Disposed

Munni Ram Mahiya v. State of Rajasthan

Rajasthan HC20 Nov 2023HC/148/2023

Case brief

AI extract

What is this about?

Division Bench disposed of a habeas corpus petition concerning a girl in juvenile custody who had gone missing. Medical tests established she was an adult. The girl refused parental custody but agreed to go with her husband and child. The Court granted custody to the husband, treating it as a rarest of rare case for the child's welfare.

What did the court decide?

Custody of the petitioner and her newborn baby released to the respondent Pawan Kumar and his family members with directions for safe passage.

Munni Ram Mahiya Vs State of Rajasthan — Child Custody and Guardianship | Rajasthan HC (2023)

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[2023:RJ-JD:39600-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Habeas Corpus Petition No. 148/2023

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Munni Ram Mahiya S/o Govind Ram, Aged About 50 Years, Sahajarasar, Kalu, District Bikaner.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Home Department, Government Of Rajasthan, Secretariat, Jaipur.

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The Superintendent Of Police, Bikaner.

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The Station House Officer, P.s. Kalu District Bikaner.

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Pawan S/o Dariya Singh, Dhobi, Hisar Sadar, District Hisar (Haryana).

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Jitendra S/o Ranveer, Dhobi, Hisar Sadar, District Hisar (Haryana).

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Vijendra S/o Ranveer, Dhobi, Hisar Sadar, District Hisar (Haryana).

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Suman D/o Dariya Singh, Dhobi, Hisar Sadar, District Hisar (Haryana).

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Surendra Godara S/o Not Known, Dhobi, Hisar Sadar, District Hisar (Haryana).

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----Respondents

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For Petitioner(s) : Mr. Pritam Joshi for Mr. SK Verma For Respondent(s) : Mr. M.A. Siddiqui, GA cum AAG Mr. Mohan Ram Choudhary Mr. Vivek Sharma Mr. Rohit Mutha Mr. Ram Niwas, ASI & Smt. Kiran Kanwar, LFC, P.S. Kalu, Bikaner

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

20/11/2023

(2 of 8)

[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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The present habeas corpus has been filed by the petitioner with the following prayer :-

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"a) by an appropriate writ, order or direction this habeas corpus petition filed by the petitioner may kindly be allowed.

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b) by an appropriate writ, order or direction the respondent no.1 to 3 may kindly be directed to produce corpus Pooja before this Hon'ble Court and set her free at liberty as per her own will and wishes.

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c) any other appropriate order, which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

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The matter comes up on an application for early hearing of the case.

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2.1 For the reasons mentioned in the application, the same is allowed and with the consent of the learned counsel for the parties, the matter is finally heard.

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The facts emanating out of the present petition are that the father of the corpus has approached this Court while filing the habeas corpus petition on ground of his minor daughter (the corpus) having gone missing since 05.09.2022. The mark-sheet of secondary examination was brought on record by the petitionerfather, which reflected that the date of birth of corpus was 15.07.2006. The petition has been filed on 10.05.2023.

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Upon such habeas corpus having been filed, the police traced out the corpus from Arunachal Pradesh on 11.06.2023 and thereafter lodged her in Rajkiya Balika Grah, Bikaner on 16.06.2023. The police while submitting the report to the learned GA cum AAG also mentioned the result of medical board, which

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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(3 of 8)

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reflected that the corpus was carrying pregnancy of 36-37 weeks, thereafter the corpus delivered a baby boy at PMB Hospital, Bikaner on 28.06.2023 and again was lodged at the Nari Niketan, Bikaner along with her newly born child. The corpus repeatedly insisted before this Court that she is a major and her record has been manipulated, which is also recorded by the Division Bench of this Hon'ble Court in its order-sheet dated 27.07.2023. The corpus expressed her willingness to go with the mother of Pawan Kumar whom she claimed to be the father of her child.

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On directions of Division Bench of this Hon'ble Court, an ossification test was conducted upon the corpus and it reflected that age of the corpus was between 17 to 20 years on the date of examination that was 01.08.2023. The corpus before this Court refused to go with the parents but wanted to go to the house of Pawan Kumar with whom she had her relationship.

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The Division Bench of this Hon'ble Court on 04.08.2023 interacted with Smt. Bala (mother of Pawan Kumar) and Ms. Suman (sister of Pawan Kumar) and both of them stated that they are ready to accept the corpus along with the newly born child. At that time, Mr. Panwar Kumar (husband of corpus) was in judicial custody in relation to the FIR lodged at the instance of parents of corpus.

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The Division Bench of this Hon'ble Court on 04.08.2023 opined that as per report of medical board, the average age of corpus is more than 18 years and therefore deemed it appropriate that some more time be granted to the corpus to think over it while being lodged at Balika Grah, Bikaner. The Division Bench of this Hon'ble Court also permitted the corpus to meet Smt. Bala

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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(4 of 8)

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(mother of Pawan Kumar) and Ms. Suman (sister of Pawan Kumar) and also appropriate directions were given to provide proper care to the new born child.

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The Division Bench of this Hon'ble Court on 04.09.2023 again interacted with the corpus, who had refused to go with her parents but was ready to live with Pawan Kumar with whom she was in relationship and further she was willing to go with the mother and sister of Pawan Kumar, who were also present in the Court. The concern of the Court not to release the corpus to the mother and sister of Pawan Kumar was that Pawan Kumar himself was in jail at that time and until an appropriate response of Pawan Kumar could be obtained and the investigation in FIR completed only then further adjudication of the habeas corpus could take place.

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Again the matter was listed before the Division Bench of this Hon'ble Court on 18.10.2023 whereby in pursuant to the earlier direction, the corpus was again produced and the Division Bench of this Hon'ble Court, which was pleased to interact with the corpus, who refused to go with her parents, but clearly stated that she was willing to live with mother and sister of Pawan Kumar.

