IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.148 of 2010 BAIDHYANATH SAHANI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: Mr. N. K. Agarwal, Sr. Advocate Dr. Abdus Shakoor, Advocate For the State: Mr. Ritesh Kumar, AC to AAG I For the Resp. 9 & 10: Mr. Durga Nand Jha, Advocate. 08. 15.11.2010 Heard learned counsel for the petitioner, counsel appearing for respondent no. 10 and the State, representing respondents 3 to 8. The petitioner, Baidyanath Sahani, claims to be the husband of respondent no. 9, Pooja Kumari @ Rita Kumari. He has filed this application for issuance of writ of Habeas Corpus in order to release her legally wedded wife, respondent no. 9, Pooja Kumari, who is presently in illegal confinement of her father, respondent no. 10. The case of the petitioner is that Pooja Kumari and the petitioner being in love with each other decided to solemnize their marriage even against the wishes of the parents of Pooja Kumari, since she was major and aged about 20 years. Pooja Kumari left her father’s place, came to the petitioner and decided to marry. The petitioner and respondent no. 9 solemnized their marriage as per the Hindu rights and customs. The court marriage was also solemnized on 08.11.2008 before Benipur Court, at Darbhanga. However, the Respondent No. 2 10, Laxman Jha, father of Pooja Kumari, instituted Sakatpur P. S. Case No. 74 of 2008, alleging abduction of his 16 years minor daughter by the petitioner. The case was instituted under sections 363 and 366A of the Indian Penal Code. The petitioner and Pooja Kumari, after their marriage, started living as husband and wife, which resulted into the pregnancy of Respondent No. 9. Subsequently, petitioner and his wife came to know about the institution of Sakatpur P. S. Case No. 74 of 2008 and they decided to appear before the Court of Judicial Magistrate, 2nd Class, Darbhanga, where the case was pending. On appearance of the petitioner, he was taken into custody and sent to jail. The statement of Pooja Kumari was recorded under section 164 of the Cr.P.C. and she was also sent for her medical examination, in order to ascertain her age. Pooja Kumari in her statement recorded under section 164 Cr.P.C. disclosed that she has solemnized marriage with the petitioner and carrying pregnancy. She completely denied the allegation made in the First Information Report regarding her abduction by the petitioner and stated that out of her own freewill she left her father’s house and solemnized her marriage with the petitioner. Despite the fact that the age of Pooja Kumari was assessed in the medical report in between 19 to 20 years, the Judicial Magistrate sent her to Remand Home. The Respondent No. 9 during her detention at Remand Home filed Cr.W.J.C. No. 390 of 2009, with a prayer to release her from her illegal detention in 3 the Remand Home and allow her to go in the company of her father-in-law. The writ application was decided by Order dated 22.05.2009 and a direction was issued for her release from the Remand Home, considering her to be a major girl. Hon’ble Judges of the Division Bench, coming to know about the wishes of Respondent No. 9, allowed her to go in the company of her father-in-law. Respondent No. 9, on being released, went with her father-in-law. Subsequently, when the petitioner was also released on bail, she started living with the petitioner as husband and wife. It so happened that the Respondent No. 10 and other associates came to the house of the petitioner in his absence and forcibly took away Pooja Kumari to Village – Mahiya. Petitioner, thereafter, instituted Babuharhi P. S. Case No. 14 of 2009. The statement of Pooja Kumari was again recorded under section 164 Cr.P.C. in connection with Babuharhi P. S. Case No. 14 of 2009 and this time she completely changed her statement. She made allegations against the petitioner that he forcibly kidnapped her. She was raped by him and due to that she became pregnant. While she was at Remand Home, the father of the petitioner gave her some medicines due to which her pregnancy was aborted. She also stated in her statement recorded under section 164 Cr.P.C. that on earlier occasion in connection with Sakatpur P.S. Case No. 74 of 2008, she had recorded her statement under section 164 Cr.P.C. under the pressure of the petitioner. Because of the 4 threat and pressure exercised by the petitioner, she had made her statement before the Hon’ble Judges in the High Court that she wants to be released in favour of her father-in-law. She also alleged that when she was released from Remand Home, her father-in-law also wanted to establish illicit relationship with her. The statements of Respondent No. 9 on two different occasions recorded under section 164 Cr.P.C. indicates that subsequently she changed her mind and now she was not intending to continue her marital relationship with the petitioner. In the last paragraph of her statement, recorded under section 164 Cr.P.C. in connection with Babubarhi P.S. Case No. 14 of 2009, she has stated that out of her own choice, she left the house of the petitioner in the company of her father and presently she is residing at her father’s place at Mahiya, where she wants to live in future. This statement of Pooja Kumari indicates that she had not been taken forcibly by her father from her matrimonial home, rather she out of her own freewill decided to go with her father. Presently, she is residing at her father’s place at Village-Mahiya, as she has decided to live there. There is nothing to show that she has illegally been confined by her father against her wishes. Since, there is nothing on record to show that the Respondent No. 9 has illegally been confined by her father, the facts of the case reveal that Respondent No. 9, being major, aged more than 20 years, has decided her place of residence, since, she has disclosed 5 her mind before the Magistrate while recording her statement under section 164 Cr.P.C. that presently she is living at Village- Mahiya at her father’s place as she wants to reside there. This indicates that she is not in illegal confinement, rather this is the option exercised by her, being an adult citizen of the country, she can exercise her option and choose to live at any place in this country, for which she is entitled in the eye of law. In view of the aforesaid facts and circumstances, we do not find any reason for issuance of Writ of Habeas Corpus. The Respondent No. 9 is not in illegal confinement and there is no reason for issuance of Writ of Habeas Corpus. This application is, accordingly, being dismissed. However, considering the fact that the petitioner claims to be the husband of Respondent No. 9, he has other option available under section 9 of the Hindu Marriage Act. He can file his application for restitution of conjugal rights before the competent Family Courts. SKM (Mridula Mishra, J.) (Dharnidhar Jha, J.)