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SCR.A/2244/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2244 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 ?
=========================================
BALVANTSINGH
BHAVSINGH ZALA
Versus
STATE
OF GUJARAT & 4
=========================================
Appearance :
MS.SAMATA
V PATEL for Applicant(s) : 1,
MR. L.B.DABHI, APP for Respondent(s)
: 1,4
MR. R.J.GOSWAMI of for Respondent(s) : 2,
3,5
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 30/11/2010
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Vide order
dated 22.11.2010, instant petition was posted for production of
corpus Binaba Zala before this Court on 6.12.2010. Since the corpus
Binaba Zala is traced out earlier, Mr.L.B.Dabhi, learned APP for the
Respondent – State of Gujarat made a request to this Court
that this matter may be circulated today, so that the corpus can be
produced before the court and her willingness may be ascertained.
Mr. L.B.Dabhi, learned APP has also stated that he has informed Ms.
Samata V. Patel, learned Advocate for the Petitioner. We have
therefore permitted to circulate this matter at 2:30 PM today by
notifying it on a separate board.
RULE.
Mr.
L.B.Dabhi, learned APP appears and waives service of notice of Rule
on behalf of Respondent Nos.1 and 4 whereas Mr. R.J.Goswami, learned
Advocate appears and waives service of notice on behalf of
Respondent Nos.2, 3 and 5.
By
filing instant Petition under Article 226 of the Constitution of
India, the petitioner has prayed to issue a writ of Habeas Corpus
and / or any other appropriate writ, order or direction, directing
Respondent No.4 -PSI, Dhandhuka Police Station, Dhanduka to produce
the corpus Binaba before this Court and to further direct to hand
over the custody of the corpus – Binaba
to the petitioner.
As per the
averments made in the Petition, the corpus – Binaba left her
house by saying that she is going to meet someone in new year and
thereafter she has not returned back to her home till evening and
therefore the petitioner has tried to call her on her Mobile phone,
but it was found switched off and till today no message or any call
is received by the petitioner from the said mobile number. The
petitioner therefore went to the concerned police station to lodge
an FIR, but the police officer refused to lodge any complaint and
registered Janvajog entry. As per the further averments made in the
petition, the petitioner received a phone call from the unknown
person saying that his name is Mayurbhai Nathubhai Sonara and the
corpus – Binaba – the daughter of the petitioner is in
his custody and also threatened not to file any police complaint.
After detailed inquiry, the petitioner came to know that the said
person is a trusty of Sohan Vidyamandir where the corpus Binaba is
working. The petitioner therefore apprehends that the corpus –
Binaba is in illegal detention of Respondent No.2 – Mayurbhai
Nathubhai Sonara without her wish and will and her life is in
danger. The petitioner has therefore filed this petition and prayed
for the reliefs to which the reference is made in earlier paragraph
of this judgment.
This
Court vide order dated 15.11.2010 issued Notice to the Respondents
and made it returnable on 22.11.2010 on condition that the
petitioner shall deposit Rs.5,000/- as cost with the registry of
this Court, to show his bonafide.
However,
on returnable date, the corpus – Binaba could not be traced
out and the matter was again adjourned to 6.12.2010.
Since the
corpus – Binaba is found out earlier, Mr. L.B.Dabhi, learned
APP, requested this Court to circulate the matter today and
therefore the matter is taken up for hearing today.
At the
time of hearing of this petition, Mr. L.B.Dabhi, learned APP, upon
instructions received from Naginbhai, Head Constable, Dhanduka
Police Station, who is personally present before the Court, states
that he has found out the corpus – Binaba from the custody of
Respondent No.2 and he wants to produce the corpus Binaba before
this Court. We have therefore permitted the Head Constable to
produce the corpus Binaba before this Court.
On
production of the corpus – Binaba, we have ascertained her wish and
willingness and also inquired as to whether she is in illegal
detention of Respondent No.2 – Mayurbhai Nathubhai Sonara.
She, in unequivocal terms stated that she is not in illegal
detention of Respondent No.2 and she has performed marriage with
Respondent No.2 on 21.2.2010 as per Hindu Rites at Raikhad and the
said marriage has also been registered with the Registrar, Marriage
and she is also happy with Respondent No.2 at her matrimonial home
where she wants to
permanently reside with Respondent No.2.
So far as
the age of the corpus – Binaba is concerned, there is no
dispute by the petitioner that she is about 24 years of age,
therefore she is major.
In
the case of Gian Devi v/s The Superintendent, Nari
Niketan, Delhi and Ors., (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 constraint
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’.
In view of
the facts and circumstances emerging from the record of the case and
more particularly the statement made by the corpus – Binaba before
this Court to the effect that she is a lawfully wedded wife of
Respondent No.2 – Mayurbhai Nathubhai Sonara and therefore she
was not in illegal detention of Respondent No.2 and she wants to
reside permanently with Respondent No.2 at her matrimonial home, the
corpus – Binaba is sui juris, no fetters can be placed upon
her choice of person with whom she wants to reside.
In view of
the aforesaid state of affairs, it cannot be said that the corpus-
Binaba is in illegal detention of Respondent No.2 – Mayurbhai
Nathubhai Sonara. Therefore, we have permitted the corpus –
Binaba to go with Respondent No.2.
Seen
in the above context, instant Habeas Corpus petition lacks
merit and deserves to be rejected.
At this
stage Ms. Samata V. Patel, learned Advocate for the Petitioner, upon
instructions received from the petitioner, does not press this
petition and seeks leave to withdraw the same.
The prayer
made by Ms. Samata V. Patel, learned Advocate for the Petitioner has
not been opposed by Mr. L.B.Dabhi, learned APP for Respondent No. 1
– State of Gujarat as well as Respondent No.4 – PSI,
Dhandhuka Police Station, Dhandhuka and also by Mr. R.J.Goswami,
learned Advocate for Respondent Nos. 2, 3 and 5.
Hence,
leave to withdraw the petition is granted. The petition stands
rejected as it is withdrawn. Rule is discharged.
At the
time of issuance of Notice, this Court has directed the petitioner
to deposit Rs.5,000/- as cost with the registry of this Court, to
show his bonafide.
Pursuant
to the aforesaid direction, the petitioner has deposited Rs.5,000/-
with the registry of this Court.
Since the
petitioner – Balvantsingh Bhavsingh Zala is coming from a very
poor family and ekes out his livelihood by serving as a Peon in
Referral Hospital, we therefore deem it expedient to pay back the
said amount of Rs.5,000/- to the Petitioner.
Registry
is therefore directed to pay back the said amount of Rs.5,000/- to
the petitioner upon due verification.
(A.M.Kapadia,J)
(B.N.Mehta,J)
Jayanti*
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