In a habeas corpus petition seeking the release of an adult detenue, the High Court observed her changing statements regarding residence and sought clarification via a mediator report, noting her capacity to understand her welfare.
Petition dismissed; willenue granted liberty to reside with person of her choice.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
D.B. Habeas Corpus No. 55/2019
Nisar Khan Son Of Shri Rajjak Khan, Aged About 22 Years, By Caste Mev Resident Of Gram Mancha, Police Station Kishangarh Baas District Alwar.
----Petitioner
Versus
----Respondents
For Petitioner(s) : Mr. Hanish Khan For Respondent(s) : Mr. N.S. Gurjar, PP for State
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE G R MOOLCHANDANI
Order
15/03/2019
Present habeas corpus petition has been filed under Article 226 of the Constitution of India praying that Sarjeena who has been unlawfully detained by respondent No.6, be set free.
The petitioner has claimed that Sarjeena on 15.11.2018 was married with him as per Muslim rites and customs. Reliance has been placed upon Nikah Nama (Annx.2).
This court on 14.03.2019 had passed the following order:-
(2 of 4)
[HC-55/2019]
“Head Constable Mr. Rajesh Kumar, Police Station Malakheda, District Alwar, is present in court. He is directed to produce Sarjeena alleged detenue in this court tomorrow.
A further direction is issued to the Head Constable Mr. Rajesh Kumar, Police Station Malakheda, District Alwar, to serve a notice upon respondent Nos.5 and 6 regarding pendency of the present petition and the next date fixed before this court.
List the present petition on 15.03.2019.
Name of Mr. N.S. Gurjar, Assistant Govt. Advocate, be reflected in the cause list as counsel for the respondent Nos. 1 to 4.
Copy of this order be handed over to Mr. N.S. Gurjar, Assistant Govt. Advocate, under the seal and signature of Court Master for onward transmission and strict compliance.”
In pursuance of above said order, in pre-lunch session, Sarjeena was produced before this court. She has put us to our wits end to understand her wish. She has enacted every kind of theater and drama in this court including feigning unconsciousness. At first instance she stated that she intend to stay with Arif. When she was told to accompany Arif, she feigned unconsciousness and fell on the floor of the Court. A lady Doctor was called. Suddenly she stood up and sat with Nisar Khan petitioner and kept on talking with him. Later she changed her version and expressed her inclination to accompany the petitioner Nisar Khan.
Initially we thought detenue Sarjeena produced before us is not able to understand her rights that she being major is entitled to accompany any person with whom she so wishes to reside.
(3 of 4)
[HC-55/2019]
Therefore, we called Ms. Archana Mishra, in the Court. She is an officer of the rank of District & Sessions Judge and is posted as Director, Rajsthan State Legal Services Authority (RSLSA). She is a trained Mediator also. We asked Sarjeena to accompany Ms. Archana Mishra.
After lunch session, Ms. Archana Mishra, trained Mediator, submitted a report before us. We have taken the said report on record.
As per the said report, Sarjeena stated that against the wishes of her father she had performed marriage with the petitioner. She further stated that she resided with the family of petitioner Nisar Khan for two months. She further stated that she still loves Nisar Khan and Nisar’s family is very cordial to her. In the report, Ms. Archana Mishra has stated that Sarjeena has expressed her desire that she want to accompany Nisar Khan, petitioner.
After lunch when the case was taken-up in the presence of Arif and her father, Sarjeena again changed her version and stated that she want to accompany Arif. We directed Nisar Khan, Arif and other relations of Sarjeena to go outside the court. In open Court we again asked Sarjeena as to with whom she intend to stay. At this juncture, Sarjeena stated that she want to accompany Arif.
Sarjeena has stated that she is more than 18 years of age. She is major and adult and she can understand her welfare.
(4 of 4)
[HC-55/2019]
Taking totality of circumstances, we dismiss the present petition with liberty to detenue Sarjeena to reside wherever she so wishes and with person of her choice.
We appreciate the services rendered by Ms. Archana Mishra, Director, RSLSA, an officer of District Judge cadre, who acted as a Mediator at our request.
(G R MOOLCHANDANI)J (KANWALJIT SINGH AHLUWALIA)J
Govind/
2 issues framed by the court
Whether a habeas corpus petition to secure the release of an adult detenue should be allowed when she expresses conflicting desires regarding companionship.
Whether an adult female detenue has the right to choose her residence and accompanying person.
1 provisions across 1 enactments
Nisar Khan
State Of Rajasthan
Pappu Khan
Arif
Kanwalsingh Ahluwalia
G R Moolchandani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
