Vinod Prasad - (1.) THIS habeas corpus petition has been filed by Mohammad Tahseem, father and guardian of Km. Shabnoor (Minor) praying for issuance of a writ, order or direction in the nature of habeas corpus directing respondent Nos. 2 and 3 to produce the victim Km. Shabnoor (Minor) before this Court on a particular date and release her from the illegal custody of respondent Nos. 4 to 8. It has further been prayed that a writ order or direction may be issued to the respondents to hand over the custody of petitioner Km. Shabnoor (Minor) forthwith to her natural guardian Mohammad Tahseem, the petitioner who is her father.
(2.) THE brief facts as are averred in this petition are that Km. Shabnoor is the daughter of Mohammad Tahseem and is a minor. Km. Shabnoor (Minor) was a regular student of Primary Pathshala, Agwanpur, Block Parikshitgarh, district Meerut and had studied there upto class IIIrd. After her admission in class 4th she left going to school. Her date of birth as is mentioned in school leaving certificate is 10.4.1994 which has been filed as Annexure-1 to this petition. According to Mohammad Tahseem also she is a minor. On 12.5.2006 Smt. Kausar and Km. Lubana took away Km. Shabnoor alongwith them and thereafter she was kidnapped by Rizwan, Zaheed, Mehmood, Shaheed, and Wakeel, who all are arrayed as respondents Nos. 4 to 8 in this petition. THE petitioner made an endeavour to lodge a report for the said abduction of his daughter by the aforesaid persons with the police but it yielded no results. At last he approached the Magistrate through an application, under Section 156 (3), Cr. P.C., on 5.6.2006, seeking his direction to the police to register his F.I.R. and investigate the offences. His said application was registered as Misc. Case No. 119 of 2006. On 15.6.2006, Judicial Magistrate IInd Meerut, ordered for registration and investigation of the case on his said application vide Annexure-2 to this petition. Pursuant to the said order a F.I.R. was registered against the accused on 17.6.2006 as crime number C-8 of 2006 for offences under Sections 363, 366, 120B, 504 and 506, I.P.C. at P.S. Parikshitgarh district Meerut vide Annexure-3 to this petition. Even after registration of the F.I.R. the police did not recover the victim Km. Shabnoor who was allegedly kept in illegal confinement by respondents No. 4 to 8. Respondents No. 4 to 8, on the contrary started threatening Mohammad Tahseem, the father, therefore he filed an application to the higher police officials on 28.6.2006 (Annexure-4) but that too was a futile effort. Being disillusioned by the police and their inaction in recovering his daughter the petitioner filed this habeas corpus petition in this Court with the prayers mentioned above. On 18th July, 2006, this Court issued notices to respondents No. 4 to 8 to file counter-affidavit and also directed them to produce Km. Shabnoor, the victim in this Court. Respondents 4 to 8 appeared in this Court through Sri Amit Daga, advocate on 23.8.2006 and prayed time for filing counter-affidavit. However they did not produce Km. Shabnoor on that date before this Court. On their request 11.9.2006 was fixed for the said purposes and the respondents were also directed to produce the victim in this Court on the date so fixed in pursuance of the earlier order passed by this Court. On 11.9.2006, the respondents filed a counter-affidavit and also produced the corpus of Km. Shabnoor in the Court. Her statement was recorded by this Court in open court which forms the part of record of this petition. THE said statement is signed by Shabnoor, the victim. This petition, thereafter was listed on 20.9.2006 when a rejoinder-affidavit was filed and this Court ordered for verification of the school leaving certificate (Annexure-1) which was filed alongwith the petition. THE verification of the said certificate was received to this Court from the Court of C.J.M., Meerut, vide his letter dated 5.10.2006. THE said report is appended with five other papers which include report of police station Parikshitgarh dated 31.10.2006, Certificate by Principal of Primary School Agwanpur, Meerut, dated 3.10.2006, Letter dated 4.10.2006 of the B.S.A., Meerut, addressed to C.J.M., Meerut, Letter dated 3.10.2006 of A.B.S.A., Meerut and photo copy of the school leaving certificate issued by the said school which is Annexure-1 to this petition. THEse reports in six leafs are on record and they directed to form the part of the record of this petition. In the counter-affidavit filed by Shabnoor, the victim and the alleged abductee, on behalf of respondent Nos. 4 to 8 it has been averred by her that she is major aged about 18 years and her date of birth is 2.1.1988. Respondent No. 4, Rizwan is also major aged about 21 years and his date of birth is 5.2.1985. In para 4 of the said counter-affidavit it