PRAKASH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Habeas Corpus petition has been filed by the petitioner Prakash Gwalera who claims to be the husband of Rachna, the daughter of Shri Phool Chand Kalal, respondent No. 3. In this writ petition, the petitioner has alleged that Rachna is being illegally detained under the order dated 9th October, 1985 passed by the Addl. Munsiff and Judicial Magistrate No. 1, Kota (South), respondent No. 2, and it has been prayed that Rachna be ordered to be set free and the order dated 9th October, 1985 passed by respondent No. 2 be quashed.

(2.) ACCORDING to the averments contained in the writ petition the said Rachna is 19 years of age and that she left the house of her father on her own accord on 6th September, 1985 and that the petitioner and Rachna were married according to the Hindu rites in the Arya Samaj at Ajmer on 16th Sept., 1985. In the petition it has also been stated that on 8th September, 1985 respondent No. 3 lodged a report at police station Kotwali Kota stating that Rachna has been kidnapped by the petitioner and on the basis of the said report a case under Sections 363/366 IPC was registered at Police Station Kotwali, Kota. The petitioner has further alleged that apprehending his arrest in the said case, the petitioner moved a bail application before this Court under Section 438 Cr. PC and in that bail application this court was pleased to order that Rachna should be produced by the petitioner in this Court on 7th October, 1985 and that on 7th October, 1985, the matter was not listed in the Court and the petitioner was directed to produce Rachna in the Court on 8th October, 1985 The petitioner has further alleged that on 8th October, 1985, the SHO Police Station Vidhayak -puri, Jaipur and Shri Shekhawat, S.I. Kotwali, Kota who had come to Jaipur in connection with this case, arrested the petitioner and his father Durgalal and also recovered Rachna and that the petitioner as well as Rachna were taken to Kota and Rachna was produced before respondent No. 2 on 9th October, 1985 and since Rachna insisted before respondent No. 2 that she would go with the petitioner, respondent No. 2 passed an order 9th October, 1985 directing that Rachna be sent to Nari Niketan, Kota and that in pursuance of the said order of respondent No. 2, Rachna is being detained in Nari Niketan against her will.

(3.) THE writ petition has been opposed by the respondent No. 3 as well as the State. Respondent No. 3 has filed an application for being given custody of Rachna and in the said petition he has alleged that Rachna was born on 19th November, 1968 and is a minor and that she was kidnapped by the petitioner from rightful guardianship of respondent No. 3. In the said application, it has been stated that the petitioner is already married to one Smt. Binoo alias Guddi five years back and the said marriage is still subsisting and that the alleged marriage between the petitioner and Rachna is illegal and void ab initio. In the said application it has also been stated that the petitioner is a man of bad character and there are several criminal cases pending against him and that the petitioner had kidnapped Rachna with a view to extort money from respondent No. 3. Along with the said application the respondent No. 3 has filed a copy of the Birth Certificate issued by the Registrar, Birth and Deaths, Municipal Council, Kota as well as the Birth Certificate issued by the Medical Officer, Incharge, Jay Kay Lon Zanana Hospital, Kota and the affidavit of Smt. Bhagwati Devi, wife of respondent No. 3, in proof of the age of Rachna. Respondent No. 3 has also filed affidavit of Smt. Binoo alias Guddi in support of the allegation that the petitioner was married to Smt. Binoo alias Guddi on 12th February 1981 and the said marriage is still subsisting. In addition, respondent No. 3 has also filed the certificate about the cases pending against the petitioner, which has been issued by the SHO Police station, Gumanpura, Kota, on 29th September, 1985 and which shows that case No. 75/28 -4 -1979 under Sections 432, 147, 149, 323 IPC and case No. 321/83 under Section 379 IPC have been registered against the petitioner and in case No. 41/110 Cr.PC challan was filed in the court on 16th November, 1984 and the Report No. 823/16 -11 -83 under Section 323 IPC has been registered and case No. 97/83 under Sections 353, 451, 427 IPC has been registered at police station, Nayapura and a warrant has been issued against the petitioner by the court.