IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.91 of 2011 AKHILESH KUMAR YADAV @ AKHLESH KUMAR YADAV Versus THE STATE OF BIHAR AND ORS. ----------- 2. 24.1.2011 Heard Sri Diwakar Prasad Singh, learned counsel for the petitioner and Sri S.D.Sanjay, AAG-12, for the respondents. In this case the petitioner is a helpless husband who being failed everywhere has come before this court and filed an application for issuance of a writ of habeas corpus directing the respondents to present his wife and daughter of one and half years old who are presently languishing in Uttar Raksha Griha, Gayghat, Patna. The wife and daughter of the petitioner are being detained at Remand Home under the judicial order passed by the Judicial Magistrate, Ist Class, Saharsa in connection with Saharsa P.S.Case No.94 of 2008, G.R.Case No.358 of 2008. It seems that Puja Kumari, daughter of respondent no.5 Sambhu Choudhary got married with petitioner Akhilesh Kumar Yadav @ Akhlesh Kumar Yadav without there being any consent of her parents. She left her parents house deciding 2 her own future and solemnized marriage. This was not accepted by respondent no.5 and he instituted a case bearing Saharsa P.S.Case No.94 of 2008 under Section 366A of the IPC alleging abduction of his minor daughter Puja Kumari by the petitioner. After getting married the petitioner and Puja Kumar started living as husband and wife and she became pregnant. However, both of them were apprehended by the police. Petitioner was sent to jail and Puja Kumari was produced before the Magistrate of Ist Class, Saharsa. She had given birth to a female child, who was one and half years, when she was produced before the Magistrate on 12.7.2010. On her production, her statement was recorded by the Magistrate under Section 164 of the Cr.P.C. On 12.7.2010 in which she fairly disclosed that she is living with her husband in Jharkhand and she has already met with her parents. Her age was also assessed by the doctor and she claimed to be 21 years of age but as per the medical report Annexure-5 her age was assessed between 17 to 19 years. Whatever, could be the age of Puja Kumari, whether she was below 18 or has 3 crossed 18 years, this is a fact that she has given birth to a child and the interest of child was also involved in this case. The Magistrate completely overlooked these aspects and instead of releasing her he passed order for sending Puja Kumari along with her daughter to Remand Home. This was completely an order without jurisdiction in the light of the decision of the Supreme Court of Jaya Mala Vrs. Home Secretary Govt. of J & K. AIR 1982 SC 1297. In similar situation, it has been held by the Apex Court that even if the girl is below 18 years but she has got married, started living as husband and wife, she should be allowed to go to the husband. In the present case, even the father of Puja Kumari who is the informant of Saharsa P.S.Case No.94 of 2008 had filed a petition on affidavit before the court that he is not willing to take his daughter back to his home and she should be released to go to her husband’s place, start living there and the husband should be asked to keep her as well as her daughter. Considering the fact stated above, 4 the Superintendent, Remand Home, Gai Ghat, Patna City, is directed to release Puja Kumar at once so that she may go along with her daughter to her husband and live with him at any place of her choice. The order passed on 15.11.2010 by the Judicial Magistrate Ist Class, Saharsa in connection with Saharsa P.S.Case No.94 of 2008 Annexure-7 is quashed. This application is allowed. Let this order be communicated to the court concerned through fax at the cost of the petitioner. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)