Court No. - 49
Case :- HABEAS CORPUS WRIT PETITION No. - 797 of 2020 Petitioner :- Smt. Rakhi Asthana And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Rakesh Kumar Gupta Counsel for Respondent :- G.A.,Hitesh Pachori
Hon'ble Vivek Agarwal,J.
1. Sri R.K. Gupta, learned counsel for the petitioner and Sri Gambhir Singh, leaned AGA for the State.
2. This writ petition has been filed by the petitioner no.1- Smt. Rakhi Asthana claiming thereunder that petitioner no.2- Shekhar Asthana is her husband. Their marriage was initially performed on 16.08.2002 at Arya Samaj Mandir, Rajamandi Agra, for which a certificate is enclosed as annexure no.1 to the writ petition. It is submitted that after marriage, since it was a love marriage, parents and brothers of petitioner no.2, namely, respondent nos.6, 7 and 8 never accepted the relationship between petitioner no.1 and 2 and created all sorts of hurdles which ultimately resulted in grant of a decree of divorce on 15.03.2019.
3. Sri Gupta submits that he has filed a supplementary affidavit, which is perused and through the supplementary affidavit, he has tried to impress upon this Court that with annexure- S.A.-4, three photographs have been enclosed to demonstrate that petitioner no.2- Shekhar Asthana had again performed marriage with the petitioner no.1 on 03.01.2020.
4. Sri Gupta submits that this marriage was performed at Police Station Jagdishpura, Janapad Agra, therefore, after divorce, there is again reestablishment of relationship of husband and wife between petitioner nos.1 and 2, and, on the strength of this renewed conjugal relationship, petitioner no.1 has filed this petition in the nature of habeas corpus seeking custody of petitioner no.2 which according to petitioner no.1 is under illegal detention of respondent nos.6, 7 and 8.
5. Learned AGA opposes.
6. A perusal of the supplementary affidavit reveals that divorce case was filed by petitioner no.2, which was registered as Case No.1105 of 2018 at Family Court, Agra and this application was filed under Section 13B of Hindu Marriage Act. Decree of divorce was passed on 15.03.2019 and this decree of divorce is passed under the provisions of Section 13B of Hindu Marriage Act, is a decree of divorce obtained with mutual consent. There is no explanation as to when petitioners had obtained divorce with mutual consent and a decree was passed under Section 13B of Hindu Marriage Act, then what was the occasion for the petitioners to enter into an alliance of remarriage on 03.01.2020. Besides this, the photographs, which have been enclosed as annexure- SA- 4 does not bear any date nor any place can be deciphered, as to where they are standing and who is responsible for this remarriage. Besides this, Sri Gupta submits that marriage was facilitated and was performed in the presence of police personnel of Police Station Jagdishpura, Janapad Agra. However, he is not in a position to explain that since when police personnels have adorned the role of performing rituals for marriage and under which provision of law they were authorized to solemnize the marriage between the petitioners.
7. In view of such facts, the submission in regard to remarriage appears to be doubtful, however, no conclusive finding can be recorded as it is matter of evidence to be adduced in appropriate proceedings before appropriate trial court.
8. Petitioners have also placed reliance on anneuxre no.3 of the supplementary affidavit, which is dated 12.09.2020 addressed to the SHO, Police Station Jagdishpura, Janapad Agra and another application available on page 13 of the supplementary affidavit is concerned, there are contradictory versions in that too. In the application, which is undated and available on page 13 of the supplementary affidavit, it is mentioned that petitioner no.1 was not aware of the fact that petitioner no.2 was obtaining her signatures on an application to seek mutual divorce. It is further mentioned in the said application that she was never informed as to why petitioner no.2 wanted to divorce her and on the contrary it is mentioned that petitioner no.2 had represented to the petitioner no.1 when no objection order will be passed, then the couple will hire a house but thereafter it is mentioned in the application itself that husband of the petitioner no.1 started maintaining distance from her and when she asked what will be the fate of children, then he did not give any reply and left children and the petitioner no.1 in lurch and has eloped somewhere.
9. Contents of this document, which are available on page 13 of the supplementary affidavit clearly reveals that it is not a case of illegal confinement but it may be at the most a case of abandonment of family for which remedy lies elsewhere and not in seeking writ of habeas corpus.
10. At this stage, learned counsel for the petitioners submits that a notice too was served on the respondents on 06.01.2020, which is available on record as anneuxre- SA-2, but despite this notice, no impact has been made.
11. A perusal of the notice available on record as SA- 2 allegedly served by one Vijay Pratap Singh, Advocate, Civil Court, Agra dated 06.01.2020 reveals that said notice was given claiming maintenance and there is no mention of the fact that petitioner no.2 has been kept in unlawful custody of private respondents.
12. At this stage, Sri Gambhir Singh, learned AGA has drawn attention to document annexure no.3 filed alongwith the writ petition and submits that annexure no.3 is a letter sent by petitioner no.1 on 11.09.2020 and is addressed to the Senior Superintendent of Police, Janapad Agra. This application demonstrates that petitioner no.1 has admitted that she is a divorced lady.
13. This communication which has been filed by the petitioner no.1 exposes the hollowness of the claim of the petitioner no.1 inasmuch as it is the contention of the learned counsel for the petitioners that on 03.01.2020, petitioner no.1 had entered into a remarriage alliance with petitioner no.2. If this submission given by Sri R.K. Gupta is to be believed then there was no reason for the petitioner no.1 to send a communication as has been filed by Sri R.K. Gupta alongwith the petition dated 11.09.2020, in which petitioner no.1 was required to depict herself to be divorced lady.
14. In this communication dated 11.09.2020, petitioner no.1 has mentioned that despite divorce, her husband is following her unnecessarily and expressed his desire to remarry her and so also desire to pay some amount for the welfare of children and wife and thereafter under such false assurance on 19.08.2020, took the petitioner no.1 on his motorcycle. He offered her a cold drink laced with some intoxicant and raped her at J.R. Palace Hotel and under such facts and circumstances, petitioner no.1 requested the SSP, Agra to register a case against her husband.
15. When this communication is read in conjunction with the photographs filed alongwith the supplementary affidavit as annexure SA- 4, then it is apparent that petitioner no.1 is guilty of playing fraud on the process of the Court and has not approached this Court with the clean hands.
16. Similar application was also submitted on 12.09.2020, annexure no.4 to the petition addressed to the SHO, Police Station Jagdishpura, Janapad, Agra.
17. At this stage, learned counsel for the petitioners submits that divorce decree is already under challenge before the High Court.
18. Whole story reveals that this petition is a clever device to coerce the police to register a case against private respondents. In my opinion, when there is tacit as well as direct admission of the petitioner no.1 that petitioner no.2 has already divorced her, then her remedy to challenge the decree of divorce if it was obtained through coercion lies elsewhere.There is no document on record to substantiate the submission of Sri R.K. Gupta, learned counsel for the petitioners that there was any remarriage performed between the petitioners on 03.01.2020. This submission gets belied on face of it in the light of the documents filed by the petitioners themselves, namely, annexure nos.3 and 4 to the petition, in which, petitioner no.1 has depicted herself to be a divorced woman and has also made allegations of commission of rape on the petitioner no.2. Therefore, it cannot be said that petitioner no.2 is under unlawful custody of the private respondents.
19. Thus, petition fails and is dismissed.
Order Date :- 27.7.2021 Ravi/-