- (1.) THIS habeas corpus petition has been filed by the father seeking the production of his daughter Anju who as per allegations in the petition is in unlawful custody of the respondents NO. 4 and 5. Notices of the petition was given to the respondents. In response to the notice, respondents No.1 to 3 have filed their reply. The respondents have stated in their reply that in the first instance on 16.4.2012 a written compliant was submitted by the petitioner regarding abduction of his daughter Anju by one Dharmveer on 10.4.2012. On the aforesaid report, FIR No. 273/2012 was registered u/s 363, 366 and 379 IPC at Police Station Deeg, District Bharatpur and investigation was started.
(2.) IT has further been stated that the detenu, daughter of the petitioner Anju was recovered by the police, during the course of investigation and she was handed over to the father vide order dated 18.5.2012. The accused Dharmveer was arrested by the police. It is thus stated that the detenu had been recovered and handed over to the father and as such, the petition should be disposed. However, yesterday (5.7.2012) when the Dy. Superintendent of Police, Deeg was present before us in court, it was revealed that in fact this is the third time that the daughter of the petitioner has left the home within a month. Initially, she left the home as per FIR on 10.4.2012 and she was recovered on 19.4.2012 and handed over to the father. Immediately thereafter, she again ran away from the house of the father. The petitioner's daughter was apprehended on or about 26.4.2012 and her statement u/s 164 Cr.P.C. was recorded. The Magistrate then gave the custody of the detenu to the father after recording the statement u/s 164 Cr.P.C. on 26.4.2012. Thereafter, it was orally submitted before us that the marriage of the detenu is stated to have been performed by the parents along with her sister and she was sent to the matrimonial home. The third time she is actually supposed to have left matrimonial home and run away from there. After she left the matrimonial home, she was apprehended along with one Laxman Singh and proceedings u/s 109 Cr.P.C. were lodged before the Sub-Divisional Magistrate, in pursuance of which she was produced before the Executive Magistrate. The Executive Magistrate vide order dated 18.5.2012 released the detenu on bail treating her to be a major on the bail bond and surety- bonds being furnished by Nawab Singh and since then she is living with Nawab Singh who is the Phupha (uncle) of accused Dharmveer. Yesterday, i.e. On 05.07.2012 the detenu was produced before us by Nawab Singh who stated that on coming to know about the filing of this petition he has produced Anju before this Court.Anju was remanded to the care of the children home vide order dated 5.7.2012 to be produced in court on 6.7.2012. She has been produced before the court today and her statement was ordered to be recorded by the Dy. Registrar (Judl.) by a separate order which statement is on record. We inquired from Anju whether she was being detained against her wishes by Nawab Singh or any other person. Detenu Anju clearly stated that she had in fact entered into marriage with Dharmveer which was not acceptable to her parents and thereafter she had been apprehended and produced before the Court of the Magistrate and her statement under Section 164 Cr.P.C. was recorded. Anju orally submitted before this Court that the aforesaid statement under Section 164 Cr.P.C. was recorded under duress and she had been threatened that in case she did not depose as she had been directed by the parents, her life and that of Dharmveer would be at peril, as such she had no option but to depose as she was directed. So far as the aforesaid statement of Anju is concerned, it is open for the detenu to move an application before the concerned Magistrate in that behalf. The question before us is whether the detenu who was released by the SDM, after the complaint was lodged by the Police under Section 109 Cr.P.C. on the detenu being apprehended by the Police in the night of 18.05.2012, on bail furnished by Nawab Singh, the 'Phupha' of Dharmveer and the detenu having been produced before us by Nawab Singh on coming to know about filing of this petition, is in unlawful custody of Nawab Singh, more particularly, when the parents had not approached the S.D.M. or any Court of law for securing her custody other than filing this habeas corpus petition. Whether or not the statement given under Section 164 Cr.P.C. by Anju was under duress as stated by her is a question of fact, though she has stated so in her statement made before the Dy. Registrar (Judl.) of this court, and this Court cannot go into the aforesaid question in the writ jurisdiction. Nonetheless it does not cast a doubt. The petitioner has also not come to this court with the true facts. May be the petitioner did not consider the fact of the performance of the marriage of Anju by the parents and her having run away from the matrimonial home to be extraneous is also a question which requires consideration. The fact remains that Anju did not leave the home of the father as has been submitted in the petition but her matrimonial home and the husband did not lodge any report in this behalf. What transpired between the husband and wife is also not known. In her statement in court she has stated her age to be 18 years which makes her a major. In case, however, the married girl is a minor then in terms of Section 6 of the Hindu Minority & Guardianship Act, 1956, it is the husband who is the guardian. Provisions of Section 6 of the Act of 1956 reads as follows :- 6. Natural guardians of a Hindu Minor, - The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are - (a) XXX (b) XXX (c) in the case of a married girl � the husband : Provided XXX (a) XXX (b) XXXX Explanation XXX
(3.) THE question therefore, arises is that, when as per the facts which have come before us during the course of the hearing that the detenu has been married, once to Dharmveer, against the wishes of the parents (petitioner) and again by the parents against her wishes then in the light of the provisions contained in section 6 of the Act, the petition could only have been filed by the husband as the guardian of the minor wife. Then it would be the husband who would be entitled to seek the custody of the minor wife for which as stated above, no proceedings have been initiated by the husband. But the detenu has stated before the SDM that she is 18 years of age and a major and again in her statement today recorded by the Deputy Registrar [Judicial] of this Court that she is 18 years of age, thus being a major she is free to decide her own destiny. The age given by her in the statement under Section 164 Cr.P.C. is some what under a doubt as she claims that the said statement was given under duress as she was to be married by her parents who wanted her custody to save their honour. If we assume that she is a minor aged 17 years then as we have recorded above, the custody of Anju the detenu is with Nawab Singh in pursuance of the orders passed by the SDM in proceedings u/s 109 Cr.P.C. as the parents did not seek her custody, then in that event we are of the view that since the custody of Anju with Nawab Singh is in pursuance of the orders passed by the court, it could not be held that her custody was unlawful and she was in unlawful detention as the order of the SDM is not questioned or challenged. We may also state here that Anju stated before us that she does not wish to accompany her parents and she even fears for her life as in case she is sent with her parents and as they are not agreeable to the marriage between Anju and Dharmveer her life is in danger as such she and Dharmveer may be given police protection. In view of the above conclusion that we have come to that Anju is in the care of Nawab Singh under the orders of SDM dated 18.5.2012, it cannot be said that she is unlawful detention. Also that it cannot be held that she is clearly below 18 years of age and a minor she is free to decide her destiny as she is a major as such she is entitled to be set at liberty. ;