IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE R. DEVDAS WPHC No.33/2019 BETWEEN:
YASIN KHAN S/O KHUDDUS KHAN, AGED ABOUT 43 YEARS, R/AT No.699, 1ST MAIN ROAD, NOORANI MASJID, BELTHURU COLONY, BANGALORE-560067.KARNATAKA .
... PETITIONER (BY SMT. RADHIKA M., ADVOCATE FOR SMT. PADMAVATHI N., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESEANTED BY PRINICPAL SECRETARY HOME DEPARTMENT, VIDHANA SOUDHA AMBEDKAR VEEDHI, BANGALORE-560001.
2. DIRECTOR INSPECTOR GENERAL NRUPATHUNGA ROAD BANGALORE-560001.
3. THE COMMISSIONER OF POLICE INFANTRY ROAD, BANGALORE-560001.
4. STATION HOUSE SOFFICER WHITE FIELD SUB-DIVISION, KADUGODI-560067.
... RESPONDENTS (BY DR. S.V. GIRIKUMAR, AGA FOR R1 TO R4) **** THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF THE HABEAS CORPUS AND DIRECT THE 4TH RESPONDENT TO TRACE AND PRODUCE THE DAUGHTER OF THE PETITIONER BY NAME SHAHEENA, AGED ABOUT 15 YEARS WHO HAS BEEN ILLEGALLY DETAINED BY ONE GANGA ETC.
THIS WPHC COMING ON FOR ORDERS THIS DAY, B. VEERAPPA J., MADE THE FOLLOWING.
O R D E R The present writ petition is filed by the father of detenue-Shaheena for a writ in the nature of habeas corpus directing the respondent No.4 - Police to trace and produce his daughter before the Court.
2. It is the case of the petitioner that he is a resident of No.699, 1st Main Road, Noorani Masjid, Belthuru Colony, Bangalore-560067 and has seven children and the detenue- Shaheena is his 6th daughter and she was born on 10.05.2005 and studying in Government Urdu School, Belathuru Colony, Kadugodi, Bangalore. It is alleged that on 02.02.2019 at about 4:30 p.m., the wife of the petitioner viz., Smt. Apsari left his daughter – Shaheena near the house of one Ayisha. The said Smt. Ayisha was teaching Arabic language to the detenue. Thereafter, the wife of the petitioner went near the house of Smt. Ayisha to pick up her daughter - Shaheena, but the Shaheena was not found in the house of Smt. Ayisha. Therefore, the petitioner and his wife searched for their minor daughter in the house of their relations, but she was not traced.
3. It is further case of the petitioner that he suspects one Mr. Ganga, who was working in Construction Company which was by the side of his house and run by one Mr.
Ashok Kumar Dixit might have kidnapped his daughter. Therefore, he lodged a complaint against Mr. Ganga before the jurisdictional Police Station and the Police registered the FIR on 4.2.2019 in Crime No.33/2019 of Kadugodi Police Station for the offence punishable under Section 363 of the Indian Penal Code. Since the Police have not traced his daughter, the petitioner has preferred the present writ petition.
4. When the matter came up before this Court on 05.03.2019, a weeks’ time was granted to comply with the office objections and the learned Additional Government Advocate was directed to take notice for respondents. Again when the matter was posted on 12.03.2019, office objection is over-ruled and at the request of the learned Additional Advocate General, the matter was adjourned to 20.3.2019 to produce the order already passed by the Allahabad High Court alongwith the relevant documents.
5. Subsequently, when the matter came up before the Court on 24.04.2019, the learned Additional Advocate has filed a memo seeking for a direction to the Senior- Superintendent of Police, Bareli District in Uttar Pradesh to assist the Bengaluru Police of Karnataka State effectively in order to trace and secure the detenue – Shaheena, on the ground that the said Police are not properly assisting the local Police. While placing the said submission on record, this court issued direction to the Senior-Superintendent of Police, Bareli district, Uttar Pradesh District to assist the Bengaluru Police of Karnataka State in order to effectively trace and secure the minor girl-Shaheena and also directed the Inspector General of Uttar Pradesh to monitor the assistance to be provided to the Police of Bengaluru in Karnataka, in order to effectively trace the minor girl.
