Rajasthan High Court - Jodhpur
Heera Lal vs State Of Rajasthan ... on 13 July, 2023
Bench: Vijay Bishnoi, Rajendra Prakash Soni
[2023:RJ-JD:21366-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus Petition No. 188/2022
Heera Lal S/o Gopi Lal, Aged About 52 Years, Resident Of
Kunawaria, Kalesria, District Rajsamand, Rajasthan 313331
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Home
Department, Government Of Rajasthan, Secretariat,
Jaipur
2. The Superintendent Of Police, Rajsamand
3. The Station House Officer, Police Station Devgarh, District
Rajsamand
----Respondents
Connected With
D.B. Habeas Corpus Petition No. 60/2022
Rajmal S/o Shri Keshu Ji Lohar, Aged About 42 Years, B/c Lohar,
R/o Kunwariya, Police Station Devgarh, District Rajsamand
(Rajasthan)
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Of Home
Affairs Department, Govt. Of Rajasthan, Jaipur.
2. The Superintendent Of Police, Rajsamand
3. The S.h.o., Police Station Deogarh, District Rajsamand.
4. Ramesh S/o Heera Lal, Through His Natural Guardian
Father Heera Lal S/o Gopi Lal, B/c Salvi, R/o Kunwariya,
Police Station Devgarh, District Rajsamand (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Vikram Singh (DB Habeas Corpus
Petition No.60/2022)
For Respondent(s) : Mr. M. A. Siddiqui, GA-cum-AAG
Mr. A. R. Malkani
Present in person : Mr. Dilip Singh, SHO
Ms. Sumita (MFC 643)
PS Deogarh, Rajsamand
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[2023:RJ-JD:21366-DB] (2 of 7) [HC-188/2022]
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 13/07/2023 D.B. Habeas Corpus Petition No.60/2022 is preferred on behalf of Rajmal alleging that his minor daughter is missing since 31.01.2022 and in relation to that, he lodged an FIR at Police Station, Deogarh, Rajsamand, however, the Police are not making any effort to trace out the corpus. As per the FIR and the documents annexed with it, at the time when the corpus left her house i.e. 31.01.2022, her age was around 13 years.
D.B. Habeas Corpus Petition No.188/2022 is preferred on behalf of Heera Lal alleging that his minor son is missing since 31.01.2022 and in relation to that, he lodged a missing person report at Police Station, Deogarh, District Rajsamand, however, the Police are not making sincere efforts to trace out his minor son. In the petition, it is stated that the age of petitioner's son was around 17 years at the time when he left his house.
Learned AAG has furnished the factual reports in both the habeas corpus petitions from time to time mentioning the efforts carried out by the police in tracing out the said two minor children of both the petitioners.
Ultimately, the Police have traced out the daughter of the petitioner - Rajmal and son of the petitioner - Heera Lal and they produced them before this Court on 13.06.2023.
This Court, while taking into consideration the fact that the daughter of petitioner - Rajmal and the son of petitioner - Heera Lal are minor, has directed the respondents to lodge them in Balika Grah, Rajsamand and Juvenile Justice Home, Rajsamand (Downloaded on 12/11/2023 at 02:36:38 AM) [2023:RJ-JD:21366-DB] (3 of 7) [HC-188/2022] respectively with a further direction to produce them before this Court on 05.07.2023. On 05.07.2023, the corpus Ramesh and corpus 'K' were produced before this Court, however, the matters were ordered to be listed today.
As per the documentary evidence collected by the Police such as school certificate, etc., the date of birth of the corpus Ramesh is 12.07.2005, whereas the date of birth of corpus 'K' is 07.05.2007, as such, the corpus Ramesh has attained majority on 11.07.2023, whereas today the age of the corpus 'K" is around 16 years and 2 months.
We have interacted with the corpus Ramesh and corpus 'K' and both of them have stated that they left their house as per their own free will and have solemnized marriage. The corpus 'K' is carrying a daughter aged one year and one month and both of them have stated that the said daughter is born out of their wedlock.
The petitioner - Heera Lal has stated that though he has filed habeas corpus petition with a prayer to trace out his son corpus Ramesh, but now, he is not interested in having his custody.
Petitioner - Rajmal along with his wife, present in person, have stated that they are ready to take the custody of their daughter along with her daughter, but have specifically stated that they will not treat corpus Ramesh as their sone-in-law.
During the interaction, corpus 'K" has specifically stated that she does not want to go with her parents and wants to live with the corpus - Ramesh only as he is her husband and for taking care of her daughter, she wants to live with him. Corpus Ramesh (Downloaded on 12/11/2023 at 02:36:38 AM) [2023:RJ-JD:21366-DB] (4 of 7) [HC-188/2022] has also stated that he is ready to take the custody of corpus 'K' and their daughter. He has also informed that at present, he is working as a painter in Indore, M.P. and is earning around 15,000/- per month.
