14 Jun 2121

Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state - Bombay High Court

Case : Junned Ahmed Mujib Khan v. The State of Maharashtra and Ors. Criminal Writ Petition No. 381 of 2021

Court : Bombay High Court

Bench : Justice V.K. Jadhav and Justice Shrikant D. Kulkarni

Decided on : 14 Jun 2121

Relevant Statutes

Article 226 of the Constitution of India

Section 363 of the Indian Penal Code, 1860

Brief Facts and Procedural History

1. The present writ petition is about the pa petitioner seeking issuance of the writ of a Habeas Corpus against the respondents directing them to produce his minor daughter namely Khaleda Subiya Junned Ahmed Khan and to hand over her custody to him.

2. According to the petitioner, his minor daughter was kidnapped from Aurangabad on 22.10.2019. Consequently, his brother-in-law has lodged the report with Chawani Police Station, Aurangabad under which FIR bearing No.339 of 2019 was registered against an unknown person for the offence punishable under Section 363 of the Indian Penal Code, 1860

3. After few days the petitioner’s wife had informed the concerned police station and pointed out that Furkan S/o Sannulla Kahn is responsible for the incident and he has kidnapped their minor daughter in collusion with his parents and other accused persons.

4. The concerned police station recorded the statement of the petitioner and his wife, however, despite recording the statement of the petitioner and his wife, the concerned Police Station has not proceeded to take steps to ffind out the whereabouts of their daughter.

5. The petitioner has approached the concerned police station for enquiry, several times. However every time they were informed that the necessary steps are being taken to search their daughter and the petitioner will be informed when his daughter is found.

6. As mentioned by the petitioner, the police authorities for the reasons best known to them were not proceeding with the investigation of the crime in its true spirit and consequently, their minor daughter could not be traced out.

7. Resultantly, the petitioner is constrained to approach this Court for seeking the writ Habeas Corpus against the respondents in the facts and circumstances of the present case.

8. By order 12.03.2021, this Court has directed respondents No.2 and 3, Police Authorities to search and produce the minor daughter of the petitioner namely Khaleda before the Court. Thereafter, the court has monitored the progress from time to time and recorded the same in order.

9. On 10.06.2021 the missing girl was produced before the court. The missing girl was brought to the Court along with their child and was accompanied by her mother-in-law Sultana and father-in-law Sannulla Khan. It was revealed that the child born to the missing girl on 13.09.2020, admittedly, she was nine months short of becoming an adult. As stated by the missing girl, she got married on 03.06.2021.

10. The learned counsel for the petitioner submits that in the peculiar facts of the present case, it would be just and proper to invoke the ‘parens patriae' doctrine.

The Issue of the Case

Whether the marriage was valid?

Whether the doctrine of parens patriae applied to the facts and circumstances of the present case?

 The Observations of the Court

1. The Honourable Supreme Court in the case of Shafin Jahan vs. Asokan K.M. and others (2018) 16 SCC 368, observed that the superior courts can exercise their jurisdiction parents patriae in a case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of the parents to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state North society camp intrude into that domain.

The Decision held by the Court

1. The Honourable High Court held that the girl Khaleda Subiya Junned Ahmed Khan is at liberty to pursue her further activities and to live her by with law.

2. They accordingly discharged the Rule of Habeas Corpus and dispose of this writ petition.

Click here to view/download the judgement >