6. Today at about 11:30 a.m. Dr. S.V. Girikumar, learned Additional Government Advocate pleaded urgency and moved for taking up this matter. Accordingly, the matter is posted before the Court today.
7. We have heard the learned counsel for the petitioner as well as the learned Additional Government Advocate for the respondents and perused the materials placed on record carefully.
8. Today, the minor girl – Shaheena is produced before this Court through Smt. Sarojini, Sub-Inspector of Police of Kadugodi Police Station and Smt. Suma, W.PC 12767 of Kadugodi Police Station.
9. When, we enquired detenue-Shaheena in the open Court in presence of her parents, the learned Additional Government Advocate for the State and learned counsel for the petitioner, she submitted that she is 15 years old. She further stated in the open Court that she has married one Ganga Singha Thakur on 07.02.2019 at Allahabad and at present, she is a pregnant. The said submissions are placed on record.
10. The material on record clearly depicts that the present detenue - Shaheena @ Nisha Arya and another have filed W.P.No.5027/2019 before the Allahabad High Court for a writ of mandamus directing the respondents therein viz., State of Uttar Pradesh and two others, not to interfere in their peaceful matrimonial life. On perusal of the order passed by the Allahabad High Court in the above writ petition, it clearly depicts that the petitioner No.1 therein had converted herself to the religion of petitioner No.2 on her own free will. Learned counsel for the petitioners in the said writ petition submitted before the Allahabad High Court that both the petitioners therein are majors and have solemnized their marriage with each other according to the Hindu Rites and Customs on 06.02.2019 and have also applied on-line for registration of their marriage and no first information report has been registered against them.
11. The learned Single Judge of the Allahabad High Court, while disposing of W.P. No.5027/2019, has not expressed any opinion about the validity of their marriage and genuineness of their marriage certificate and observed that the order passed in the said writ petition shall not protect the petitioners therein against any action of proceedings pursuant to any FIR or complaint case against them.
12. Learned counsel for the petitioner has produced the Aadhar card of the detenue- Shaheena, which clearly depicts that the date of birth of detenue-Shaheena is 10.5.2005. As per the Study Certificate (Annexure-R14) issued by the Government Urdu Higher Primary School, Belathuru Colony, Kadugodi post, Bangalore, the date of birth of the detenue is 10.5.2004. The Study Certificate issued by the Government school and the Aadhar card issued by the Government of India clearly depict that detenue-Shaheena is a minor as on the date of registration of the FIR on 04.02.2019.
13. The materials placed on record also clearly indicates that as on the date of alleged marriage, the detenue – Shaheena is a minor and admittedly her alleged husband - Ganga Singha Thakur has been arrested by the jurisdictional police and he is in judicial custody.
14. In the peculiar facts and circumstances of the case, and in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the care, protection and welfare of the minor girl-Shaheena and the child in the womb, are of paramount importance. Therefore, this Court of the considered opinion that the minor girl - Shaheena has to be referred to the Child Welfare Committee constituted by the State Government under the provisions of the Act.
15. In view of the above, the writ petition is disposed of. The detenue – Shaheena, aged about 15 years is referred to Child Welfare Committee constituted by the State Government under the Provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’ for short). Though the minor girl – Shaheena expressed that she is ready to go with her parents, but in view of the provisions of the Act, it is for the Child Welfare Committee to take decision after following the proper procedure as contemplated under the Act and in accordance with law.
16. It is brought to our notice by the detenue that she is pregnant and hence this Court deems it fit to hold that the detenue’s welfare is of paramount importance and it is the responsibility of the State Government to provide all welfare measures to protect her and the child in the womb, in accordance with law.
Ordered accordingly.
Copy of this order shall be communicated to concerned Child Welfare Committee forthwith to take necessary action.
SD/-
JUDGE SD/- JUDGE Ssb/-