Gujarat High Court
Sanjay Takhabhai Makwana vs State Of Gujarat on 29 October, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, Nirzar S. Desai
R/SCR.A/6483/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6483 of 2020
==========================================================
SANJAY TAKHABHAI MAKWANA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
KARTIKKUMAR G BAROT(9453) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR MANAN MEHTA, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 28/29/10/2020
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI )
1. This is a petition preferred under Article 226 read with Articles 14,19 and 21 of the Constitution of India seeking writ of habeas corpus or any other appropriate writ on the ground that the petitioner and daughter of respondents No.4 to 6 were fond of each other and then they chose to marry on 23.01.2020. The certificate of registration of marriage is also produced.
2. Respondent No.6 mother of the corpus had filed Page 1 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER earlier petition being Special Criminal Application No.1100 of 2020 for production of daughter on 12.02.2020. on 20.03.2020, the petitioner and his wife both were presented before the Court and at that stage, the corpus had expressed her desire to join the present petitioner, who is her husband. This court, therefore, passed the following order;
"3. Today the corpus is before us with the man she has married. It appears that certificate of registration of the marriage is of dated 19.02.2020. Both the corpus and her husband presented themselves before the police authority who brought both of them before this Court.
4. The parents of the corpus with the learned advocate representing them have objected to the marriage on the ground of their relationship being of parental aunt and nephew and marriage which is a sapindas marriage of third generation. It is also urged before us that under Section 5 read with Section 11 of the Hindu Marriage Act, 1955, such sapinda marriage is a nullity and can be termed as void marriage, unless the customs and usage governing them permit such marriage between the two, who are otherwise within the degrees of prohibited relationship. However, in their caste, it is not permissible as stated by parents of the corpus. 4.1 Learned advocate Mr.Prajapati for the petitioner has also made grievance that father of Respondent No.4 is threatening the family of the petitioner and urged that due protection be given to the family of the petitioner. Let, necessary application / complaint be lodged before Hebatpur Police Station, which shall be look into by the concerned police authority promptly.
5. We have spoken to the corpus and made her understand at length. She insists on joining Page 2 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER Sanjay, the person whom she has married. She is also aware that he was earlier married twice and divorced both his wives. Presently, they have no fixed place of abode to stay. Considering the wish of corpus, who is 25 years of age, she is free to join the person she has chosen to marry despite prohibited degree and relationship, prohibiting such marriage between sapindas.
6. Parents will be at liberty to take necessary action under the law as it is not feasible for the Court to adjudicate upon such issues in the present petition and it is not the scope of the present petition."
3. It is the grievance on the part of the petitioner that on 05.09.2020 respondents No.4 to 6 went to his house and they met the corpus, their daughter and had expressed that they had no objection to the said marriage. They also assured to arrange the marriage function and accordingly, took their daughter with them. It is the grievance of his that thereafter they did not permit any contact of his with his wife.
4. He expressed serious apprehension that she has been confined and illegally detained and her life is in danger. He also gave an application on 12.10.2020 to respondents No.2 and 3 to rescue his wife, no heed was paid and hence, alleging cruelty and imminent danger to the life of his wife, he Page 3 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER approached this Court to free her from unlawful custody of her own parents.
5. We have heard learned advocate Mr. Kartikkumar Barot for the applicant and Mr. Manan Mehta, learned Additional Public Prosecutor for the respondents, who, on advanced notice, had ensured to inquire from the police officer in charge of the station.
6. Mr. Barot, learned advocate had expressed the need for immediately take up the the matter relying on the invitation card which showed her marriage to have been fixed on 29.10.2020 at 11:15 a.m. Other functions have already been started and he also urged that she is the legally wedded wife and cannot be forced to be married elsewhere.
7. We permitted learned Additional Public Prosecutor to make an urgent inquiry and, accordingly, the concerned police officer had visited the residence of respondents No.4 to 6 and permission was sought Page 4 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER for the corpus to be produced before us. Noticing the emergency from the marriage card and what has been expressed by learned advocate Mr. Barot for the applicant, and confirmed by learned Additional Public Prosecutor, we had permitted such production beyond the Court hours, as housing the corpus anywhere in these circumstances was not deemed appropriate.
