Allahabad High Court
Smt. Swati And Another vs State Of U.P. And 3 Others on 13 February, 2020
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- HABEAS CORPUS WRIT PETITION No. - 904 of 2019 Petitioner :- Smt. Swati And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gaurav Singh Counsel for Respondent :- G.A.,Pramod Kumar Sinha Hon'ble Neeraj Tiwari,J.
Affidavit filed today on behalf of petitioners is taken on record.
Heard Sri Gaurav Singh, learned counsel for the petitioners, Sri P.K. Shukla, Advocate holding brief of Sri P.K. Sinha, learned counsel for the respondent no.4 and learned AGA for the State-respondents.
Present petition has been filed by the petitioner no.2 for producing the corpus petitioner no.1, namely, Swati.
Learned counsel for the petitioners submitted that petitioner no.2 is claiming the petitioner no.1-Swati to be his wife. In support of that, he has also annexed the marriage certificate dated 7.5.2019 as Annexure 3 to the writ petition. Earlier petitioners have approached this Court by filing Writ-C No.9687 of 2019 (Swati and Another Vs. State of U.P. and 3 others) in which this Court has granted interim protection to petitioners treating them as major.
Notice was issued and counter affidavit has also been filed by the respondent no.4. In the counter affidavit, it is stated that petitioner no.2 is already married with Smt. Vimla Devi and out of their wedlock three children were born. The age of first daughter of petitioner no.2 is almost equal to corpus-Smt. Swati and by concealing the material facts, present habeas corpus petition has been filed. Earlier in Writ-C No.9687 of 2019, he has also concealed so many facts about his first marriage as well as having three children.
The Court vide order dated 20.1.2020 directed that case shall be listed on 22.2.2020 alongwith record of Writ-C No. 9687 of 2019 (Swati and another Vs. State of U.P. and others). The same was also produced before this Court. After going through the record, it was found that in the joint affidavit filed by the petitioner no.1 and petitioner no.2, there is no disclosure about the first marriage of petitioner no.2 as well as having three children. By concealing the material facts, order dated 15.3.2019 has been obtained from this Court in Writ-C No.9687 of 2019.
Considering this fact, on 27.1.2020, Court has passed the following order:-
"Heard learned counsel for the petitioners, Sri Pramod Kumar Sinha, learned counsel for the respondent no.4 and learned AGA for the State-respondents.
On the last occasion, Mr. P.K. Sinha, learned counsel for the respondent no.4 informed that earlier petitioner had obtained interim protection vide order dated 15.3.2019 in Writ-C No.9687 of 2019 (Swati and another Vs. State of U.P. and 3 others) by concealing about his first marriage as well as having three children.
The Court vide order dated 20.1.2020 summoned the record of Writ -C No.9687 of 2019. By perusal of same, it is absolutely clear that petitioner has not disclosed about his first marriage as well as having three children, which prima faice amounts to perjury.
Learned counsel for the petitioner prays for and is granted one week time to file affidavit as to why proceeding under Section 340 of Cr.P.C. may not be initiated against him.
Put up this case on 4.2.2020 in the additional cause list alongwith record of Writ-C No.9687 of 2019. On the next date, petitioner shall remain present before this Court."
On 4.2.2020, petitioner no.2 was granted one more opportunity to appear before the Court and file affidavit as directed by this Court vide order dated 27.1.2020.
Today, Mr. Gaurav Singh, learned counsel for the petitioners has filed affidavit on behalf of petitioner no.2 and submitted that petitioner no.2 is present in the Court and when Court directed to Mr. Gaurav Singh, learned counsel for the petitioner to produce petitioner no.2, he expresses his inability to produce petitioner no.2 and submitted that just five minutes ago he was present before this Court, but presently he escaped from the Court.
Apart from that, petitioner no.1-corpus Swati is present before this court and she has been duly identified by Sri Pramod Kumar Sinha, learned counsel for the respondent no.4.
On query being raised by this Court, she stated that she is minor and in support of that, she placed reliance upon her High School Certificate, in which her date of birth is 21.3.2004. She further stated that she never married with petitioner no.2 and in fact she was kidnapped by him for which FIR dated 30.3.2019 has been lodged under Sections 363, 366 IPC. She was given custody to her father vide order dated 15.5.2019 passed by Additional & District Sessions Judge, Rampur. The statement of the corpus has been recorded separately in the order sheet of this case.
In view of above, corpus Swati is minor and her alleged marriage is void ab initio and further she wants to live with her father, therefore, this Court could not pass any order adverse to that. Hence, she is given into the custody of her father as per her wishes.
So far as petitioner no.2 is concerned, it is apparently clear that he has obtained order from this Court by giving false affidavit concealing the facts about his first marriage and three children and even today in his affidavit he has not given reply to the queries raised by the Court vide order dated 27.1.2020 and also escaped from the Court proceedings, therefore, Court would have no option, but to direct the Registrar Civil/Criminal to lodge an FIR against the petitioner no.2 within a week from today. The S.S.P., Allahabad/S.P. Rampur is directed to take action against the petitioner no.2 in accordance with law.
Office is directed to transmit the copy of this order to S.S.P., Allahabad/S.P. Rampur for compliance forthwith.
With the aforesaid observations, the writ petition is disposed of.
Amount so deposited by petitioner no.2 shall be released in favour of petitioner no.1 after submission of proper application through counsel.
Order Date :- 13.2.2020 Junaid