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Today when the matter is being heard, the corpus along with her newly born child and Pawan Kumar & his family members are present and it is informed that he has now been released on bail by this Court in S.B. Criminal Misc. Bail Application No.12612/2023 on 02.11.2023 while the Single Bench of this Court kept into consideration the statement rendered by the corpus under Section 164 of Cr.P.C.

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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(5 of 8)

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Mr. M.A. Siddiqui, learned GA cum AAG has shown the case diary, in which the statement of the corpus is recorded in the capacity of the prosecutrix in the FIR, in which, she has said that on 05.09.2022, she went to a temple in Haryana where the corpus and Mr. Pawan Kumar entered into a wedlock while following the religious ceremony. The statement is there in the case diary.

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11.1 The corpus and Mr. Pawan Kumar, who are present before this Court, reiterate the same stand that they got married in a simple religious ceremony on 05.09.2022 at a temple in Haryana and thereafter maintained relationship as husband and wife and thus, a baby boy has been born out of the said wedlock.

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Learned GA cum AAG fairly submits that he is sensitive to the adjudication includeing fate of the new born child, who is also here in the Court and submits that this could be treated as a rarest of the rare case to release the corpus and new born baby to Mr. Pawan Kumar-father of the baby and his family members, as an extraordinary measure. He also submits that ordinarily he would have opposed the case of the corpus being released in this matter as this was a POCSO case but looking into the statement made by the corpus and her husband in the Court today, it would be in the best interest of justice that the corpus along with her newly born child be released to the custody of her husband-Pawan Kumar and his family members.

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Learned counsel for the petitioner submits that father of corpus does not wish to take any stand regarding the release of the corpus to Mr. Pawan Kumar, as in the past after repeated efforts of the Court, it has come on record that the corpus does not want to go with her parents.

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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(6 of 8)

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Ordinarily, this Court would not be granting any indulgence of releasing the corpus to the husband / father of new born baby in such a circumstance where a POCSO case has been registered. The course adopted by this Court to place the corpus in the Balika Grah, Bikaner was the safest mode of preserving the welfare of the corpus but the continues progress of the adjudication in this case indicates that in the best interest of corpus and the new born baby, who was born on 28.06.2023 at PBM Hospital, Bikaner, the custody should be given to Pawan Kumar, who is claimed to be the husband of the corpus. A fervent appeal by the corpus and Mr. Pawan Kumar that they may be permitted to live as husband and wife voluntarily is occupying the mind of the Court with the prime focus being the welfare of the new born baby to the corpus and Mr. Pawan Kumar.

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Mr. Pawan Kumar has categorically submitted that he is the lawfully wedded husband of the corpus and also submits that he is father of the newly born child and as a legal guardian / natural guardian, he is prepared to take the custody of the newly born baby and corpus. He has assured this Court he shall take all step in the interest of newly born child for the welfare of the child and his legally wedded wife (corpus) and thus, he and his family members may be given the custody of the newly born child as well as corpus.

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This Court is also bearing in mind that the corpus has vehemently submitted that her school record is not correct and has been manipulated by her parents. Upon the direction of Division Bench of this Hon'ble Court, an ossification test was also conducted by the Medical Board and the age of the corpus was

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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(7 of 8)

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reflected to be between 17 to 20 years whereas the average age would be above 18 years. A firm and confirming attitude of Mr. Pawan Kumar before this Court today along with his family members makes it imperative upon the Court to consider his request for releasing the corpus to his custody along with his new born son. To ascertain it, this Court also earlier on number of occasions has drawn proceedings ascertaining the Will of corpus, in which, she has categorically refused the proposition of going with her father but has insisted on going with the husband's family and today also she is very firm in her wish to go with her husband and his family members. The grant of bail to the husband on 02.11.2023 is a subsequent development which has today prompted the parties to make final submission.

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Thus, in such extraordinary circumstances, treating it to be a rarest of the rare case on the basis of the present factual matrix and while taking into consideration the ossification test report of the medical board, whereby the average age of the corpus has been opined as major and also seeing that the corpus is matured and firm in her statement to go with her husband Mr. Pawan Kumar (as claimed by her) along with her new born child and also the sincerity and earnestness of the husband, who is in tears before this Court, to take away his lawfully wedded wife-corpus and his newly born child as claimed by him in a better environment than that of Balika Grah, Bikaner, this Court deems it appropriate to dispose of the present habeas corpus petition with the necessary directions.

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Consequently, the present habeas corpus petition is disposed of, while directing the respondents to release the custody of the

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(8 of 8)

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[2023:RJ-JD:39600-DB]

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[HC-148/2023]

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corpus with her newly born baby to her husband-Pawan Kumar, who is a major and his family members, who all are present in the Court.

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The respondents authority are directed to enable safe passage to the present corpus to the home of Pawan Kumar at Haryana. Any coordination and cooperation required from Haryana Police shall also be ensured. Further if any kind of threat perception which is reflected in the submissions made by the corpus and Pawan Kuamr from the family members of the corpus, shall be taken care of by the concerned authorities in Rajasthan and Haryana, after assessing the safety perception of all three persons.

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The custody of the corpus and her newly born baby be released in accordance with the aforesaid direction with immediate effect while ascertaining the safety of the corpus and newly born child. The information of such release be given to Balika Grah, Bikaner.

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(RAJENDRA PRAKASH SONI),J

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(DR.PUSHPENDRA SINGH BHATI), J

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21-Sudheer/-

Munni Ram Mahiya v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Munni Ram Mahiya v. State of Rajasthan

Case brief

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