8. We had asked for production of the corpus through Suigam in presence of Mr. Harshad Mistry, learned Senior Civil Judge, Deodar and the production of the corpus was made through the video conferencing accordingly.
9. In our conversation with the corpus, she stated clearly and without any hesitation that she no longer desires to join the petitioner. She emphatically urged that the petitioner himself had permitted her to join her parents and agreed to put an end to the relationship, as theirs was a sapinda marriage within the prohibited degree and she Page 5 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER realized such mistake of theirs . She also added that after a careful deliberation, this decision was taken and she had joined her parents and now is convinced about what the parents had explained to her and, she is ready to get married elsewhere.
10. When we inquired from her papers of customary divorce or any decree of divorce, she was clueless. The mother of the corpus, who also was the petitioner earlier, namely, Jasiben Ramabhai Kakrejia also remained present and she also produced the paper, which is signed by the father of the present petitioner Sanjay and her husband, Ramabhai Kakrejia, and they both agreed to put an end to the relationship of Sanjay with the corpus, without there being any signature of either the petitioner or the corpus herself. She also explained that through their lawyer learned advocate Mr. Prajapati, a petition has been moved to formally bring an end to the relationship of both of them before the Family Court, but due to lockdown, she does not know as to whether anything further has Page 6 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021 R/SCR.A/6483/2020 ORDER happened, but she agrees that there is no decree obtained from the Family Court. Even otherwise, there could not have been any decree as proceedings before the Family court would not have been undertaken during the Pandemic due to COVID-19 viruses. Her only plea is that the marriage of three daughters of theirs has been arranged on account of the incident that has happened where one of the daughters married within prohibited degrees of relationship and because of that, the marriage ceremonies be permitted to take place tomorrow.
11. The petitioner also joined this Court through telephone of learned advocate Mr. Barot and he has been explained the wish of the corpus and the fact that she is not detained against her wish and will nor is the function organized by the parents imposing their will upon her. However, it is further explained to him that if he has other remedies available, he can always take recourse to the same so far as the rights relating to are concerned. Page 7 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021
R/SCR.A/6483/2020 ORDER
12. Having noticed that the corpus is not under any threat or coercion, nor is she unlawfully confined or detained, the apprehension of the petitioner being misplaced, this writ petition, for the purpose of seeking production of the corpus allegedly unlawfully detained, would not be required to be continued.
13. We do notice that the corpus is still a legally wedded wife of the petitioner, as mentioned in our earlier order, their relationship is within the prohibited degree of relationship and the objections of the parents from the beginning to this marriage is on the ground of this being a sapinda marriage of third generation. The parties, have since chosen to go to the Family Court, and such sapinda marriage being a nullity can be termed as void marriage between the two, within the degree of prohibited relationship, unless of course, the unbroken chain of custom permits the same, on adducement of such proof.And yet, the decree of the competent court is still to come on the issue.
Page 8 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021
R/SCR.A/6483/2020 ORDER
14. It would be in the interest of all concerned to get this entire aspect cleared factually and legally for better future of the corpus and the petitioner both. Therefore, we have explained this aspect to the mother of the corpus and corpus herself and the mother has also agreed to give an undertaking to the effect that they shall take care of this aspect of law and would act in the best interest of the corpus so as not to cause any further legal complications in the near future.
15. We acknowledge the services rendered by Mr. Mistry, learned Civil Judge, Tharad very promptly beyond Court hours and we also appreciate positive steps taken without any loss of time by the Police Officer Mr.M.B. Devda from Tharad police station in bringing corpus before us in the extraordinary circumstances.
16. Accordingly, the petition is being disposed of. Page 9 of 10 Downloaded on : Sun Aug 22 06:57:12 IST 2021
R/SCR.A/6483/2020 ORDER
(MS. SONIA GOKANI, J. )
(NIRZAR S. DESAI,J)
MISHRA AMIT V./sudhir
Page 10 of 10
Downloaded on : Sun Aug 22 06:57:12 IST 2021