Madhya Pradesh High Court
Latori Chamar vs State Of M.P. And Ors. on 10 January, 2007
Author: Dipak Misra
Bench: Dipak Misra, S.C. Sinho
JUDGMENT Dipak Misra, J.
1. The petitioner, the father of Tejabai, a minor, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ in the nature of 'habeas corpus' for production of the said Tejabai in Court and for grant of exemplary compensation for her detention by the respondent No. 5, Moolchand, in an illegal manner.
2. The facts which are necessitous to be exposited for adjudication of the case are that the petitioner is an illiterate villager of Village, Khakariya, Tehsil, Deori in the District of Sagar and belongs to Scheduled Caste. The respondent No. 6, Nirmal Panda, who is engaged in curing people by alternative method of treatment by reading 'Mantras' treated Tejabai who was suffering from headache and on the date of such visit he impressed upon the wife of the petitioner that Tejabai should marry Moolchand, son of Hariruia Chambar otherwise the family will pave on the path of ruination but the petitioner and his wife did not accede to such a suggestion, as a consequence of which on 31-7-2006 in the midnight the daughter of the petitioner was abducted by the respondent Nos. 5 and 6 with the help of other co-accused persons. As set forth the petitioner lodged a FIR at the Police Station, Maharajpur, Tehsil, Deori in quite promptitude and orally informed the police that the respondent No. 5, Moolchand and respondent No. 6, Nirmal Panda had colluded and abducted his minor daughter aged about 16 years and thereafter a written complaint was given in that regard. Despite receipt of the complaint by the petitioner no action was taken against the private respondents which compelled the petitioner to submit a written complaint to the Deputy Inspector General of Police, Sagar, Superintendent of Police, Sagar and the Station House Officer, Manila Thana, Gopalganj, Sagar on 6-8-2006. Despite such action being taken by the petitioner, sphinx like silence was maintained by the authorities which resulted in the agonised suffering of the petitioner.
3. It is contended in the writ petition that though the time rolled, no action was taken and the said inaction emboldened the respondent Nos. 5 and 6 to threaten the petitioner that he would visit with dire consequences. Under these circumstances the petitioner was compelled to approach this Court for the reliefs that have been mentioned hereinabove. It is urged in the petition that the respondents are influential persons having a political base and, therefore, the authorities have become oblivious of the allegations made against them and have not turned a Nelson's eye to the complaint made by the petitioner.
4. A counter affidavit has been filed by the respondents No. 1, 2 and 4 contending, inter alia, that they have instituted a Crime No. 104/06 on the basis of the FIR lodged by the petitioner and they have taken all steps to rescue Tejabai. It was put forth that they have affixed photographs and pamphlets on the train and pasted the same behind buses and other conspicuous places. Be it noted, an additional reply was filed by the respondent No. 4 contending, inter alia, that In the investigation it was found out that Moolchand, respondent No. 5, had abducted the daughter of the petitioner and on that basis a criminal case has been registered and steps are being (sic) had eloped because of the relationship that had been established between them and hence, the investigating agency is not getting any cooperation from them and as they must be living somewhere out of the State as husband and wife which has made it to find out their whereabouts.
5. This Court on 7-11-2006 while entertaining the petition had directed the respondent Nos. 1 to 4 to make all attempts to produce the said Tejabai before this Court. Thereafter a direction was issued to make news publication along with photograph of Tejabai and to send her photographs to various police stations so that she can be made available before the respondent Nos. 1 to 4 and ultimately produce before this Court.
6. It is worth-noting that in the meantime, the respondent No. 6, Nirmal Panda was produced before this Court. An affidavit on behalf of the respondent Nos. 1 to 4 was filed stating that action has been taken against the respondent No. 5. The respondent No. 6 was personally present before this Court. He has stated that he has nothing to do with the case and as he belongs to poor strata of the society, he must be given legal aid. On such a request being made Mr. Greeshm Jain, learned Counsel was engaged on behalf of the State Legal Services Authority.
