In Chamber
Case :- WRIT - C No. - 13889 of 2019 Petitioner :- Nisha And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Kumar Pundir Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J.
Hon'ble Saurabh Shyam Shamshery,J.
Heard Sri S.K. Pundir for the petitioners; learned Standing Counsel for respondents 1 to 4 and Sri Akhilesh Kumar Mishra and Sri Amit Kumar Rai for the respondent no.5.
The petitioner no.1 is resident of State of Himachal Pradesh. She did matriculation from Himachal Board of Education. The matriculation certificate reveals her date of birth as 4th June, 2001. By today, she has attained the age of majority.
It appears that before attaining the age of majority, she had eloped with petitioner no.2. As the parents of the petitioner no.1 were on the lookout for their daughter, the petitioners had approached this Court by filing Writ C No.13889 of 2019 for a direction upon the State- respondents to provide protection to the petitioners to enable them to lead happy married life without harassment from the family members.
On 26th April, 2019, the Court passed a detailed order, which is extracted below:
"The petitioners have filed the present petition alleging that the petitioner no. 1 is a minor and is a Hindu by caste and shall become major on 04.06.2019. The petitioner no. 2 is a Muslim by caste, however, he claims that he has converted into Hinduism. The petitioner nos. 1 and 2 have stated that they got married on 05.04.2019 in accordance with Hindu rites and rituals at Saharanpur, however, on account of their different religion, grave threat is being given and the petitioners apprehend that they will be subjected to honour killing and, thus, they have filed the present petition to protect their rights guaranteed under Article 21 of the Constitution of India.
Considering the averments that the petitioner no. 1 is minor, a peculiar situation has arisen, as who would be the guardian of the petitioner no. 1 and further whether the petitioner 1 can be allowed to co-habit with the petitioner no. 2 till the time she attains majority. It is relevant to state that section 376 IPC clearly provides that any intercourse with a female less than 18 years would constitute an offence under section 376 IPC. However, it is well settled that despite the liabilities that the acts of the petitioner may be subjected under law, they cannot be deprived of their rights under Article 21 of the Constitution of India which is sacrosanct and cannot be compromised in any event.
In view of the peculiar facts of this case, the Court has to decide as who would the guardian of the petitioner no. 1 till the time she attains majority on 04.06.2019. The petitioner nos. 1 and 2 are present in the Court and petitioner no. 1 has clearly stated that she does not want to go to her parents house who have objected the marriage and she apprehends threat from them. This Court has been apprised that in similar facts a Co-ordinate Bench of this Court has sent the minor girl in the Asha Jyodi Kendra, Prayagraj. This Court in Writ C No. 11275 of 2019 (Jyoti and 5 others vs. State of U.P. and 5 others), decided on 02.4.2019 has passed the following order:
"Issue notice to respondent nos. 3 to 6 returnable on 22nd April, 2019.
The Chief Judicial Magistrate, Pilibhit is directed to effect service of the notice on the aforesaid respondents and send service report to this Court within two weeks.
Office is directed to communicate the notice to the Chief Judicial Magistrate, Pilibhit within forty-eight hours.
We have heard Sri Shiv Kumar Pal, learned Government Advocate. He has apprised us that in similar facts a coordinate Bench of this Court sends girl child to Asha Jyoti Kendra, Prayagraj. He assures us that safety of the girl shall be ensured by the said Kendra.
The Senior Superintendent of Police, Prayagraj is directed to send the petitioner no. 1 Jyoti, daughter of Bharatveer, to Asha Jyoti Kendra, Prayagraj today.
Learned Government Advocate shall communicate this order to the Senior Superintendent of Police, Prayagraj for compliance of this order.
Put up this case on 22nd April, 2019 as fresh before the appropriate Bench."
Considering the facts of the present case, we direct the Senior Superintendent of Police, Prayagraj to ensure that she is safe and is kept with Asha Jyoti Kendra, Prayagraj till 06.06.2019. We also issue directions to the District Magistrate, Prayagraj to ensure that the girl, petitioner no. 1, is arranged to stay at Asha Jyoti Kendra, Prayagraj today itself.
We have requested Sri M.C. Chaturvedi, learned Additional Advocate General to ensure due compliance of this order. He shall communicate this order to the Senior Superintendent of Police, Prayagraj as well as the District Magistrate, Prayagraj for compliance of the of this order.
