- (1.) VIRENDRA Saran, J. The habeas cor pus petition at hand has been filed by Smt. Kusum through her alleged husband Amir Khan alias Raju praying that the petitioner be set at liberty. Presently the petitioner alongwith her infant child is confined in the Womens' Protective Home, Lucknow.
(2.) FROM the narration in the habeas corpus petition, it is emerges that the petitioner Smt. Kusum is a major aged about 20 years. She of her free will married Amir Khan alias Raju in April 1994. The couple enjoyed their married life for about six months, but Ram Dularey who is step father of the petitioner (respondent No. 3) lodged report under Sections 363/366/376, IPC at police station Aliganj, Lucknow and it was registered as crime No. 270 of 1994. On the strength of the report, on 30-9-1994 the police alongwith Ram Dularey, the step father of the petitioner, reached the petitioner's marital home and arrested her alongwith her husband, mother-in-law and bother-in-law. On 2-10-1994 the police got the petitioner medically examined at Mahila Hospital, Lucknow. According to the doctor's opinion, the petitioner was a major aged about 18 years at that time. Photo copy of the medical examination report is Annexure 1 to the writ petition. The writ petition goes on to state that the petitioner was handed over to respondent Ram Dularey by the police even without being produced before a Magistrate and even without her statement being recorded under Section 164, Cr. P. C. which is usually done in such case. Para 9 of the writ petition mentions that habeas corpus Writ Petition No. 187 of 1995 was filed on behalf of the petitioner by her husband, but the same was dismissed on 16-8-1995 by a learned Single Judge of this Court. Annexure 2 to the writ petition is copy of the said Judgment. In paras 10 and 11 of the writ petition, it is mentioned that in January 1996 t. he step father of the petitioner lodged yet another report at P. S. Aliganj, Lucknow under Sec tions 363/366, IPC which was registered as crime No. 35 of 1996 and in respect of this crime, statement of the petitioner was recorded under Section 164, Cr. P. C. by a Magistrate on 22-1-1996 in which the petitioner stated that she was aged 20 years and was wife of Amir Khan alias Raju. The petitioner declined to go with respondent Ram Dularey and insisted that she be al lowed to go with her husband. In para 12 of the writ petition, it is stated that the husband of the petitioner claimed Supurdigi of the petitioner by moving an application on 24-1-1996, but the said application was rejected on the same day. Copies of the application and the order of the learned Magistrate are Anuexures 3 and 4 to the writ petition. By means of his order dated 24-1-1996 (Aniiexure 4) the learned Magistrate directed that the petitioner may continue in the Protective Home, Lucknow. In reply to the averments made in the writ petition a counter-affidavit of S. I. Sonkar Batou has been filed oa behalf of the State. A detailed counter-affidavit has been filed by respondent Ram Dularey. In his counter-affidavit, Ram Dularey has given his residence as Jhaggi-Jhopadi, Near Petrol Pump, Aligasj, Luckaow and ia para 6 of his counter-affidavit, he stated that an international gang is working in India which is busy in getting Hindu girls converted into Islam and his case is a part of their nefarious activities. However, it may be observed that - the allegations contained in para 6 of the affidavit do not find support by the stand taken by the State and there is not even a whisper in the counter-affidavit filed by Sub-Inspector Sonkar Babu which may lend continence to this allegation. In the counter-affidavit of Ram Dularey, it is fur ther stated that the petitioner Soil. Kusum is a minor and her date of birth is 30-8- 1983. The counter-affidavit goes on to state that Amir Khan alias Raju was having an evil eye on the petitioner and he kidnapped her on 26-4-1994 regarding which FIR was lodge at P. S. Aliganj, Lucknow giving rise to crime No. 270 of 1994 and subsequently Smt. Kusum was recovered and handed over to him by the police and thereafter Amir Khan alias Raju filed habeas corpus writ petition No. 187 of 1995 which was dismissed. It is further stated in the counter-affidavit that on 15-1-1996 Amir Khan alias Raju again kidnaped the petitioner and another case was registered as crime No. 35 of 1996 under Sections 363/366/323/504/506, IPC. In the counter-affidavit, marriage of Smt. Kusum with Amir Khan alias Raju has been denied and it has been further asserted that Kusum has not embraced Islam and continues to be a Hindu. Regarding the statement made by the petitioner under Section 164, Cr. P. C. , it is asserted in para 30 of the counter-affidavit that the petitioner has given the statement under Section 164, Cr. P. C. due to undue pressure of Amir Khan alias Raju. The record shows that on 22-5-1996 a Division Bench of this Court consisting of Hon'ble Mrs. Justice Shobha Dikshit and Hon'ble Mr. Justice A. S. Gill recorded statement of the petitioner who stated that she was 18 years of age. She further stated that Amir Khan alias Raju was her husband with whom she has entered into marriage of her own free will. She further stated that she was major and wants to go and live with her husband Amir Khan alias Raju. At the time of hearing ot this Writ Petition, we again summoned Kusum from the Protective Home, Lucknow. The petitioner appeared in Court having her iri fant child in her lap.
(3.) THE material on the record goes to show that after the petitioner was given in Supurdigof respondent Ram Dularey, another FIR was lodged by Ram Dolarey in January 1996 regarding the second kidnap ping of the petitioner and thereafter she was again recovered and was sent to the Protec tive Home on 24-1- 1996. THEreafter she filed the present writ petition and under orders of a Division Bench of this Court consisting of Hon'ble Mr. Justice S. H. A Kara and Hon'ble Mrs. Justice Shobha Diskshit she was medically examined on 21-5-1996. Her medical examination shows that she was 18 years of age and was carrying pregnancy of six months. It appears that the conception of the petitioner was the result of cohabitation of the petitioner with Amir Khan alias Raju after the alleged second kidnapping and she has already delivered the child which was in her lap when she appeared before us on 28-1-1997. THE al legation in the supplementary affidavit dated 6-11-19% of Amir Khan alias Raju that the child delivered by the petitioner was born from his union, appears to be prima facie correct, but we refrain from recording any categorical finding on this point. It is not disputed that Smt. Kusum has taken the stand that she has married with Amir Khan alias Raju and she has insisted that she may be set at liberty so that she may live happily with her husband Amir Khan alias Raju. As mentioned earlier, she gave her statement before a Bench consist ing of Hon'ble Mrs. Shobha Dikshit and Hon'ble Mr. Justice A. S. Gill that she had married with Amir Khan alias Raju out of her own free will; she was a major and she wanted to go and live with her husband Amir Khan alias Raju. Even earlier when her statement under Section 164, Cr. P. C. was recorded, she had stated that her mother was not alive ; respondent No. 3 Ram Duiarey was not her real father and she had married Amir Khan alias Raja out of her ownfree will.;