7. On 2-1-2007 Tejbai was produced before this Court and the learned Additional Advocate General for the State made a statement that the respondent No. 5, Moolchand, has been taken into custody pursuant to registration of crime against him for the offences punishable under Sections 363 and 366 of the Indian Penal Code. Be it placed on record, an affidavit was filed on behalf of the respondent No. 6 to which we shall revert to at a later stage.
8. Tejabai, the daughter of the petitioner after being recovered was kept in the "Alp Nari Niketan" at Jabalpur. She expressed her opinion in an unequivocal manner that she does not intend to go with her parents. On that day without expressing any opinion, it was directed that Tejabai be kept in the "Alp Nari Niketan" till 4-1-2007. The learned Additional Advocate General for the State agreed to make arrangement for her stay in the said Nari Niketan which is a shelter home run by the State Government.
9. The matter was finally heard and on that day i.e. 4-1-2007 on a query being made Tejabai submitted that her date of birth is 30-1-1989. She refused in a categorical manner to go back with her lather. It was further stated by her that her marriage with Moolchand has been solemnised and in the wedlock a female child has been born. She insisted that she would like to stay with the parents of Moolchand. The respondent No. 5, Moolchand, who was produced in custody stated about the marriage and submitted that he would keep Tejabai and the child with him. Parents of Moolchand, namely, Hariram Chamar and Shayamabai submitted that they would keep Tejabai with them. At that juncture, Mr. Greeshm Jain, learned Counsel for the respondent No. 6 invited our attention to the affidavit filed by the said respondent wherein certain allegations have been made against one Leeladhar Yadav. This Court keeping in view the obtaining factual matrix and the totality of the circumstances directed that Tejabai be retained, in the 'Alp Nari Niketan', the shelter home,
10. Before we advert to other facets it is apposite to advert to the affidavit filed by the respondent No. 6. It is contended that the family of the petitioner and that of the respondent No. 6 reside in close proximity and there had been no cavil between them. At that juncture, everyone in the village had knowledge that Tejabai was in love with Moolchand and Moolchand had good relationship with the respondent No, 6 and all this was known to the petitioner. The respondent No. 6 has disputed about his having any kind of political influence and has stated that he is making his livelihood as a labourer. Allegations have been made against one Leeladhar Yadav son of Roopchand Yadav, Village, Samnapur, Tehsil, Deori, District, Sagar. The said Leeladhar Yadav describing himself as a counsel had deceived many persons and had influenced the petitioner to implead the said respondent as a party, despite the fact that he has nothing to do in this litigation and at no point of time he had pretended/persuaded Tejabai. It has been further asserted that the said Leeladhar Yadav has taken Rs. 3,500/- from him to effect a compromise so that he would be unaffected any way by the present writ petition. It is urged that certain signatures were taken on blank papers to effect the compromise.
11. We have heard Mr. Rajmani Singraul, learned Counsel for the petitioner, Mr. T. S. Ruprah, learned Additional Advocate General and Mr. P. N. Dubey, learned Deputy Advocate General for the State and Mr. Greeshm Jain, learned Counsel for the respondent No. 6.
12. It is submitted by Mr. Rajmani Singraul, learned Counsel for the petitioner that Tejabai may be handed over to the custody of her parents, they being the natural guardian and requested that the criminal proceeding that has been instituted against the respondent No. 5, Moolchand should proceed and continue till its logical end.
13. Mr. T. S. Ruprah, learned Additional Advocate General and Mr. P. N. Dubey, learned Deputy Advocate General for the State, per contra, submitted that criminal proceeding that has been instituted against the respondents No. 5 may continue but the interest of Tejabai should be best protected if she is allowed to stay with the parents of Moolchand, as they have agreed to keep her and showed their affection and concern.
14. Mr. Greeshm Jain, learned Counsel for the respondent No. 6 submitted that the petitioner should be directed to pay exemplary compensation to the said respondent as he has been implicated in the writ petition without any rhyme and reason and further a direction should be issued to take action against Liladhar Yadav, who had deceived him and taken a sum of Rs. 3,500/- to effect a compromise between the petitioner and him so that he would be free from the present litigation.
