the age of Rachna, this Court directed the Superintendent, S.M.S. Hospital, Jaipur to constitute a Board of three doctors of the rank of Professors and Readers to ascertain the age of Rachna and to send their report along with their opinion regarding her age within a week and that Rachna may be kept in Nari Niketan at Jaipur. In pursuance of the aforesaid direction of this Court, the Superintendent, S.M.S. Hospital, Jaipur constituted a Medical Board and the said report of the Medical Board, along with the X-ray plates, has been forwarded to this Court by the Medical Superintendent, S.M.S. Hospital by letter dated 30th October, 1985. According to the report of the Medical Board, Rachna was above 16 years, but below 18 years and was about 17 years of age on the date of examination i.e. on 30th October, 1985.

7. We have heard Shri S.P. Tyagi, the learned counsel for the petitioner in support of the writ petition and the learned Government Advocate and Shri R.P. Garg, learned counsel for the respondent No. 3.

8. During the course of his arguments, Shri Tyagi placed before us the photo stat copy of the application dated 9th October, 1985 submitted by Bhanwar Singh Sub-Inspector Police Station, Kotwali, Kota in the court of respondent No. 2 as well as the application dated 9th October, 1985 submitted by respondent No. 3 for giving custody of Rachna to him and the orders passed by respondent No. 2 on those applications on 9th October, 1985 as well as subsequent orders passed by respondent No. 2 in the proceedings pending before him. In this application dated 9th October, 1985 Bhanwar Singh Sub-Inspector, Police Station Kotwali, Kota has stated that Rachna was recovered in connection with case No. 139/85 under Sections 366A, 354 and 376 IPC on 8th October, 1985 and she has been produced in the Court and that he has expressed her desire not to go to her parents and since Rachna had to be medically examined at 5.30 p.m. directions may be given that after medical examination, Rachna may be sent to Nari Niketan. In his application dated 9th October, 1985, respondent No. 3 submitted that Rachna is a minor and since she is legal guardian of Rachna and entitled to her custody, directions may be given for giving the custody of Rachna to him. On that application, respondent No. 2 passed orders on 9th October, 1985 wherein he recorded that Rachna appears to be minor and that she has expressed the desire that she does not want to go and stay with her parents and that she wants to stay with the petitioner. Respondent No. 2 has further observed that the mental condition of Rachna did not appear to be alright and that taking into consideration her mental condition, it would be proper to send her to Nari Niketan, Respondent No. 2, therefore, directed that after medical examination of Rachna, she may be admitted in Nari Niketan, Kota. The Magistrate fixed the matter for arguments on the application of respondent No. 3 with regard to custody of Rachna on 11th Oct., 1985. On Oct. 11,1985, the matter was adjourned to Oct. 15, 1985 in order to enable the court to ascertain the wishes of Rachna again. On 15th Oct., 1985 Rachna was produced before respondent No. 2 and on being questioned, she again expressed her desire to go with the petitioner. The matter was adjourned to 16th October, 1985 for arguments on the application of respondent No. 3 at the request of the counsel for the petitioner. On 16th October, 1985, the arguments were heard on the application and the case was fixed for pronouncement of the orders on the application on 17th October, 1985. On 17th October, 1985, before the orders could be pronounced by respondent No. 2, an application was submitted on behalf of the petitioner whereby it was pointed out that the writ petition has been filed in this Court and it was requested that the order may not be pronounced on the application of respondent No. 3. Respondent No. 2, therefore, did not pass orders on the application of respondent No. 3 and fixed the matter for pronouncement of order on 18th October, 1985. On 18th October, 1985, the counsel for the petitioner submitted an application before respondent No. 2 where it was stated that Rachna was being produced before this Court on that date and that the matter may be adjourned and thereupon the case was adjourned to 19th October, 1985. On 19th October, 1985, the matter was adjourned to 29th October, 1985 and thereafter to 18th November, 1985.

9. Rachna was produced before us on 7th November, 1985 and her statement was recorded. In her statement, Rachna expressed the desire to go with the petitioner and stated that she does not want to go with her parents. She also stated that she does not want to live with any of her relatives and that she also does not wish to stay in Nari Niketan.

10. The first question which needs to be considered in this writ petition is with regard to the age of Rachna because legality of the detention of Rachna is interlinked with the question as to whether she is major or a minor. In case Rachna is found to be major, then no direction with regard to her being kept in Nari Niketan against her will could be given by respondent No. 2. In this connection reference may be made to the decision of the division bench of this Court in Dr. Nazar Mohammad v. State of Rajasthan and Ors. D.B Special appeal No. 289 of 1982 decided on 26th November, 1982. In that case if has been held that there is no provision under any law which empowers the Magistrate to pass an order of detention of a major woman in Nari Niketan without her consent and that detention of a major woman in Nari Niketan against her wishes is violative of her fundamental right guaranteed under Article 21 of the Constitution.

