JUDGMENT Rakesh Sharma, J.
1. This habeas corpus petition was filed by one Sri Sanjay Kumar Tripathi, son of Sri Harish Chandra Tripathi Assistant J. Worker 1st Sahara India, Sector Office, Sitapur resident of 108, Sitapur Road Scheme, Mohibullapur, Lucknow. It was indicated in the petition that the respondents have illegally detained his alleged wife Smt. Kalpana, daughter of Sri Ram Singh, resident of 211/25/23A, behind S.A.M. College. Ram Nagar Pathapura, P.S. Sadar, district Saharanpur.
2. Notices were issued to the respondents to file their counter-affidavit. Affidavit filed by Smt. Kalpana Chauhan and counter-affidavit filed by opposite party No. 1 indicate that Smt. Kalpana was not under illegal detention. Sri Sanjay Tripathi was already married to one Smt. Mamta who is still alive. Sri Sanjay Tripathi is father of three childrenVineet Tripathi (11 years). Km. Rimjhim (10 years) and Km. Shikha (9 years) out of the wedlock with Smt. Mamta. Rather it was represented by Sri Sanjay Tripathi that his earlier wife had died and he is not having any issue out of previous wedlock.
3. On coming to know about all these facts, Smt. Kalpana Chauhan called her father and proceeded to Saharanpur alongwith him out of her own will. While leaving Lucknow, Smt. Kalpana Chauhan had reported the matter to the police of P.S. Madiyaon by way of an application, a copy of which is contained in Annexure-1 to the writ petition but no action has been taken on this report submitted to S.O. P.S. Madiyaon, Lucknow on 12.12.2005. The detenue was summoned and the following order was passed by this Court in presence of all the contesting parties in the open Court on 13.4.2006:
In compliance of the Court's order, Ms. Kalpana Chauhan, aged about 25 years, daughter of Sri Ram Singh Chauhan, resident of 2/125/23A, Pathanpura, Pargana, Tahsil and district Saharanpur accompanied by her father Sri Ram Singh Chauhan is present in Court.
Ms. Kalpana Chauhan has made a statement before the Court that Sri Sanjay Kumar Tripathi has committed fraud on her and her family. He was already married to one Smt. Mamta, daughter of Sri Bechan Tewari, resident of village Balua, district Gorakhpur, who is still alive. He has three childrenVineet Tripathi (11 years), Km. Rimjhim (10 years) and Km. Shikha (9 years) out of the wedlock with Smt. Mamta.
It has also been brought to the notice of the Court that an application was given by Ms. Kalpana Chauhan and her father to S.H.O. Madiyaon, Lucknow in this regard. A formal Suit No. 1065 of 2005, Kalpana Chauhan v. Sanjay Tripathi, has been filed in the court of Civil Judge (Junior Division), Saharanpur under Section 12 of the Hindu Marriage Act for declaring the alleged marriage dated 14.3.2004 with Sanjay Kumar Tripathi as null and void. In reaction to this, Sanjay Kumar Tripathi has filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the Family Court, Lucknow and this habeas corpus petition has been filed on 6.2.2006.
Ms. Kalpana Chauhan has categorically submitted that she is not under illegal detention or custody of opposite parties 1 and 2, and in the abovementioned compelling circumstances, she is living with her parents at Saharanpur. This habeas corpus petition and the application under Section 9 of the Hindu Marriage Act have been filed by Sanjay Kumar Tripathi in order to harass her and to succeed in illegal designs crafted by him.
In view of above, this Court is of the opinion that Ms. Kalpana Chauhan is not in illegal detention or custody of opposite parties. She is free to go wherever she likes.
After going through the above statement of Ms. Kalpana Chauhan, her personal affidavit and the counter-affidavit filed by the opposite party No. 1 as also the contents of writ petition, it emerges that Sanjay Kumar Tripathi has tried to abuse the process of law with illegal motive. Let this case be taken up on 17.4.2006 for further hearing and appropriate orders.