15. First we shall deal with the facet relating to continuance of criminal proceeding against the respondent No. 5, Moolchand. We have been apprised at the Bar that a crime was registered against the respondent No. 5 and offence punishable under Sections 363 and 366 of the Indian Penal Code was instituted against him and later on Section 376, I.P.C. was added. The learned Additional Advocate General for the State submitted that the offence punishable under Section 376, I.P.C. might not have been justifiably added as much as a scrutiny of the date of birth of Tejabai it appears that the same is 30-1-1989. This Court while exercising its jurisdiction under Article 226 of the Constitution of India should not enter into the said debate. We have been apprised that investigation is in progress. It would be open to the investigating agency to carry out such an investigation as permissible in law. Mr. Ruprah, learned Additional Advocate General for the State assured this Court that investigation shall be completed within 10 days hence. We only so record.
16. The second aspect that requires to be addressed is the interest of Tejabai and the child born to her. As admitted by Tejabai and Moolchand the child has been born to them because of their relationship. There is no disputation. In course of hearing, be it noted, the petitioner has stated that Tejabai had taken some jewellery and clothes with her. He has admitted before this Court that the value of the same would not exceed Rs. 2,000/-. The parents of Moolchand have submitted that they would keep Tejabai with them as their son, Moolchand has married to her and they would take care of the child born in the wedlock, as they stand committed to the relationship that has been established by their son with Tejabai. It is submitted by Mr. Ruprah that Moolchand has shown immense loyalty, a great attribute which has arisen spontaneously and his parents have realized that the voyage of love of their son is better and sweeter than being a Captain in the Army. The learned Additional Advocate General submitted that in all fairness Tejabai should be allowed to stay with the parents of Moolchand.
17. In the case of Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. in a 'habeas corpus' petition when the question of interest of a minor child arose their Lordships have expressed the view as under:
8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would be best serve the interest and welfare of the minor.
18. In Idrish Mohd. v. Memam and Anr. the Apex Court while dealing with the custody of children has held as under:
4. From the documents filed by the appellant before us, the genuineness of which has not been disputed by the State by filing any counter-affidavit, we find that she has attained majority by now. She cannot, therefore, be kept detained against her wishes. The impugned order of the High Court also indicates that she is willing to go only with the appellant. We accordingly allow this appeal and direct the authorities of Nari Niketan, Karnal to release respondent 1 forthwith.
19. In Sangeetha L. v. The Commissioner of Police, Kochi and Ors. AIR 2002 Ker 16 in paragraph 21 it has been held as under:
21. It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children. Reliance may be placed on the decisions, Rosy Jacob v. Jacob A. Chakramakkal . Jai Prakash Khadria v. Shyam Sunder Agarwalla and R. V. Srinath Prasad v. Nandamuri Jayakrishna 2001 AIR SCW 1033. Some of the cases are coming under the Guardians and Wards Act. Courts have reiterated that paramount consideration is the welfare of the children and Court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances.
20. We are conscious, Tejabai has not yet become a major. She is going to become major soon. Her father has raised enormous complaint that she had gone away from the house with jewellery and clothes worth Rs. 2,000/- approximately. She has been blessed with a child. A child cannot be denied protection as enshrined under Article 21 of the Constitution of India. She has to be allowed to live in an acceptable dignified atmosphere. She cannot be permitted to live in an atmosphere which is alien and the person living therein would not like to have her. Not for nothing, it has been said that when a child is born face of human race glows with lustre. This Court cannot be oblivious of the fact the child born to Tejabai and the respondent No. 5 should not be compelled to live, because of her innocence and silence in a way, in an unacceptable atmosphere, for every human being a child or a grown-up has a desire to be wanted. The said privilege cannot be denied to her.
21. In view of our foregoing analysis, we are inclined to direct that Tejabai should be released from 'Alp Nari Niketan', Jabalpur and be allowed to go to the parents of the respondent No. 5. The Superintendent of Jabalpur shall make necessary arrangement for her safety travel to the home of the respondent No. 5.
22. As far as allegations against Leeladhar Yadav is concerned, the affidavit preferred by the respondent No. 6 before this Court should be treated as an FIR by the Superintendent of Police, Sagar and investigation be made in accordance with law.
23. The writ petition is accordingly disposed of.