Court No. - 72
Case :- HABEAS CORPUS WRIT PETITION No. - 655 of 2021 Petitioner :- Smt. Swati And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shashank Dwivedi Counsel for Respondent :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard Mr. Shashank Dwivedi learned counsel for the petitioners; Mr. Rabindra Kumar Singh, learned A.G.A., assisted by Mr. Prashant Kumar Singh, learned Brief Holder representing the State and perused the record of the case.
The factual matrix, giving rise to filing of the instant habeas corpus writ petition in brief are that the respondent no. 4, who is father of petitioner no. 1/corpus had lodged F.I.R. on 01.04.2020 against the petitioner no. 2 as Case Crime No. 0055 of 2020, under Sections 363, 366 I.P.C. at Police Station- Indargarh, District Kannauj. In the said F.I.R. petitioner no. 1 Smt. Swati/corpus is the victim. In that case statement under Section 164 Cr.P.C. of the petitioner no.1 was recorded, in which she has stated that her date of birth is 08.05.2000. Petitioner no. 2 is son of her aunt, therefore, her parents were not ready for her marriage with him. On 24.03.2020, she left her house and had gone to Bhopal with petitioner no. 2, where they solemnized marriage in Arya Samaj Temple. Though as per medical examination report, petitioner no.1 is major, but as per high school certificate, she was minor on the date of incident, as her date of birth is mentioned as 01.01.2004, therefore, learned Chief Judicial Magistrate, Kannauj vide order dated 09.09.2020 treating the petitioner no.1 as minor directed the investigating officer to produce the petitioner no. 1 before the Child Welfare Committee. Thereafter petitioner no. 1 was sent to Rajkiya Bal Grah (Balika), Kanpur Nagar on 09.09.2020. Later on, she moved an application before the Superintendent, Child Welfare Committee, Kannauj expressing her desire to go her house with her parents. On the request of petitioner no.1, her custody was handed over to her father (respondent no. 4) by the Child Welfare Committee, Kannauj. The order dated 09.09.2020 of Chief Judicial Magistrate, Kannauj was challenged by the petitioner no. 2 in Criminal Revision No. 43 of 2020, which was rejected by the Sessions Judge, Kannauj vide order dated 03.12.2020 observing that there is no illegality in the order dated 09.09.2020 of C.J.M., Kannauj. Thereafter, the petitioner no. 2 has filed a writ petition registered as Matters Under Article 227 No. 3279 of 2021, but the same was dismissed as not pressed vide order dated 19.08.2021.
Thereafter the instant habeas corpus writ petition has been preferred by the petitioner no. 2-Mohan Singh with a prayer to direct the respondents to produce the corpus/petitioner no. 1- Smt. Swati before this Court and set her free on her own desire.
It is submitted by the learned counsel for the petitioner no. 2 that on 15.07.2021 petitioner no. 2 came to know that parents of petitioner no.1/corpus solemnized her marriage with one Ashish resident of Village-Meerpur, District-Farrukhabad and presently she is living in her matrimonial home. The main substratum of argument of learned counsel for the petitioner no.2 is that custody of the Corpus/petitioner no.1 was wrongly given by an illegal order of child welfare committee, to her father (respondent no.4) who has solemnized her marriage with one Ashish, therefore, her custody is illegal and she is under illegal detention of respondent no.4.
Per contra, learned A.G.A. opposed the prayer of the petition by contending that the victim was a minor girl, therefore, her consent was immaterial under the law and her alleged marriage with the petitioner no.2 is also can not be said to be legal. Since the petitioner no.1 was minor, therefore, initially her custody was handed over to Child Welfare Committee by the judicial order dated 09.09.2020 of C.J.M., Kannauj and thereafter on the application of petitioner no. 1/corpus, her custody was further given to her father (respondent no. 4) by the Child Welfare Committee appointed under Section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Under the facts of this case it cannot be said that the petitioner no.1/corpus is under wrongful confinement or illegal detention of her father and as such, the instant writ petition seeking a writ of habeas corpus is not maintainable in view of Full Bench decision of this Court in the case of Km. Rachna and another Vs. State of U.P. and others, reported in 2021 (3) ADJ 415. It is also pointed out that Mr. Ashish, with whom, marriage of the corpus has been solemnized as mentioned in the writ petition, has not been impleaded as opposite party.
Having heard the arguments of learned counsel for the parties, I find that the order dated 09.09.2020 of Chief Judicial Magistrate has been challenged by the petitioner no.2, but the same was dismissed vide order dated 03.12.2020 of Sessions Judge, Kannauj. There is no dispute that custody of petitioner no. 1/corpus was given to her father (respondent no. 4) by the order of Child Welfare Committee, which is a statutory authority. Therefore, it cannot be said that petitioner no.
1/corpus is under illegal detention of her father (respondent no. 4).
In view of above, the instant habeas corpus writ petition is not maintainable and is accordingly dismissed.
Order Date :- 26.10.2021 Sunil Kr. Gupta