Corpus - Ramesh is detained by the Police in relation to the FIR No.47/2022 of Police Station, Deogarh, Rajsamand lodged at the instance of the petitioner - Rajmal, wherein he has alleged that Ramesh has forcefully abducted his minor daughter, corpus 'K"
Though, as per the school record, the age of the corpus 'K' is around 16 years and 2 months as of today, but to ascertain her level of maturity and intelligence, we have asked many questions to her in open Court in the presence of her parents and the advocates and we have found that she is mature and intelligent enough to take her own decisions.
It is also to be noticed that the petitioner - Heera Lal, father of the corpus Ramesh, is not willing to adopt corpus 'K' as his daughter-in-law and the petitioner - Rajmal, father of the corpus 'K', is not ready to adopt corpus Ramesh as his son-in-law. The corpus 'K' is not willing to go with her parents and this leads to a difficult situation where the future of the corpus and her daughter is uncertain. If we handover the custody of corpus 'K' to her parents, there is all possibility that the parents of the corpus 'K' may marry her to some other person in the due course of time and in such circumstances, the future of one year old daughter of the corpus 'K' would be uncertain. The parents of the corpus 'K' has specifically stated before this Court that in any case, they are (Downloaded on 12/11/2023 at 02:36:38 AM) [2023:RJ-JD:21366-DB] (5 of 7) [HC-188/2022] not going to allow the corpus 'K' to live with the corpus Ramesh and will marry her to some other person of their caste.
This Court at Jaipur Bench vide order dated 06.12.2012 passed in D.B. Habeas Corpus Petition No.236/2012 - Prathvi Singh Vs. State of Raj. & Ors. while deciding a habeas corpus petition of a minor has held as under :-
"The paramount consideration before the court would always be the welfare and well being of the girl, whose custody is being sought by the petitioner. In deciding such petitions, the court though is expected to keep in mind the relevant Statutes and the rights flowing therefrom, cannot decide the petition solely by interpreting the legal provisions. The court is required to consider the wishes of the girl also, if the girl is found to be old and matured enough to form an intelligent preference as to with whom she would be more happy"
The Division Bench of this Court vide order dated 07.03.2018 passed in D.B. Habeas Corpus Petition No.162/2017 has held as under :-
"It is pertinent to note that the marriage of a girl below the age of 18 years in contravention of the provisions of Section 5(iii) of the Hindu Marriage Act, 1955 (in shore 'The Act of 1955") is neither void u/s 11 nor voidable u/s 12 of the Act of 1955. Thus, the effect of the marriage, if entered into between the parties, cannot be wiped out for the reason that at the time of marriage, the girl was below the age of 18 years. That apart, under the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, husband is the natural guardian of person of the wife, who is minor. Be that as it may, in the matter of custody of minor child, his overall welfare is of paramount consideration"
Taking into consideration the above facts and circumstances of the case and the above referred judgments, we are of the view that the corpus 'K' would be more happier in the company of (Downloaded on 12/11/2023 at 02:36:38 AM) [2023:RJ-JD:21366-DB] (6 of 7) [HC-188/2022] corpus Ramesh and this may secure the future of her and her daughter.
Now, the problem is that the corpus Ramesh is in detention in relation to the FIR No.47/2022 lodged at Police Station Deogarh, Rajsamand at the instance of the petitioner Rajmal, wherein he has alleged that corpus Ramesh has forcefully abducted his minor daughter 'K'.
We have perused the case diary produced by learned AAG. During the course of the investigation, the Police has recorded statement of the corpus under Section 161 CrPC and has also recorded her statement before the Magistrate under Section 164 CrPC. In both the statements, the corpus has specifically stated that she went with the corpus Ramesh as per her own free will without there being any pressure. The corpus Ramesh and the corpus 'K' have also stated before this Court that they solemnized marriage and out of their wedlock, a baby girl is born around one year back.
In such circumstances, we are of the prima facie opinion that no offence is made out against the corpus Ramesh for which FIR No.47/2020 has been filed against him. If the corpus Ramesh is forced to face the trial in relation to the FIR No.47/2022, there is all possibility that the corpus 'K' will not support the prosecution and in such circumstances, it would be very difficult for the prosecution to prove the charges against the corpus Ramesh. In such circumstances, no purpose will be served in continuing with the investigation into the FIR No.47/2022 of Police Station Deogarh, Rajsamand.
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[2023:RJ-JD:21366-DB] (7 of 7) [HC-188/2022] Hence, the FIR No.47/2022 lodged at Police Station Deogarh, Rajsamand is hereby quashed and set aside.
Taking into consideration the present fact and circumstances of the case and for the purpose of securing the future of the corpus 'K' and her minor daughter and also taking into consideration the fact that the corpus 'K' has solemnized marriage with corpus Ramesh and now, he is major, we deem it appropriate to hand over the custody of the corpus 'K' to corpus Ramesh.
The respondents are directed to get the corpus 'K' and corpus Ramesh released from the Balika Grah, Rajsamand and Juvenile Home, Rajsamand respectively and thereafter to hand over the custody of the corpus 'K' to corpus Ramesh forthwith.
With these observations, these habeas corpus petitions are disposed of.
(RAJENDRA PRAKASH SONI),J (VIJAY BISHNOI),J 28-Ajaysingh/-
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