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SCR.A/1806/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1806 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
AND
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
MERAMBHAI
SHIVABHAI VALANIYA - Applicant(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance
:
MR
AB GATESHANIYA for
Applicant(s) : 1,
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR
PRAVIN GONDALIYA, for Respondent : 3
NOTICE NOT
RECD BACK for Respondent(s) : 4 -
7.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 12/10/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
By
filing instant petition under Article 226 of the Constitution of
India, petitioner has prayed to issue writ of Habeas Corpus or any
other writ, order or direction to the respondents or either of the
respondents to produce corpus Alpa Merambhai Valaniya before this
Court and further prayed to pass appropriate order regarding custody
of Alpa.
As
per the averments made in the petition, his daughter Alpa, aged
about 23 years has performed her study upto PTC and she has
completed PTC in the year 2009. It is further averred that on
7.8.2010, in the morning, Alpa told the petitioner that she wanted
to go to Surendranagar city to purchase clothes and other articles.
She, therefore, left her home in the morning for going to
Surendranagar. It is further averred that till late night of
7.8.2010, his daughter Alpa did not return back at home and,
therefore, he started inquiry with his relatives, but she could not
be found. It is further averred that his son-in-law Arvind informed
that Rajesh Babulal Shingana, respondent No.3 had abducted his
daughter with the help of respondents No.4 to 7. It is his
apprehension that his daughter might have been illegally confined by
respondent No.3. It is also asserted that his daughter has no affair
with respondent No.3, but before two years, respondent No.3 had come
to his home with his son-in-law and, therefore, he acquainted with
his daughter Alpa. Respondent No.3 has also stayed at his residence
with his son-in-law. It is also emphasized that respondent No.3
might have compelled his daughter to marry with him against her wish
and she might have been illegally confined by respondent No.3 in
collusion with respondents No.4 to 7. It is also averred in the
petition that respondent No.3 to 7 are highhanded persons and they
are criminal minded and, therefore, his daughter may be tortured or
assaulted by respondent No.3 and, therefore, she is not safe.
Therefore, it is necessary to produce the corpus – Alpa before
this Court with the help of police authorities. It is also
emphasized that the petitioner had sent complaint by registered post
in the City police station, Surendranagar to respondent No.2 along
with a copy to the District Superintendent of Police, Surendranagar.
However, till today, police have not taken any appropriate steps for
the same. In sum and substance, the averment is made in the petition
that the daughter Alpa is in illegal detention of respondent No.3
and, therefore, prayed for the relief, to which reference has been
made in the earlier paragraph of this order.
This
Court vide order dated 20.09.2010 issued notice to respondents No.1,
2 and 3, which was made returnable on 04.10.2010, on condition that
the petitioner shall deposit Rs.5000/- as cost with the Registry of
this Court within three days. It was also directed to respondent
No.2 to produce the corpus – Alpa, daughter of the petitioner,
who is allegedly in illegal detention of respondent No.3, before
this Court on the returnable date.
Mr.L.B.Dabhi,
learned APP for respondent – State of Gujarat states that
pursuant to the aforesaid direction, Ms.J.N.Sukhanandi, PSI,
Surendranagar city police station has traced out the corpus and
produced the corpus – Alpa before this Court. Corpus –
Alpa is also accompanied by respondent No.3 – Rajesh Babulal
Shingana.
We
have ascertained her wish and willingness and also inquired whether
she is in illegal detention of respondent No.3 or not. In reply to
the same, she has in unequivocal terms stated before us that she has
lawfully performed marriage with respondent No.3 on 8.6.2010 at
Rajkot and the said marriage is also registered before the Registrar
of Marriage, Rajkot. She further states that at present she is happy
in her matrimonial life with respondent No.3. Her husband has also
accompanied her, who is personally present before the Court. She is
residing with him and she continues to reside with him.
So
far as her age is concerned, her date of birth is 7.10.1988.
Therefore, she is aged about 22 years, which is also not disputed by
the petitioner.
In
Gian Devi vs. The Superintendent,
Nari Niketan, Delhi and others, (1976) 3 SCC 234,
Supreme
Court has ruled out that the girl having crossed 18 years of age, is
sui juris and hence no fetters can be placed upon her choice of the
person with whom she is to
stay.
In
view of this, since the corpus – Alpa is sui juris and, hence,
no fetters can be placed upon her choice of the person with whom she
is to stay.
In
view of the aforesaid circumstances and more particularly the
statement made by corpus – Alpa Merambhai Valaniya, it cannot
be said that she is in illegal detention of respondent No.3, as she
is lawfully wedded wife of respondent No.3 and she wants to continue
to reside with. Since she is sui juris, we permit her to go with the
person of her choice.
Seen
in the above context, the instant petition seeking writ of Habeas
Corpus, lacks merit and deserves to be rejected.
At
this stage, Mr.A.B.Gateshaniya, learned advocate for the petitioner,
upon instructions from the petitioner, who is personally present
before this Court, does not press this petition and seeks leave to
withdraw the same.
Mr.L.B.Dabhi,
learned APP, for respondent No.1 and Mr.Pravin Gondaliya, learned
advocate for respondent No.3, have no objection, if the leave as
prayed for is granted.
Hence,
the petition stands rejected as it is not pressed and withdrawn.
This
Court has issued notice on condition that the petitioner shall
deposit an amount of Rs.5000/- with the Registry of this Court. As
per the averment made in the petition, the petitioner was very well
aware about the relationship between her daughter and respondent
No.3 through his son-in-law Arvind. Therefore, said amount is
required to be paid to corpus – Alpa Merambhai Valaniya.
Registry is, therefore, directed to pay the said amount of Rs.5000/-
to corpus Alpa Merambhai Valaniya, daughter of the petitioner,
upon due verification.
Notice
discharged.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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