CIVIL

ISHMATARA SHARAFATHUSSAIN SHAIKH Versus STATE OF GUJARAT & 5.[ Gujrat 2017 December]

Keywords:- Live – In – Relation- Habeas Corpus-

Gujrat High Court

‘Live-in relationship’ without parents’ consent not illegal, only requirement being ‘majority’ and ‘free consent’

  • We have considered the aspect that the corpus is an adult and is capable of taking her own decisions regarding her life and future. She has voluntarily chosen to go with respondent No.4, knowingly, in spite of the opposition from her parents and the parents of respondent No.4. Respondent No.4 is equally adamant to stay with the corpus. We, therefore, have no other option but to permit the corpus and respondent No.4 to leave together.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 8778 of 2017

ISHMATARA SHARAFATHUSSAIN SHAIKH….Applicant(s)
Versus
STATE OF GUJARAT & 5….Respondent(s)

CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI and HONOURABLE MR.JUSTICE B.N. KARIA

Date : 04/12/2017

ORAL ORDER

(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)

1. Rule. Ms.Jirga D. Jhaveri, learned Additional Public Prosecutor waives service of notice of Rule for respondents Nos.1 to 3. Respondents Nos.4, 5 and 6 are resent in person and have appeared before the Court.

2. This Habeas Corpus petition under Article­226 of the Constitution of India has been preferred by the  petitioner, who is the mother of the corpus, Sabiya, with a prayer to issue directions upon the respondents to produce her daughter, aged twenty years, before this Court.

3. It is the case of the petitioner that her daughter, Sabiya, went missing from her house on 30.08.2017 when, under the pretext of some work, she had gone out of the house. However, she did not return. According to the petitioner, her daughter has been illegally abducted and confined by respondent No.4 with the aid of his brother respondent No.5 and father, respondent No.6.

4. It is stated in the petition that the petitioner got a phone call from Mobile No.9173501212 from respondent No.5, the brother of respondent No.4, threatening her to pay an amount of Rs.5,00,000/­, failing which they would sell her daughter. The petitioner lodged a Janvajog entry at Isanpur Police Station on 01.09.2017, which was registered as 63/2017. Thereafter, the petitioner also sent a fax message to the Commissioner of Police, Ahmedabad, on 24.10.2017. The Janvajog entry is not produced on the record of the petition till date. However, the Fax Message to the Commissioner of Police is produced as Annexure­A to the petition and contains no averment regarding the alleged ransom demand. According to the petitioner, as her daughter has been abducted and she apprehends a serious threat to her life, she is constrained to approach this Court by way of the present petition.

5. A copy of this petition was supplied to the office of the learned Public Prosecutor. On 17.11.2017, the petition was adjourned at the request of the learned advocate for the petitioner to 27.11.2017. On that date, Mr.Bhavik P. Shah, learned advocate for the petitioner had prayed for further time in order to produce the complaint/application submitted by the petitioner to the Police authorities, if any, regarding the alleged demand of ransom money by respondent No.5, as stated in the petition. However, such complaint has not been produced till date.

6. Ms.Jirga D. Jhaveri, learned Additional Public Prosecutor submits that upon an advance copy of the petition being served, the Police authorities have traced the corpus and respondent No.4, who are present in the Court today.

7.Though the petition was directed to be listed on 15.12.2017, however, a request is made by the learnedAdditional Public Prosecutor to take up the matter today, as the corpus is present. Accordingly, we have informed Mr.Bhavik P. Shah, learned advocate for the petitioner and directed the Registry to prepare a
separate Board.

8. Mr.Bhavik P. Shah, learned advocate for the petitioner has remained present, as has the petitioner.

9. We have spoken to the corpus, Sabiya, in Chambers. She has stated that she has known respondent No.4 for the past eight years as they were studying together in School. Feelings of love and affection developed between them and she wants to stay with respondent No.4. She has disclosed her desire to marry respondent No.4 but states that her parents are against the match due to the difference in religion between her and respondent No.4. She further states that her parents were forcibly getting her engaged to
some other person whom she does not like. As they would forcibly have got her married to that person, she took the step of leaving the house of the petitioner voluntarily, with respondent No.4. She states that she has not been abducted, threatened or illegally confined by respondent No.4 and has left the house of her mother voluntarily and of her own free will.

10. We have also spoken to respondent No.4 in Chambers. He has just completed the age of eighteen years in September, 2017, and is running nineteen years. As such, he has not yet attained the legally competent age to marry. The corpus has informed us that she and respondent No.4 have exchanged garlands in a temple and would get legally married when respondent No.4 attains the age of twenty­one years. Respondent No.4 has informed us that he wants to be with the corpus and would marry her when he attains the age of twenty­one years. He states that he and the corpus are living together of their own free will. Both are working and earning their own living. He states that he would take good care of the corpus and would marry her when he attains the age of twenty­one years, and that he would not abandon her under any circumstances.

11. Respondent No.6, father of respondent No.4 as well as his mother (who is not arrayed as a party in the petition) have been informed regarding the decision of the corpus and their son, respondent No.4.

12. Upon asking the corpus whether she would like to speak to her mother, she initially refused to do so. However, later she agreed and she spoke to the petitioner. The corpus has informed the petitioner that she does not want to go home and wants to go with respondent No.4, with whom she has lived for the last three months. She has stated that she cannot live without respondent No.4.

13. We have tried to impress upon the corpus the possible difficulties that she may face as a consequence of her decision, looking to the opposition to their relationship by the parents on both sides. However, she is firm in her decision to go with respondent No.4. Similarly, respondent No.4 has also informed his father, respondent No.6, that he would
like to live with the corpus. Respondent No.4 has submitted that his clothes, mobile handset and an amount of Rs.300/­ that was in his wallet, were taken away by his brother, respondent No.5. Respondent No.6, the father of respondent No.4 has, however, returned
the mobile handset, SIM Cards and Rs.300/­ to respondent No.4.

14. Both the corpus and respondent No.4 have denied making any telephone call to the petitioner for the alleged demand of ransom money. Apart from general averments, no material in support of this allegation has been placed on record by the petitioner. Even the Fax Message to the Police Commissioner does not contain such an allegation. Had it been true, the petitioner would definitely have stated so. We are of the view that such averments have been introduced in the petition only to give a more serious colour to the
matter.

15. The Court is faced with a situation where the corpus is aged twenty years and respondent No.4, with whom she has willing and voluntarily gone, has just completed eighteen years of age and is not yet twenty-one years. However, both of them are adults. The corpus and respondent No.4 are adamant in their stand that they would like to live with each other till such time that they can get married. They state that they may be permitted to leave the Court in each other’s company.

16. Neither the petitioner nor the parents of respondent No.4 are in favour of their relationship. The corpus and respondent No.4, therefore, do not want to live with the parents of respondent No.4.

17. We have considered the aspect that the corpus is an adult and is capable of taking her own decisions regarding her life and future. She has voluntarily chosen to go with respondent No.4, knowingly, in spite of the opposition from her parents and the parents of respondent No.4. Respondent No.4 is equally adamant to stay with the corpus. We, therefore, have no other option but to permit the corpus and respondent No.4 to leave together.

18. Accordingly, the corpus and respondent No.4 have left the Court premises together. The Police authorities may escort them to the Railway Station as per their request.

19. The petition is disposed of, in the above terms.

Rule is discharged.

(SMT. ABHILASHA KUMARI, J.)
(B.N. KARIA, J.)