- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2246 OF 2007 AND CRIMINAL APPLICATION NO.10 OF 2008 Mr.Kamlesh S/o. Arunkumar Renuke. .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents -- S/Shri S.K.Chaurasia, Advocate, i/by A.M.Saraogi, Advocate, for the Petitioner. Smt.U.V.Kejariwal, APP for the Respondent No.1-State. Smt.Edit Dey, Advocate, i/by Shri Harshad Mirashi, Advocate for the Respondent No.3. -- CORAM : SRI R.M.S.KHANDEPARKAR & SRI A.A.SAYED, JJ DATED : 22ND FEBRUARY, 2008 P.C. 1. Heard. The present petition has been filed seeking direction to the respondent No.1 to produce the respondent no.2 before this Court on the ground that the petitioner is entitled for custody of the respondent No.2 as she was married to the petitioner on 6th May, 2007 in a local temple known as "Jungle Maharaj" situated near Shirdi. - 2 - 2. The application has been filed in the said petition for further direction to the respondent No.1 to forthwith accompany the petitioner and visit the City of Joanpur at U.P. and rescue the respondent No.2 from the custody of the respondent No.3 or from her family members. 3. We have heard the learned advocates for the petitioner and the respondent No.3 as also the learned APP for the respondent No.1-State. We have also gone through the petition and the annexures thereto and the application as well as the affidavit-in-reply filed by the respondent No.3 and the annexures thereto. While it is the case of the petitioner that he was married to the respondent No.2 on 6th May, 2007 in a temple known as "Jungle Maharaj" situated near Shirdi, it is the case of the respondent No.3 that the respondent No.2 got married with one Rahul Singh, son of Nandalal Singh, on 25th November, 2007 and she has been presently residing with her husband in Uttar Pradesh, and the present petition has been filed merely to malign the name of the girl and to ruin her marriage. 4. Undisputedly, an FIR came to be lodged at R.A.Kidwai Marg Police Station, Mumbai, on 25th May, 2007 against the petitioner alleging that the - 3 - petitioner had kidnapped the respondent No.2 with an intention to illegally marry her and further a charge under Section 376 of Indian Penal Code has also been levelled against the petitioner and the petitioner was arrested and subsequently released on bail. It is only after filing of such chargesheet, the present petition came to be filed. The chargesheet was filed on 13th July, 2007 as has been informed across the bar by the learned APP on taking instruction from the police officer, whereas the petition has been filed on 30th November, 2007. 5. A copy of the birth certificate of the respondent No.2 which has been filed along with the chargesheet and a copy whereof is produced by the petitioner himself along with the petition disclose that the respondent No.2 was born on 24th July, 1990 and the marriage is claimed to have been performed on 6th May, 2007. Obviously, the girl was minor in age for the purpose of performing marriage on 6th May, 2007. It was sought to be contended on behalf of the petitioner that he was shown the School Leaving Certificate of the respondent No.2 which disclosed her birth date to be 24th January, 1989 and that therefore, he believed that she was above 18 years of age and hence performed the marriage on 6th May, 2007. - 4 - There is however no explanation as to why he did not ascertain the age by obtaining necessary birth certificate from the Municipal Corporation of Mumbai when undisputedly the respondent No.2 was born in Mumbai. 6. As regards the claim of marriage on 6th May, 2007, necessary averments in the petition read thus:- "The Petitioner states that the Petitioner and the Respondent No.2 were in love with each other, after she attained the age of majority they got married with each other in a local temple known as Jungle Maharaj situated near Shirdi on 6th May, 2007." The petition nowhere discloses the exact place where such temple is situated except that it is situated near Shirdi. Shirdi is a well known town in the State of Maharashtra and it is not a very small place as such. It is surrounded by various villages. To a specific query to the petitioner’s advocate as to exact location of the temple, even after taking necessary instructions from the petitioner who is present in the Court, he could not answer about the exact location of such temple. - 5 - 7. Further, attention was drawn by the learned advocate for the respondent No.3 to the Exhibit-D (Page 43) to the petition while contending that the claim of the alleged marriage is without any basis and further to be false. The Exhibit-D to the petition is the transcript of the conversation between the petitioner and the respondent No.2 on 19th September, 2007. It is in Hindi and one of the sentences therein reads thus:- "MERE KO TERE SATH HI SHADI KARNE KA HAI." Apparently, the girl herself, according to the petitioner himself, had confirmed even on 19th September, 2007 that she wanted to marry the petitioner. In other words, the marriage between the petitioner and the girl was yet to be performed even on 19th September, 2007 and there is a specific confirmation of the same by none other than the Respondent No.2 herself. Being so, the petitioner’s claim of marriage with the respondent No.2 on 6th May, 2007 apparently appears to be totally devoid of substance. Perusal of the affidavit of the respondent No.3 and the annexures thereto clearly discloses that the respondent No.2 is already married in the month of - 6 - November last to one Rahul Singh, son of Nandalal Singh, and is presently staying with her husband in U.P. The photographs annexed to the said affidavit also disclose that the girl, who is stated to be the respondent No.2, having been married to another person by name one Rahul Singh, Son of Nandalal Singh. Considering the same, undoubtedly, it discloses that the girl is married to one Rahul Singh, son of Nandalal Singh, albeit, as rightly pointed out by the learned advocate for the petitioner, the said marriage also appears to be contrary to the provisions of law as the girl continues to be minor for the purpose of marriage on 25th November, 2007. However, as it is the claim of the petitioner that the marriage is taken place in Uttar Pradesh, that can certainly be looked into by the concerned authorities in Uttar Pradesh and that itself however cannot be a ground for grant of claim of custody of the respondent No.2 to the petitioner. 8. Once it was to the knowledge of the petitioner on the date of the petition which was filed that he could not have married the respondent No.2 on 6th May, 2007 as, on that date, she had not completed her age of 18 years, there is absolutely no case for the petitioner to seek custody of the respondent No.2 and - 7 - certainly not in the circumstances where the petitioner was already facing a charge of kidnapping and rape on the respondent No.2. The criminal case has been filed against the petitioner on the basis of investigation carried out pursuant to the FIR No.131 of 2007 lodged at R.A.Kidwai Marg Police Station, Mumbai. 9. For the reasons stated above, therefore, we do not find any case having been made out for issuance of writ of habeas corpus for production of the respondent No.2 or to grant any other relief to the petitioner in the case in hand. As the matter stands today, since the petitioner is not entitled for custody of the respondent No.2 in the eyes of law, the question of issuance of any such writ does not arise. 10. In the circumstances, therefore, the petition fails and is hereby dismissed with costs. For the same reason, the criminal application is also dismissed with costs. 11. All ad-interim directions, if any, stand vacated. - 8 - ( R.M.S.KHANDEPARKAR, J ) ( A.A.SAYED, J )