JUDGMENT
P.C. Jain, J.
1. This is a petition for hapeas corpus under Article 226 of the Constitution of India.
2. Briefly stated the facts of the case are that Priti Tiwari passed her Secondary Examination in the year 1979 from the Board of Secondary Education, Rajasthan, Ajmer. In the certificate her date of birth is mentioned as 29th June, 1963. She also passed her Bachelor Degree in Arts in 1983, from the Rajasthan University and later on passed MA Examination in the year 1985-86. After passing her examination, she took employment. She came in contact with Sirajul Haque while she was working with the petitioner in Kankariya Gas Service. It is stated by the petitioner Sirajul Haque that the petitioner and Priti Tiwari took a decision at their free will to remain as husband and wife for all purposes and a document was executed between them on 13th June, 1988, The petitioner filed a certificate of Secondary Examination and a certificate of having passed MA Examination from the University of Rajasthan. The learned Counsel for the petitioner has produced the original before the Court. In the petition the petitioner has further stated that the father of Priti Tiwari has filed an FIR which has resulted into registration of a criminal case under Section 366, I.P.C., in which the father has alleged that the age of Priti Tiwari is 17 years and the petitioner has abducted her and, thus, deprived the father from the lawful custody. If further appears the Addl. Chief Judicial Magistrate, Jaipur vide order dated 27th June, 1988, directed her to remain in the Government Rescue Home, Jaipur. Shri Ajay Purohit, learned Additional Government Advocate, has placed before me the order of the Magistrate directing to keep her in the Government Rescue Home.
3. The case of the petitioner is that Priti Tiwari is being kept in the Government Rescue Home against her will, though she wants to remain with the petitioner; while the case of the respondent State is that she has been sent to the Government Rescue Home for her own safety and, as per the directions given by learned Additional Chief Judicial Magistrate vide his order dated 21st June, 1988. The learned Magistrate passed the order during the course of investigation of the offence under Section 366, I.P.C. against the petitioner.
4. This Court vide order dated 29th June, 1988, on the Habeas Corpus Petition directed the Superintendent, Government Rescue Home, Jaipur, respondent No. 2 to produce Priti Tiwari alias Sabana, daughter of Raj Kumar Tiwari before this Court on 1st July, 1988. In pursuance of the said order, Priti Tiwari has been produced before this Court today.
5. Petitioner Sirajul Haque, is not present in the Court. He is being represented by Shri Ushman Khan and Shri Kursheed Ahmed, Advocates, The State is being represented by Shri Ajay Purohit, Additional Government Advocate. The parents of the girl, Priti Tiwari, are also present in the Court. The Superintendent, Government Rescue Home, Jaipur has also appeared before the Court in pursuance of the directions of the Court given vide order dated 29th June, 1988.
6. The parents of Priti Tiwari desired a meeting with her and, as such the Court arranged a meeting between Priti Tiwari and her parents. For some time, the meeting took place. Priti Tiwari was asked about her willingness either to remain in the Government Rescue Home, Jaipur, or to go with the parents or with Sirajul Haque, the petitioner. Her statement was also recorded. In her statement was also deposed that she was born on 29th June, 1963. She has further deposed that she would like to go with Sirajul Haque rather than with her parents and, in no case she would like to continue in the Government Rescue Home.
7. I have heard the learned Counsel for the petitioner Shri Ushman Khan, Shri Arun Pandey, learned Counsel who is representing the parents of Priti Tiwari and the learned Additional Government Advocate on behalf of the State of Raj. In a writ petition for Habeas Corpus, the main question which requires to be decided by the Court is about the age of the person who is under detention and, further to see whether the detention is lawful or not and in case the person detained is not under any valid or lawful order, then the desire of the person to be set free is to be taken into consideration. From her statement and from the documents on record (even the parents have not disputed that Priti Tiwari is major) it is clear that she is of 25 years of age. She has passed her Secondary Examination in the year 1979, the certificate mentioned her date of birth to be 29th June, 1963. It is also clear that there is no criminal case or criminal charge levelled against her. In the criminal case, which has been registered against the petitioner, at the most, she can be cited as a witness. There is no provision under law which empowers a Magistrate to pass an order of detention of a major woman to be kept in the Nari Niketan without her consent. Since Priti Tiwari is of 25 years of age and major, she is sui-juris and no fetters can be imposed on her movement. In case her detention is not required by any lawful order, as putting any fetters on her movement will be against the spirit of Article 21 of the Constitution of India which provides that no person shall be deprived of his life and personal liberty except in accordance with the procedure laid down under law. In view of the facts stated above, particularly, in view of the fact that Priti Tiwari is of 25 years of age and is sui-juris and there is no criminal case against her, there appears to be no reason to continue her detention in the Nari Niketan without her consent. This Court in D. B Habeas Corpus Writ Petition No. 1724/1981, Zaheer Ahmed Khan v. State of Rajasthan adn Ors: decided on November 20, 1981, had the occasion to consider this aspect of the matter as to whether a major woman can be kept in the Nari Niketan without her consent. A learned Division Bench of this Court observed that there is no provision under law which empowers a Magistrate to pass an order of detention of major woman in the Nari Niketan without her consent. In another case Dr Nazar Mohammed v. State of Rajasthan and Ors. D.B Special Appeal No. 289/1982, decided on 26th November, 1982, this Court followed the view taken by this Court in the above referred division bench judgment, and held that keeping a major woman against her wishes in the Nari Niketan is contrary to law and offends fundamental rights guaranteed under Article 21 of the Constitution of India.
8. In the premises aforesaid and looking to her willingness, the detention of Priti Tiwari alias Sabana cannot be allowed to be continued in the Government Rescue Home, Jaipur.
9. The writ petition is, therefore, allowed, the order dated 26th June, 1988, passed by the learned Additional Chief Judicial Magistrate, Jaipur is set aside and Priti Tiwari is set at liberty and she will be accordingly released forthwith from Nari Niketan by respondent No. 2. It would be the responsibility of respondent No. 1 to make suitable arrangements for going of Priti Tiwari where she has desired to go before me. Suitable police arrangements shall be made by the police for her escort upto her desired place.