Interfaith Marriage- "Habeas Plea Not Maintainable On Apprehension Of Communal Tension": Allahabad HC Dismisses Girl's Father Plea

The Allahabad High Court recently dismissed a habeas corpus plea filed by a father seeking the production of his daughter and a direction to set her free from the illegal detention of a man, a Hindu by religion.

Taking into account the apprehension of the father regarding communal tension in the garb of a threat, if the alleged detenue is not handed over to him, the Bench of Justice Vikas Kunvar Srivastav observed thus:

"...merely on the apprehension in the garb of an implied threat of communal tension in the village for the reason of different religions of the couples, no writ of habeas corpus can be issued in favour of the petitioner next friend, 'Usman', father of the alleged detenue."

The case in brief

One Usman (father of the girl/detenue) filed a writ petition of Habeas Corpus alleging that his 16 years old daughter left her home in November 2020 for going to her maternal uncle's home but she did not reach there and instead, she was taken away by a Hindu Boy (Opposite number 3) and he kept detained her in some lonely place.

Filing its response in the matter, the State Government submitted that an FIR was registered by the father of the girl under sections 363 and 366 of the Indian Penal Code, however, later on, it was found that she wasn't minor, and instead, on the alleged date was 19 years 7 months.

It was further submitted that statements of the victim under Sections 161 and 164 of the Cr.P.C. were recorded, that she left the home on her own. and therefore, the Magistrate, finding her an adult person set her free to go wherever she wants and hence, she opted to go with the family members of the opposite party no.3, Vineet Kumar.

She being an adult desired not to go with her parents. Consequent to the said order, the Investigating Officer let the alleged detenue to go with whom she wanted to go.

Court's order

At the outste, the Court noted that the order of the Magistrate was not challenged anywhere, despite it being in the knowledge of the petitioner.

"This inaction to challenge the proceeding implies strongly that the writ petition is moved with suppression of facts and concealment of essential information, do not deserve to be entertained as petition did not come with clean hands," the court said as it noted that the father of the alleged detenue very well knew that her daughter being major, went with the opposite party No.3 on her own as they wanted to marry each other.

The Court also observed that the willful concealment of the facts of which the petitioner had knowledge since before filing of the petition seeking relief of Habeas Corpus was malafide.

"As such, a fraud is committed upon the court for the purpose of seeking advantage by the petitioner, (next friend). He did not come before the court with clean hands," the Court added.

Further, noting that the thrust of filing the habeas corpus plea was also upon an unfounded apprehension in the garb of an implied threat of communal tension in the village as the alleged detenue and opposite party no.3 belong to different religions namely Muslim and Hindu respectively, the Court, to eradicated the apprehension of the petitioner, directed the Director General of Police and the local police officers to ensure the law and order as well peace and tranquility in the locality is maintained.

Importantly, the Court also directed the Director General of Police, U.P. to keep vigil over the society in the locality and to ensure that the couple are not harassed by anyone, nor subjected to threats or acts of violence and anyone who gives threats or harasses or commits act of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action taken against such persons as provided in the law

With this, the plea stood dismissed.

Case title - Km. Hashmi Thru. Her Father Natural Guardian Usman v. State Of U.P. & Ors.

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