is averred by her that both of them are illiterate persons and so cannot bring any document relating to their date of birth. It is also averred that both of them are the resident of the same locality. Mohalla Sher Khan, village Agwanpur district Meerut and hence they knew each other since long and were in love with each other. Both of them because of said love decided to live with each other as married couple as per Muslim customs and rituals. For the said purpose both of them left the house in the first week of May, 2006 and went to Delhi where they were advised to perform a court marriage to which they agreed. Then they came to know that for the solemnization of court marriage they require a age certificate. For the said purpose they contacted Dr. Raman Khurana who after conducting x-ray and other necessary tests gave them a age certificate by opining that her age is above 18 years. The said certificate by Dr. Raman Khurana, dated 3.6.2006, is annexed as C.A. 1 to the counter-affidavit. Thereafter the relatives of and all the near and dear ones of both of them advised them to perform nikah as per Muslim customs and rituals. On 3.6.2006, they both contracted nikah in New Delhi which was performed by a kazi namely Maulana Kazi Abdul Salam Kazmi. The photo copy of nikahnama is filed as Annexure C.A.-2 to the counter-affidavit. Since after the marriage the couple is residing happily as husband and wife in Seelampur Colony, New Delhi. It is further averred that father of Shabnoor Mohammad Tahseem knew about the love affair between the two and only when he came to know about the marriage between them that he lodged the F.I.R. mentioned above only to harass the two of them. The registration of the F.I.R. under the direction of the Magistrate against respondent No. 4 and others as has been mentioned above is admitted in the counter-affidavit though it is said that the same was lodged for harassment. It is further the case of respondents that as soon as the deponent Shabnoor came to know about the said F.I.R. she filed an application alongwith an affidavit before the concerned Magistrate on 16.6.2006 (Annexure-C.A. 5) that she is a major and that she had married with respondent No. 4 on her own accord and sweet will and the allegations of the complaint is absolutely baseless. However, her application was rejected by the Magistrate as not maintainable on 16.6.2006 itself. Because of the F.I.R. the police started harassing them and other relatives therefore Shabnoor, Rizwan, Km. Lubna, Smt. Kausar, Zaheed, Mehmood, Shahid, and Wakeel filed Criminal Revision No. 3315 of 2006, Rizwan v. State of U. P. and others and challenged the order dated 15.6.2006 passed by Magistrate for registration and investigation of the case on which notices were issued to respondent No. 2 (Mohammad Tahseem) on 29.6.2006, fixing 11.9.2006 and it was further directed to the police not to harass the revisionists in that revision. The copy of this order is Annexure-C.A. 6 to the counter-affidavit. It is further averred in the counter-affidavit that to avoid any complications the couple applied for a marriage certificate at Meerut which is still pending and they were advised to get a age certificate from C.M.O., Meerut which they obtained on 21.7.2006 vide Annexure-C.A. 7 to the counter-affidavit. With these facts the averments made in the habeas corpus petition are denied with reiteration of the above defence in reply. In the rejoinder-affidavit filed by the petitioner the averments made in the counter-affidavit are denied and the facts mentioned in the writ petition are reiterated.
(3.) I have heard Sri I. K. Chaturvedi, learned counsel for the petitioner in support of this habeas corpus petition and Sri Satish Trivedi, learned senior counsel assisted by Sri Amit Daga advocate on behalf of respondents in opposition. The controversy in this habeas corpus petition lies in a narrow compass as the only two questions which requires determination are that as to whether Shabnoor is major or not? And secondly whether her nikah with respondent No. 4 Rizwan is legal or not? If she is major then according to her statement she had married with respondent No. 4 Rizwan on her own free will and so her nikah with him will be legal and justified according to Muslim law and she is entitle to live with respondent No. 4 Rizwan. If she is not major and at the time of nikah the fact of her age was not in the knowledge of kazi then her nikah, in absence of any proof of her age before kazi, was not in accordance with Muslim law as she was incapable of contracting marriage being minor and hence she cannot be allowed to live with respondent No. 4 against the wishes of her guardian (Father) Mohammad Tahseem, who is her natural and legal guardian. But before containing over the merits of the petition a brief sketch of the relevant laws.;