11. In the present case the petitioner has alleged that Rachna is major and her age is 19 years. In support of his aforesaid submission, the petitioner has placed reliance on the certificate (Annexure 1) dated 13th September, 1985 issued by the Medical Jurist, Sadat Hospital, Tonk wherein an opinion has been expressed that the age of Rachna is between 18 and 19 years. Respondent No. 3, on the other hand, has alleged that Rachna is a minor girl aged 17 years and her date of birth is 19th November, 1968. In support of the aforesaid averments, respondent No. 3 has filed a copy of the birth certificate issued by the Registrar, Births and Deaths, Municipal Council, Kota as well as the birth certificate issued by the Medical Officer Incharge Jay Kay Lon Hospital, Kota and the affidavit of Smt. Bhagwati Devi, wife of respondent No. 3 and the mother of Rachna, that the date of birth of Rachna is 19th November, 1968. In this connection it may, also be mentioned that in the order dated 18th October, 1985 it is recorded that according to the medical examination report of the Medical Jurist, Kota, the age of Rachna is 17 years. In view of conflicting reports of medical experts with regard to the age of Rachna, this Court,by order dated 18th October, 1985, directed the Superintendent, S.M.S. Hospital, Jaipur to constitute a Medical Board to ascertain the age of Rachna. In pursuance of the aforesaid direction, Rachna was examined by a Medical Board and in their report dated 30th October. 1985, the members of the Board, after clinical and radiological examination of Rachna, have expressed the opinion that Rachna is above 16 years but below 18 years and is about 17 years of age on the day of examination, i.e. on 30th October, 1985. The aforesaid report of the Medical Board lands support to the case of respondent No. 3 that Rachna is a minor and was born on 19th November, 1968 because on the basis of that report, the age of Rachna comes to about 17 years on 30th October, 1985. In these circumstances, it must be concluded that on the date of passing of the order dated 9th October, 1985 by respondent No. 2, Rachna was a minor being about 17 years of age and she is minor even now.

12. The next question which arises for consideration is as to whether a direction could be given by respondent No. 2 for keeping Rachna in Nari Niketan and her continued detention in Nari Niketan is illegal and if so, what relief should be granted in the writ petition.

13. In the Code of Criminal Procedure, 1973, provisions are contained in Sections 97 and 98 whereunder a Magistrate has been empowered to pass orders relating to persons produced before him. Section 97 deals with the situation where a search warrant is issued for the search of a person confined under such circumstances as the confinement amounts to an offence and the person found as a result of the said search is produced before a Magistrate. The said section empowers the Magistrate to make such order as in the circumstances of the case seems proper. Section 98 deals with a situation where a complaint is made before a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class, on oath about the abduction or unlawful detention of a woman or female child under the age of 18 years for any unlawful purpose and it empowers the Magistrate to make an order for the immediate restoration of such woman to her liberty or of such female child to her husband, parent, guardian or other person having lawful charge of such child and may compel compliance with such order, using such force as may be necessary. The aforesaid provision postulates that in case of complaint about abduction or unlawful detention of a female child under the age of 18 years for any unlawful purpose, the Magistrate can pass an order for immediate restoration of such female child to her husband, parent, guardian or other person having lawful charge of such child. There may. however, be cases where there may be dispute about the custody of the minor female child or the minor female child refuses to stay with her husband, parent or guardian. In such a case the question as to custody of the minor female child will have to be resolved by the civil court competent to deal with such matters. But till the civil court passes an appropriate order in that regard, the Magistrate may pass an interim order for the custody of the minor female child with any individual or an institution keeping in view of the interests of the minor female child.

14. In the present case Section 97 Cr.PC has no application because no search warrant had been issued by a Magistrate and Rancha was not found in pursuance of a search warrant issued by a Magistrate. She was recovered by the police in connection with case No. 139 of 1985 registered at police station Kotwali, Kota under Sections 366A, 354 and 376 IPC on the basis of the report lodged by respondent No. 3 at that police station on 8th September 1985. The present case is also not fully covered by Section 98 Cr.PC because no complaint was made on oath before respondent No. 2 with regard to the abduction or unlawful detention for an unlawful purpose of Rachna. Strictly speaking, therefore, respondent No. 2 could not have passed an order about the detention of Rachna at Nari Niketan u/s 98 Cr.PC on 9th October, 1985,

15. It is, however, not disputed that Rachna was produced before respondent No. 2 on 9th October, 1985 by the police in connection with a case registered at police station Kotwali, Kota under Sections 366A, 354 and 376 IPC against the petitioner on the basis of the report lodged by respondent No. 3, who happens to be father of Rachna. The Magistrate in his order dated 9th October, 1985, has also recorded that Rachna appeared to be a minor and when asked, Rachna had expressed her desire not to go with her parent. The Magistrate felt that the mental condition of Rachna was not alright and in these circumstances he felt proper to direct that she may be sent to Nari Niketan.