This order is an interim arrangement till 06.06.2019. On which date, this Court shall pass appropriate orders considering the case of Nandakumar and another vs. The State of Kerala and others, in Criminal Appeal No. 597 of 2018, decided on 20.4.2018.
List this case on 06.06.2019 before the appropriate Bench during the summer vacations, on the said date the petitioner no. 2 shall be present in the Court and the petitioner no. 1 shall be produced before the Court by SSP, Prayagraj and on the said date so that the wishes of the girl, petitioner no. 1 can be ascertained and suitable orders can be passed."
However, as the petitioner no.1 had not by then attained majority, she was lodged at Asha Jyoti Kendra, Prayagraj.
Pursuant to the order dated 26th April, 2019, the girl (petitioner no.1) has been produced before us.
The girl has stated before us, in the presence of her mother and father, who have been identified by the counsel representing the respondent no.5, that she does not want to go with her parents and that she be set free and allowed to go where ever she wants. We had enquired from her as to how she came to know about the petitioner no.2, upon which, she told that the petitioner no.2 had been working in Himanchal Pradesh and therefore she got acquainted with him. She has not stated anything against the petitioner no.2 which we may lead us to infer that any force or coercion has been used upon her.
The mother of the petitioner no.1 has stated that the petitioner no.2 is not the right man for the petitioner no.1 because she has information that he had earlier also got engaged with some girl.
The petitioner no.1 refutes the aforesaid allegation and states that her mother is not stating the correct facts. It has also been brought to our notice through recall application, which has been seeking recall of the order dated 26th April, 2019, that a first information report has been registered against the petitioner no.2 (Majid @ Munna) at police station Palampur, district Kangra (Himanchal Pradesh) as Case Crime No.0055 of 2019, under Sections 363 and 366 IPC.
On the strength of the aforesaid first information report, learned counsel for the respondent no.5 submitted that since the petitioner no.2 is an offender, the victim should not be allowed to be with the offender.
We do not agree with the aforesaid submission of learned counsel for the respondent no.5 because once the victim has attained the age of majority we cannot impose some body else's choice upon her. It is her sweet will to choose the person with whom she wants to live.
However, as nothing further has been disclosed to us as regards threat to personal safety of the petitioners and otherwise also the parents of the petitioner no.1 appear to be persons of ordinary means who have no reported criminal background, we do not consider it necessary to issue any specific direction upon the State-respondents to provide security to the petitioners. However, considering that the petitioner no.1 has already attained majority and she has desired that she be set free, we deem it appropriate to dispose off this petition by providing that the petitioner no.1 (Nisha) would be set free forthwith. In case, there is any threat extended to the petitioners, other than threat of arrest in the criminal case registered against the petitioner no.2, the petitioners would be at liberty to apply to the authority concerned by making specific disclosure as regards existence of such threat.
It is made clear that we have not expressed any opinion as regards merits of the allegation made in the criminal case and therefore the petitioners would be at liberty to take recourse to appropriate legal remedy in respect of criminal case that has been registered against the petitioner no.2.
With the aforesaid observation, the petition stands
disposed off.
Order Date :- 6.6.2019. Rks.
In Chambers at 4.30 P.M.
After we had dictated the above order and we had separated to sit singly in separate jurisdiction, a mention was made in the Bench of one of us (Hon'ble Manoj Misra, J.) that as the girl and the boy were leaving the high court premises, number of persons had surrounded them and they started beating the boy with a view to ensure that the petitioner no.1 (Nisha), who was intending to go with the boy, is separated from him. Consequently, we have again assembled to pass following order:
The Senior Superintendent of Police, Prayagraj shall ensure that a lady constable and a male constable is provided to the petitioners for safe passage to their native village in district Saharanpur. The constable shall ensure that no untoward incident takes place. This order has been passed in the presence of Sri S.K. Pundir, learned counsel for the petitioners; Sri Vineet Pandey, learned Chief Standing Counsel-IV representing respondents 1 to 4; Sri A.K. Rai representing respondent no.5.
Let a copy of this order be supplied to Sri Vineet Pandey, learned Chief Standing Counsel-IV today to ensure compliance.
Order Date :- 6.6.2019. Rks.