Vinita vs Dr. Amar Nath Mishra and Another

S.K. Jha, S.B. Sanyal and P.S. Mishra, JJ.—A letter addressed to Hon''ble the Chief Justice purportedly written by one Vinita disclosed that she has been a minor taken into a second marriage by Dr. Amar Math Mishra who had a wife from before alive and Children from the first wedlock Treating the said letter as an application for a writ in the nature of habeas corpus, a rule nisi was issued calling upon the 1st respondent (hereinafter to be referred to as ''respondent''), Dr. Amar Nath Mishra, to show cause and directing for the production of the petitioner in safe custody before the Court. Vinita, second wife of the respondent, was accordingly produced before this Court on 30-3-89. Respondent, it appears, accompanied her and came to the Court premises but stayed away from the Court on the said date for the reasons best known to him. He along with three other persons remained all along with the girl outside the Court Room. She could get free access to the Court only when she was ushered in the Court Room. From her behaviour and demeanour we were not quite sure that she was fully in control of her mind and self and was not exercised by extraneous influence. According to our order dated 30-3-89, what we had been thinking aloud quite for some time is as to why Dr. Amar Nath Mishra (respondent) had chosen to remain away from the Court premises while he had accompanied the girl Vinita right from Bhagalpiir 10 Patna in his own car and what for those three persons accompanied her up to the doors of the Court Room. We ordered:

In the circumstances, we think it prudent and advisable that she may be given some breathing time to remain segregated from her present environment to compose herself well so as to be able to talk out of her own free will while in full possession of herself We, accordingly, direct the Principal Probational Officer, Mrs. Shanti Sinha, who has been good enough to be present here at our behest through Mr. Ashok Priyadarshi, her (Vinita''s) counsel, who is appearing amicus curiae in this Court, to take care of the girl until she is free from all extraneous influence.

After discussing the matter in all its ramifications, we came to the conclusion that it was in the best interest of everyone concerned--especially Vinita--that she be kept in the Female Ward of the Bankipore Central Jail giving her all facilities available to a Class A lady detenue. We, accordingly, directed the Superintendent of Jail to see to it that no outsider, excepting those who went there with the written permission of this Court under its due seal, was given any access to her.

On 31-3-89 respondent appeared. His first wife, Smt. Sheela Mishra, also accompanied him since a notice calling upon the respondent to show cause had already been served, and both Smt. Sheela Mishra and Dr. Amar Nath Mishra volunteered to depose. They were examined by the Court. Specimen handwriting of Vinita was put for identification to the respondent (Court witness No. 2) Dr. Amar Nath Miehra. The letter addressed to the Chief Justice was also put to him He denied the handwriting of his wife Vinita in the letter addressed to the Chief Justice but claimed that it was doubtful that the handwriting of Vinita marked ''X'' was her writing. In his deposition, however, Dr. Mishra stated that he was a Professor of Medicine in the Bhagalpur Medical College, a post borne in the cadre of the Bihar Health Services, that he had entered into Bihar Health Services in the year i960 and since the beginning of his service career he has been holding one or the other teaching post, and that his present emoluments were around Rs. 3000/- per month from the Government service besides income derived by running a private clinic of his own, which was around Rs. 80000/- per year. He admitted that his first wife Sheela Mishra was alive and he had two daughters who were already married, that he had a son who, however, was dead, and that he had a grandchild. He claimed to have married Vinita on 12th of December, 1988 at Deoghar in a private house, and that "I had not taken any permission from the Government of the State for marrying Vinita as my second wife" and "J knew that I was committing an offence when I married Vinita". Sheela Mishra, who has deposed as Court witness No. 1, stated that she was aged about 47 years and was married to Dr. Mishra about 37 years ago. She had a son who died. Although she and Dr. Mishra had 2 daughters and a grandchild from one of the daughters, since she could not bear a child any longer, she started looking for a bride for her husband so that they could get a son. According to her deposition, in course of the said search she learnt about Vinita and her father looking for a bridt groom for his daughter and sent for him. She had deposed that she completed the negotiations and settled a bride for her husband and, accordingly, a marriage was solemnised on the 12th of December, 1988 at Deoghar temple. She also stated that her husband was in the Government service presently posted in the Bhagalpur Medical College Hospital and was also running a clinic of his own successfully. Both Court witness No. 1 and Court witness No. 2 have stated the age of Dr. Mishra to be 52-53 years.

Vinita, when asked, denied to have written the letter marked ''Y'' to the Chief Justice Dr. Mishra deposed to the same effect by stating that the letter was not in his wife Vinita''s handwriting. The document marked ''X'', however, was the writing of Vinita taken before the Court, Dr. Mishra declined to identify the same as the writing of Vinita. The contents of the letter, however excepting part, were allegations that Vinita was a minor; that she was taken down against her will by Dr. Mishra in the name of her being his married wife; and that she had been cruelly treated by Dr. Mishra and other members of his family, which are established. Dr. Mishra had a wife when he took Vinita as his second wife. He had not taken Government''s permission for taking a second wife in the life time of his first wife. Bihar Government Servants'' Conduct Rules declare a second marriage in the life time of spouse as misconduct. Hindu Marriage Act declare such a marriage void. Dr. Mishra has admitted that he knew that it was an offence to take a second wife; yet he took a second wife.