16. In this context it may be mentioned that Nari Niketan is in the nature of a Rescue Home and a Protective Home established by the State Government in accordance with the Rules for the Administration, Admission and Rehabilitation of persons in Homes and Shelters, 1970 notified by the State Government vide notification dated August 13, 1970, published in the Rajasthan Raj Patra dated 18th February, 1971. Rule 6 of the said Rules provides that the Government may establish or maintain a State Rescue Home for the women facing moral danger, or those rescued from immoral traffic. A perusal of the aforesaid Rules shows that although women and girls rescued under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956, are admitted in these homes, but apart from these women and girls, women and girls who are facing moral danger can also be admitted in these homes. It cannot, therefore, be said that these homes are purely for women and girls who have been rescued from immoral traffic under the provisions of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The Nari Niketan maintained by the State Government for the protection of females facing moral danger can be considered to be a suitable place where a minor female child may be kept till appropriate orders are passed by the competent court with regard to her custody in cases where there is a dispute with regard to the person who is entitled to the custody of the minor and there is no suitably person with whom the minor female child may be kept. In our opinion, therefore, it cannot be said that a Magistrate is not competent to pass an order directing a minor girl to be kept in Nari Niketan u/s 98 Cr.PC if the Magistrate is satisfied that the minor girl was being unlawfully detained for an unlawful purpose. Such a detention in the Nari Niketan can, however, be for a limited period only till proper orders with regard to custody of the minor are passed by the competent court. It cannot therefore, be said that respondent No. 2 had no jurisdiction what-so-ever to pass an order directing that Rachna be kept in Nari Niketan, Kota. The order dated 9th October, 1985 passed by respondent No. 2 cannot be treated to be an order passed without jurisdiction. All that can be said is that the conditions laid down in Section 98 Cr.PC for exercise of the power u/s 98 Cr.PC were not fulfilled in the present case in as much as there was no complaint on oath that Rachna was being unlawfully detained for an unlawful purpose before respondent No. 2 passed the order dated 9th October 1985. But at the same time it cannot be ignored that at the time when respondent No. 2 passed the order dated 9th October, 1985 there was before him the application submitted by S.I. Bhanwar Singh of P.S. Kotwali, Kota which showed that Rachna had been recovered from the custody of the petitioner during the course of investigation of the case under Sections 366A, 354 and 376 IPC registered against him on the basis of report lodged by Respondent No. 3 at police station, Kotwali, Kota. There was also the application of respondent No. 3 for being given the custody of Rachna wherein it was stated that Rachna is a minor. In his order dated 9th October, 1985, respondent No. 2 has recorded that Rachna appeared to be a minor. In the said order respondent No. 2 has also recorded that he had ascertained the wishes of Rachna and that she had refused to go and stay with her parents and wanted to go with the petitioner. Respondent No. 2 felt that Rachna should be given some time for reconsideration and in these circumstances he passed the order directing that Rachna may be kept in Nari Niketan, Kota and he fixed the application of respondent No. 3 for custody of Rachna on 11th October, 1985 for arguments, keeping in view the aforesaid circumstances all that can be said is that in passing the order dated 9th October, 1985 directing that Rachna be kept in Nari Niketan, Kota, respondent No. 2 had committed an irregularity in the exercise of his jurisdiction and the detention of Rachna in Nari Niketan, Kota is not fully in accordance with law.

17. This, however, does not mean t

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hat the writ petition must succeed and Rachna should be set at liberty as prayed by the petitioner. In facts and circumstances of the present case, we are of the opinion that such a direction cannot be given. As held earlier Rachna is a minor female girl and in so far as a minor female child is concerned, an order setting her at liberty cannot be passed and in case it is found that her custody is not legal, she may be directed to be placed in the custody of the person who is legally entitled to her custody. In the present case respondent No. 3 is claiming the custody of Rachna in his capacity as her father. The petitioner is claiming custody of Rachna on the basis of his alleged marriage with Rachna. ' There is controversy with regard to the legality of the said marriage because it has been submitted by respondent No. 3 that on the date of the said marriage, the petitioner was already married to Smt. Binoo alias Guddi and the said marriage is subsisting. The petitioner has not disputed the factum of his earlier marriage with Smt. Binoo alias Guddi, but he has asserted that there is a custom of second marriage prevalent in his caste. We do not propose to go into the legality of the marriage of petitioner with Rachna. But in view of the dispute with regard to legality of the marriage of the petitioner with Rachna, we cannot give a direction that Rachna may be given in the custody of the petitioner. Rachna has expressed the desire that she does not wish to go and live with her father, respondent No. 3. In these circumstances we are of the opinion that the matter with regard to custody of Rachna may be examined by the competent court in accordance with the provisions of the Guardian and Wards Act and the Hindu Minority and Guardianship Act and till suitable orders are passed by the said Court, Rachna may continue to stay at Nari Niketan, Kota. 18. The writ petition is, therefore, disposed of with the direction that Rachna may continue to stay at Nari Niketan, Kota till appropriate orders about her custody are passed by the competent court in accordance with the provisions of the Guardian and Wards Act and the Hindu Minority and Guardianship Act. 19. Rachna was called to Jaipur for being produced before this Court and at present she is staying at Nari Niketan at Jaipur. She may be sent back to Nari Niketan, Kota. There will be no order as to costs in the writ petition.
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