- (1.) VINOD Prasad, J. This habeas corpus Petition has been filed by Manoj Kumar Gupta son of Sri Vijay Kumar Gupta, Resident of Village and Post Haldi, P. S. Haldi, District Ballia, presently residing at Malli Bazar, Police Station Malli Bazar, District Namachi, South Sikkirn seeking the following reliefs: " (a) Issue a writ, order or direction in the nature of habeas corpus directing respondent authority to produce the respondent No. 6 Smt. Asha Gupta in Court and said the respondent No. 6 of liberty forthwith. (b) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the circumstances of the case. (c) Award the cost of the petition. "
(2.) THE petitioner was directed to deposit Rs. 5,000/- (Rupees five thousand) for summoning of respondent No. 6, which he had already deposited vide original tender receipt dated 25-9-2006. On 26- 7-2006 this Court had issued notices to respondent No. 5 who has appeared in the Court and has filed a counter-affidavit through Sri Sudhir Kumar Singh, Advocate on his behalf as well on behalf of respondent No. 6. The averments, which have been made in this habeas corpus petition, are that Smt. Asha Gupta, respondent No. 6 (wrongly described as respondent No. 7) is the legally wedded wife of the petitioner Manoj Kumar Gupta and their marriage was solemnized on 5-5-2005 according to Hindu customs and rights at Malli Bazar South Sikkim. Smt. Asha Gupta, respondent No. 6 after the marriage went alongwith the petitioner and started living with him as his wife with full pleasure and love. Father of Smt. Asha Gupta, namely, Ashok Kumar Gupta, respondent No. 5 brought back Smt. Asha Gupta, respondent No. 6 to his house at Ballia on the pretext of her serious illness. The petitioner approached Ashok Kumar Gupta many times to send Smt. Asha Gupta but respondent No. 5 all the times made excuses and did not send her. On 11-6-2006 Vijay Kumar Gupta, father of the petitioner alongwith other respectable persons requested respondent No. 5 Ashok Kumar Gupta to send Asha Gupta to her husband on which a condition was put forth by Ashok Kumar Gupta respondent No. 5 that if he (Vijay Kumar Gupta) deposits Rs. ten lacs in the name of his daughter Smt. Asha Gupta and transfer some portion of his land in her name only then she will be sent. It is further averred in the petition that the petitioner are four brothers and he is the eldest amongst them and therefore, the land cannot be transferred in the name of Smt. Asha Gupta. It is also averred that Ashok Kumar Gupta respondent No. 5 is pressurizing the petitioner to come and live at Ballia but that is not possible as the petitioner's birth and all educational had taken place in Sikkim and only there he can arrange for a job for him as he is an en-employed youth. He will face great hardship in residing at Ballia as he is not accustomed to social and cultural life of Ballia. The further averment is that petitioner had a very sweet relation with respondent No. 6 and from their marital relationship, Smt. Asha Gupta had become pregnant also. The further averment of the petitioner is that Smt. Asha Gupta is ready to go with the petitioner to live with him in Malli Bazar, South Sikkim but her father Ashok Kumar Gupta is an impediment in such an effort. It is further mentioned that respondent No. 5 is pressurizing respondent No. 6 to get aborted and in that event the petitioner will loose the first child. When all the efforts made by the petitioner proved futile to bring back his wife, he approached District Authorities at Ballia for resolving the matter and had also sent letters and representations to the District Magistrate, and Superintendent of Police Ballia on 26-6-2006 (Annexure Nos. 1 and 2 ). The District Administration did not help the petitioner. It is further averred that respondent No. 5 has no right to restrain and detain illegally his wife Smt. Asha Gupta respondent No. 6 and respondent No. 5 is acting illegally and unconstitutionally. The petitioner has averred that the rights guaranteed to him and to his wife under the Constitution are being infringed and curtailed by respondent No. 5. He had further averred that respondent authorities are also acting illegally, arbitrarily and mala fidely. Since the petitioner did not have any other alternative remedy he filed the present habeas corpus petition in this Court. Ashok Kumar Gupta respondent No. 5 had filed a counter-affidavit on his behalf as well as on behalf of respondent No. 6 Smt. Asha Gupta, his daughter wherein he has stated that the petitioner is an accused in Crime No. 6/2006, under Sections 494, 495, 498 I. P. C. , Police Station Kotwali, District Ballia as at the time of marriage with respondent No. 6 the petitioner was already married to one lady Teena Gurang daughter of Padam Bahadur Gurang, resident of Dara Gaon, Post Tadang Bazar, District Gangtok, East Sikkim. He has further alleged that in the marriage he has given dowry of Rs. One lac. He had filed copy of the F. I. R. of Crime No. 6/2006 of Police Station Kotwali, District Ballia as Annexure No. 1. He had also filed the marriage certificate of the petitioner alongwith Teena Gurang as Annexure No. 2, to the counter-affidavit which indicates that Manoj Kumar Gupta, the petitioner was married with Teena Gurang on 25-2-2005 before Tandra Mittra, Marriage Officer, Village Balakova. Respondent No. 5 also filed the marriage card of the marriage of the petitioner with his daughter as Annexure No. 3, which indicates that the marriage between petitioner and respondent No. 6 was solemnized at Ballia. The said marriage invitation card is from the petitioner's side. He had also filed the letter written by respondent No. 6 on 13-6-2005 which indicate that the petitioner's family were demanding a dowry of Rs. one lac and respondent No. 6 was also assaulted for the same and she had showed the danger and apprehension to her life. The said letter is Annexure No. 4 to the counter-affidavit.
(3.) UNDER the orders of this Court respondent No. 6 Asha Gupta had appeared before this Court on 30- 10-2006 and her statement was recorded in open Court. In her statement she had clearly stated that she is graduate from S. C. College Ballia. She had married with the petitioner Manoj Kumar Gupta, who is present in Court. At the time of marriage neither her nor her family members were informed that Manoj Kumar Gupta was already married. Her marriage was solemnized on 5-5-2005 at Ballia. Six days after the marriage she came to know that the petitioner was already married. She does not want to live with the petitioner as he was already married. Manoj Kumar Gupta, the petitioner also accepted the fact, on enquiry being made by the Court that he had married with Teena Gurang in the month of February 2006 and the same year in the month of May 2005 he had marriage with respondent No. 6 Smt. Asha Gupta. He had admitted that he had not sought any divorce from Teena Gurang and she had left the marital company of the petitioner and never came back. There is nothing on record to suggest or even to indicate nor there is any pleading that any divorce, customary or otherwise, took place between petitioner Manoj Kumar Gupta and his first wife Teena Gurang.;