Sanjay Kumar Tripathi shall remain present in Court on that date.
4. The case was taken up on 17.4.2006 and the following order was passed by this Court:
Sri Irshad Ahmad, advocate has put in appearance and Sri Vinod Anand Dixit, advocate also appears for the petitioner. Sri Sanjay Kumar Tripathi has filed affidavit today alongwith uakalatnama of Sri Irshad Ahmad, advocate. It has been indicated in the affidavit that on account of ill health of Smt. Mamta Tripathi, first wife of the deponent with her consent the petitioner married with Smt. Kalpana.
As per paras 3, 5, 6 and 7 of the affidavit filed today by Sanjay Kumar Tripathi, his marriage with Smt. Kalpana was not a windfall, but was a result of deliberation and consultation and prior making of minds between the two ladies, Smt. Mamta and Smt. Kalpana. They had lived together for a long time with Sri Sanjay Kumar Tripathi at Lucknow. In para 8 of the said affidavit, it has been submitted as below:
That human feeling, emotions and sentiments cannot be measured in metes and bounds. Human heart is immeasurable. Human emotions, human relations and human situations have no set norms and no set formula. That inferences and conclusions are drawn not from dead uniformity but with realistic diversity and this Hon'ble Court has piercing and penetrative inside to separate the grain from the chaff and to distinguish between truth and falsehood and to draw a fine line between abstract and concrete. Your Lordship has to see the entire pattern of things from a very detached height.
Sri Irshad Ahmad, advocate appearing for the petitioner has denied the contents of affidavit filed by Smt. Kalpana and her father Sri Ram Singh.
This Court has taken statement of Smt. Kalpana on 13.4.2006. Sri Irshad Ahmad, advocate has seen the order passed by the Court on 13.4.2006 Smt. Kalpana wants to study the case and put forth his version.
List on 10.5.2006.
5. After recording the above orders, this case has come up for hearing today. From the versions of the parties, this Court is of the opinion that there is no element of illegal detention present in this case.
6. The writ petition is accordingly dismissed.
7. It has also been brought to the notice of the Court that Sri Sanjay Kumar Tripathi has also filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the Family Court, Lucknow and this habeas corpus petition has been filed by him to harass Smt. Kalpana. Smt. Kalpana has filed a formal Suit No. 1065 of 2005, under Section 12 of the Hindu Marriage Act for declaring her alleged marriage with Sanjay Kumar Tripathi as null and void. Sanjay Kumar Tripathi has put in appearance and it was brought on record that earlier to filing of application for restitution of conjugal rights, the suit for declaring his marriage with Kalpana Chauhan null and void under Section 12 of the Hindu Marriage Act was filed. This writ petition was presented on 6.2.2006, despite continuance of the above litigation. Evidently Sanjay Kumar Tripathi has abused the process of law. Learned Counsel for the petitioner has tried to defend his client submitting that he had no knowledge of these facts. This case was being listed on several dates, calling attention of the Court and the precious time of the Court was wasted. The respondents had to come from Saharanpur to contest the case. The administrative machinery, i.e., S.P., Lucknow, S.P. Saharanpur and S.O. Madlyaon were put in motion to assist the Court. This Court, therefore, awards Rs. 25,000 as costs against Sanjay Kumar Tripathi, son of Sri Harish Chandra Tripathi Assistant J. worker 1st Sahara India, Sector Offices Sitapur resident of 108, Sitapur Road Scheme, Mohibulla Pur, Lucknow. Out of that amount, Rs. 12,500 shall be deposited with Legal Aid Fund, Saharanpur and Rs. 12,500 with Legal Aid Fund, Lucknow, within three months. It shall be open for the concerned police authority to take cognizance of the matter and proceed against Sanjay Kumar Tripathi in accordance with law.
8. Copy of the judgment shall be made available to learned Government advocate for necessary action etc.