Controversy as to Vinita''s age, however, has not been finally settled before us. Dr. Mishra, his wife Sheela Mishra as well as Vinita have asserted that the (Vinita) is about 20 years old. This Court directed for Vinita''s examination by Head of the Department of Gynaecology, Patna Medical College Hospital, Dr. (Mrs.) J. Mishra, to determine her age and to report as to whether she was above or below 19 years of age. Dr. (Mrs.) J. Mishra got a Medical Board constituted with herself, Dr. S.P. Jaiswal, Superintendent and H.O.D. of Radiology, Patna Medical College Hospital, Patna, and Dr. Vijay Kumar, Professor and H.O.D., Forensic Medicine, Patna Medical College Hospital, which Board examined Vinita on 3-4-89 at 12.30 P.M. in the office of Professor Jaiswal and recorded her height at 61 cms., weight 43 kgs. teeth-14 upper jaw and lower jaw 14, and built average. They thereafter made gyanecological examination and recorded menstrual history to conclude that "All the members are of the opinion that the person concerned, therefore, appears to be above 20 years of age". Dr. S.P. Jaiswal has, however, given a separate report on the basis of X-ray and other data which took her age between 16 to 30 years.

Vinita and Dr. Mishra (respondent) area glaring example of the evil still existing in our society. A couple that Dr. Amar Nath Mishra and Smt Sheela Mishra constituted had 2 grown up children and a grand child; yet a girl in Vinita was found to bear a male child, according to the deposition of the first wife of Dr. Amar Nath Mishra. That male child would be prima facie an offspring out of an illegal wedlock, whose birth would be as a result of an offence and yet Dr. Amar Nath Mishra got a so-called abnoxious marriage performed and took Vinita as a second wife. A 52-53 years old Professor of Medicine in. a Medical College and a member of the Bihar Health Services having taken a wife, if not less, aged about 20 years, it is difficult to countenance-particularly-by a Court of law, such a conduct of the respondent. Vinita, it appears, has come of age when she will not be called a child. We are not in a position to record any specific finding that she is less than 18 years of age. She is a free citizen and thus free to live her own life. But what a life respondent has given to her; will she not be a wife only in name? How shall the respondent compensate the injury he has already caused to her by taking her as a second wife knowing that the marriage was illegal and that it was an offence''? We do not know how Vinita shall conduct herself hereafter but cannot but deprecate respondent''s conduct, leaving it for the persons aggrieved to take recourse to law.

Application before us is in the nature of an application for a writ of habeas corpus. Yet our concern is for the girl who has fallen a victim of the social evil of a married man aged about 52-53 years taking a second wife only for begetting a son, if that be true.

Mr. Tara Kant Jha, learned Counsel for the respondent, has offered a scheme to protect her further interest, if not in other respects, at least to ensure financial stability by agreeing to make the respondent deposit a sum of rupees three lacs in the name of the petitioner (Vinita) so that she may receive at least Rs. 3000/- per month as interest thereon, invested in the following manner:--

(i) A sum of rupees one lac shall be deposited immediately in the local post office at Bhagalpur in the Post Office Monthly Income Scheme in the name of Vinita to derive a sum of rupees one thousand every month by way of interest and an additional bonus at the rate of 10 per cent per annum payable on maturity after six years, which amount of rupees one lac with bonus thereon shall again be re-invested in the Post Office Monthly Scheme if the same is continued or in any other similar scheme with the prior permission of the District Judge, Bhagalpur.

(ii) Another sum of rupees two lacs shall be deposited within four months from today with the District Judge, Bhagalpur, who shall invest the same in Indra Vikas Patra or current issue of National Saving Certificate (N.S.C.), whichever be found convenient and suitable, with re-investment scheme both of the interest thereon prior as also bonus, if any.

(iii) Vinita shall be entitled to draw a sum of rupees one thousand delivered as interest upon the deposit of rupees one lac in the Post Office Monthly Income Scheme for expenses from an account duly opened in her name in the Post Office in which account the interest amount shall be credited each month and maintained in her name by the Post Office.

(iv) Vinita shall, however, be not entitled to withdraw any amount of interest due on the deposit of rupees two lacs

(v) Vinita shall not be entitled to prematurely withdraw or encash either of the two deposits, that is to say, rupees one lac ill the Post Office Monthly Income Scheme or rupees two Uses in the Indra Vikas Patra or National Saving Certificate Scheme.

(vi) The District Judge, Bhagalpur, shall, on maturity of the said investments, ensure re-investment thereof without any delay andi for no loss of interest or bonus thereon and shall continue re-investing the same until a period of twenty years when Vinita''s wishes may be ascertained either for re-investment or withdrawal for her benefit and benefit of her heirs and legal representatives.

The above appears to us a quantum of solace to Vinita which the respondent Dr. Amar Nath Mishra, in our view, has made himself liable for. We, accordingly, accept the offer since this is an undertaking on behalf of the first respondent to the Court and direct the said respondent to complete the deposits of rupees one lac and two lacs respectively as aforementioned. Since we have no basis to hold that Vinita is a child below 18 years of age, we direct for her release forthwith. She is free to go by her will. Rule against the respondent is, however, discharged subject to the aforementioned undertaking. The application is, accordingly, disposed of.