IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.855 of 2011 Krishna Deo Thakur son of Sri Parmeshwar Thakur, resident of village-Sri Ram pipra, P.O.-Anandpur, P.S.-Bahadurpur, District- Darbhanga ……. …….Petitioner Versus 1.The State of Bihar through Chief Secretary, Main Secretariate, Bihar, Patna 2. The Secretary, Home Department, Bihar, Patna 3.The Director General of Police, Bihar, Patna 4.The Superintendent of Police, Darbhanga 5.The Officer Incharge, Kamtaul Police Station, 6.Satish Chandra Jha son of late Radha Raman Jha 7.Raj Kumari Devi wife of Kunwar Ji Jha 8.Kunwar Ji Jha son of late Radha Raman Jha Respondent nos. 6, 7 and 8 are resident of village +P.O.-Dhadhiya, P.S.-Kamtaul, District- Darbhanga. ……. …….Respondents ----------- 2. 30.8.2011. The present habeas corpus application has been filed by the petitioner claiming that he had married one Seema Kumari, daughter of respondent no.6 according to Hindu rites at Darbhanga on 10.6.2008. It was an inter caste marriage which is not accepted by respondent no.6. The respondent no.6 filed a criminal case of kidnapping alleging that Seema Kumari was minor. The petitioner was arrested and Seema Kumari was recovered by the police. She was produced before the Magistrate for her statement under section 164 of the Code of Criminal Procedure. She stated that her age was 24 years and she had willfully eloped with the petitioner and got married. She was sent for medical examination where her age was determined about 21 years. Unfortunately, father insisted that she was minor. However, the court agreed to release her to the custody of her parents for a period of six months. Whereafter, she had to be returned to the petitioner, as alleged. It appears that after her 2 release on her behalf i.e. on behalf of Seema Kumari various petitions were filed wherein she allegedly retracted her statement under section 164 Cr.P.C. On the basis of her statement under section 164 Cr.P.C. the police submitted a final report showing the case to be ‘mistake of fact’ but the learned Magistrate differing from the said report took cognizance of the offence punishable under section 363 of the Code of Criminal Procedure as against the petitioner and others. The petitioner then moved the Magistrate for custody of Seema Kumari. The Magistrate ordered for the girl to be transferred to the custody of petitioner, against which order respondent no.6, the father, filed revision before the Sessions Judge. The petitioner is aggrieved by the order as passed in revision. In our view, the facts show complete insensitivity of the authorities to the matter in issue. They are dealing with the girl as if she is a commodity. It cannot be doubted that she is an adult notwithstanding the fact that she is daughter of respondent no.6 or allegedly lawfully wedded wife of the petitioner. Being an adult, it is she who would decide where and with whom she would live. No court has any authority to enforce its view upon her in this regard. If the petitioner has apprehension that she is being illegally detained against her wish then the petitioner has remedy under section 97 and 98 of the Code of Criminal Procedure. If that is not sufficient then there are provisions under section 339 and analogus sections of the Indian Penal Code. All this is apart section 9 of the Hindu Marriage Act which provides for restitution of conjugal right but surely in the criminal case the petitioner or father of Seema Kumari or for that 3 matter court cannot deal with the matter as if she is a property and passing the order for custody without even bothering to call her to take her view in this regard. Courts must act accordingly. Thus, in our view, the present writ petition is misconceived. The petitioner is at liberty to take recourse to legal proceeding as he may be advised in the matter including those noted above. With this observation, the writ petition is disposed of. Md.S. (Navaniti Prasad Singh, J.) ( Ashwani Kumar Singh, J.)