IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.491 of 2011 Minakshi Devi, Wife of Rajesh Kumar Gupta, resident of Vill./ Mohalla & P.S.-Nasariganj, District-Rohtas. –Petitioner. VERSUS 1. The State of Bihar through the Superintendent of Police, Rohtas. 2. Rajesh Prasad Gupta, Son of Bharat Prasad, 3. Bharat Prasad, Son of Late Jagdish Prasad, Both residents of Mohalla-Nasariganj Ward No.9, Rohtas. –Respondents. ----------- 10 16.08.2011 The petitioner in this writ application seeks her release from the Nari Niketan (After Care Home) at Gaighat, Patna City. She is adult and has with her a child, Rishav aged about 4½ years. We have examined the case more on humanitarian grounds than legal as the records of this case would reveal that on several dates we have heard the matter in Chambers where petitioner was present as were her husband and her parents. Briefly stated facts giving rise to this case is that the petitioner was married to respondent no.2, Rajesh Prasad Gupta. They have two children. The elder, being a boy of about 6½ years, namely, Akash and the second Rishav, who is about 4½ years. Petitioner was found missing from the house with her younger son and F.I.R. was lodged by her father-in-law, that is, father of Rajesh Prasad Gupta, husband inter alia alleging that probably one Ajit Prasad @ Manti Prasad, who used to be in the neighbourhood shop, has enticed her away. Police having registered Nasariganj P.S. Case No.23 of 2011 started investigation. 2 Petitioner alleges that, in fact, she had left her matrimonial home because of mistreatment and run away. She first took a train and was given shelter by a lady at Nagpur where she learnt about the present case and, allegedly, wrong involvement of Ajit Prasad @ Manti Prasad by her father-in-law. Accordingly, she came to Nasariganj Police Station and from there went to the Court where her statement under Section-164 Cr.P.C. was recorded. In the said statement, she clearly disclosed that she had left her matrimonial house on her own will and the said accused Ajit Prasad @ Manti Prasad was innocent and had nothing to do with her escaping. In her statement, she had stated that she would like to go with her friend Varsha Devi @ Sunita. She did not express her desire to go either to her parental house or to her matrimonial house. The Magistrate seeing plight of a young lady with a child and being concerned about her safety forwarded her to Nari Niketan (After Care Home) at Gaighat, Patna City and it is from there she has filed this writ application. When the writ application was listed before us, we made enquiries as to who had sworn the affidavit and learnt that it was the Advocate’s Clerk who had sworn the affidavit. We then enquired from where the Vakalatnama was received by the Advocate and, upon our persistent query, it revealed that the necessary pairvi was being done by one Vimlesh Kumar Ravi on behalf of the petitioner. We asked the petitioner about the relationship then she disclosed that Vimlesh Kumar Ravi a 3 resident of Ranchi happened to be the husband of her friend Sunita whose name is Varsha Devi. We asked the petitioner as to how she be friended Sunita, she disclosed that after her marriage when she used to go to the local market she had met this lady Sunita, who was not married at that time, and they had been good friends for a long time. When we asked her parents and her husband about this both of them unambiguously stated that they had never heard of this friendship. Her husband, Rajesh Prasad Gupta clearly stated before us that this Vimlesh Kumar Ravi and Sunita had been set up by Ajit Prasad @ Manti Prasad. We asked for the presence of Vimlesh Kumar Ravi for two reasons. Firstly, to ascertain the relationship and secondly to check his bona fides as to his claim that he was ready to support the petitioner fully and finally. Vimlesh Kumar Ravi with his wife appeared and filed an affidavit clearly stating that he is ready to give a job to the petitioner in his business for Rs.5000/- per month at Ranchi and support her as long as she required the support. As to the friendship, apart from stating that she was known to his wife they could not really establish anything further. The husband of the petitioner filed an affidavit clearly stating that, in fact, the entire thing is maneuvered by the said Ajit Prasad @ Manti Prasad. Vimlesh Kumar Ravi is the resident of Garhwa district where Ajit Prasad @ Manti Prasad’s brother-in- law resides. Petitioner is actually walking into the hands and supposedly being rescued by Ajit Prasad @ Manti Prasad who has 4 chosen to stay away from these proceedings. We do not express any opinion about the relationship as between petitioner, Ajit Prasad @ Manti Prasad or Vimlesh Kumar Ravi or for that matter his wife Varsha Devi @ Sunita because petitioner appears to literate and grown up enough being major to take her own decisions. It is not open for this Court to impose upon her decisions. But, this Court is genuinely concerned with the welfare of Master Rishav aged about 4½ years old her minor child. The Court feels that as the petitioner’s own future is uncertain and precarious it would not be in interest of the minor child to be left with her. This is especially so because as we have noticed earlier she has herself abandoned her elder child, who is about 6½ years old with her husband, and has no complaint in that regard. Here, we may note one another important fact. Petitioner’s father was here in all proceedings except the last. He clearly stated to the Court that there was no question of any mistreatment meted out to the petitioner by her husband or any other relation at her matrimonial house. He was embarrassed to admit that, in fact, she had undue liking for Ajit Prasad @ Manti Prasad which was obviously disapproved by everybody. In our presence, he vehemently requested the petitioner to return to her matrimonial home or to them and all would be forgotten but she was adamant not to return, not only that she was adamant not even to go with her father. She wanted to be left alone to live at Ranchi 5 under the sponsorship of Vimlesh Kumar Ravi. We, having considered the matter, direct that the petitioner, being a major and capable of taking her own decisions, cannot be kept in the Nari Niketan (After Care Home) against her wishes. She must be released/permitted to go wherever she likes. But, so far as the child Master Rishav is concerned, as we have recorded in our earlier order dated 09.08.2011 to which she had no objection, she cannot go with Rishav or take him with her. Rishav would be handed over to his father so that he can be brought up along with his brother under father’s care. It is not disputed that the father’s family has sufficient means to bring them up. She does not claim any maintenance for herself. In fact, both the children were studying in St. Xavier School, Nasariganj when this unfortunate incident took place. Before parting, we would like to make it clear that petitioner, Minakshi Devi, being the mother of the two children, as noted above, would have free access of visitation in respect of the two children but within the premises of matrimonial home and in presence of an elder of the house. She will never be obstructed by her in-laws in this regard. She may also a talk to them on phone which would not be discouraged. Of course, if she wants to get back to her matrimonial house and stay there she could make a request in that regard as well. She would keep not only her father but her husband duly informed about her whereabout so that if in future children wants to meet her she can be traced. 6 In case of any dispute as between the parties, the parties would be at liberty to move appropriate forum for redressal of their grievances primarily the Principal Judge, Family Court at Rohtas in relation to the matrimonial discord, custody of child or any such matters. With these observations and directions, the writ application is, accordingly, disposed of. Trivedi/ (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)