IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 WP(Crl.).No. 468 of 2010(S) --------------------------- PETITIONER(S): --------------- JAYAKUMAR, S/O.VISWANATHAN, AGED 49 YEARS, RESIDING AT TC 49/239, (SNRA-129)-PANAVILA, KALLATHUNAGAR, KALIPPANKULAM, MANACAUD VILLAGE, MANACAUD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SANTHAN V.NAIR SRI.G.ANIL KUMAR (MANACAUD) SRI.V.V.MITHUN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN-695 001. 2. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, THYCAUD P.O., TRIVANDRUM-695 014. 3. THE CIRCLE INSPECTOR OF POLICE, FORT POLICE STATION, FORT P.O.-695 001, TRIVANDRUM. 4. THE STATION HOUSE OFFICER, FORT POLICE STATION, FORT P.O., TRIVANDRUM, PIN-695 001. ADDL. 5. AMEER. A., S/O. ABOOBACKER, 12/48, PARUTHIKUZHI, POOTHURA P.O., THIRUVANANTHAPURAM. ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 20/12/2010 IN I.A.NO.17622/2010. BY SR. GOVT. PLEADER SRI. K.J. MOHAMMED ANZAR ADV. SRI.K.PRAVEEN KUMAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(Cri) No. 468 of 2010-S ------------------------------------------------- Dated this the 20th day of December, 2010 JUDGMENT Basant,J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his daughter `Jiji', aged above 19 ½ years (date of birth - 22/5/91). She is a student of the final year General Nursing Course at KIMS Hospital, Trivandrum. She was found missing from 22/11/10. The petitioner's wife i.e., the mother of the alleged detenue had expired recently. The alleged detenue was found missing from 22/11/10. As the efforts made by the petitioner directly and through police to trace the alleged detenue did not succeed, the petitioner came to this Court with this petition on 30/11/10. 2. This petition was admitted on 1/12/10. Notice was ordered to the respondents. The matter came up for hearing W.P.(Cri) No. 468 of 2010 -: 2 :- later on 10/12/10 and 15/12/10. 3. One Ameer had appeared before this Court through a counsel on 15/12/10. He submitted that he has not been arrayed as party with oblique motive. The alleged detenue and the said Ameer are in love. They have decided to get married. He undertook to produce the alleged detenue before Court on 20/12/10 and accordingly the case was posted to this date. 4. Today, when the case came up for hearing, the petitioner is present along with the younger brother of the alleged detenue. The petitioner is represented by his counsel. Ameer, referred to earlier, has appeared before this Court. He has filed I.A.No.17622/10. We have heard the counsel. That petition is allowed and the said Ameer is arrayed as the additional 5th respondent. 5. As the alleged detenue has come to Court along with the said Ameer and the petitioner apprehends that his daughter is under the illegal detention/custody, we permitted the alleged detenue to remain alone in the Chamber with no opportunity for the said Ameer to influence her in any manner. We, however, permitted the petitioner and his son to interact with the alleged detenue. During the pre-lunch session, the father/the petitioner and the daughter/the alleged detenue were thus permitted to have interactions in the presence of the brother of the alleged W.P.(Cri) No. 468 of 2010 -: 3 :- detenue. 6. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of the petitioner. Subsequently, we interacted with them in the presence of the said Ameer i.e., the additional 5th respondent. The learned counsel for the petitioner, the learned counsel for the additional 5th respondent and the learned Government Pleader were also present. 7. The alleged detenue and the said Ameer submit that they have fallen in love. They have decided to get married. As they belong to two different religions - the alleged detenue is a Hindu and the said Ameer is a Muslim, they could not get their marriage solemnized and registered so far. They have given notice under the Special Marriage Act. Such notice has been given on 30/11/10 before the Sub Registrar, Trivandrum. The alleged detenue and Ameer will be able to get their marriage solemnized and registered only on or after 30/12/10. The said Ameer and the alleged detenue assert that they have no intention at present of any religious conversion. They want to get married as Hindu and Muslim under the Special Marriage Act. The alleged detenue is a student of the final year General Nursing Course at KIMS Hospital, Trivandrum. Both the alleged detenue and the said Ameer assert before us that the W.P.(Cri) No. 468 of 2010 -: 4 :- alleged detenue shall continue her education. It is further stated before Court that till the marriage takes place, the alleged detenue and Ameer shall not cohabit as husband and wife. The alleged detenue is living along with a friend of the said Ameer - by name Siraj at Manjeri. They agree that till they get married in accordance with law, they shall not cohabit as husband and wife. If sufficient time were given, they shall get their marriage solemnized and registered under the Special Marriage Act, they submit. 8. The petitioner/father, after his interactions with the alleged detenue, states before us that he is now satisfied and convinced that the alleged detenue is not under any illegal confinement or detention. He does not now want to raise any objection against the marriage between the alleged detenue and the said Ameer. Appropriate safeguards may be insisted. It may be insisted that the marriage takes place in accordance with law and only thereafter the alleged detenue and the said Ameer/ the additional 5th respondent, are permitted cohabit as husband and wife, it is submitted. 9. We have considered all the relevant inputs. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenue is under any illegal detention or confinement. We are satisfied W.P.(Cri) No. 468 of 2010 -: 5 :- that the alleged detenue, an adult major woman, aged above 19 ½ years, is not under any illegal confinement or detention. We respect her decisional autonomy. We are satisfied that she can be permitted to leave with the additional 5th respondent. 10. The learned Government Pleader submits that on 1/12/10 the alleged detenue had appeared before the learned Magistrate having jurisdiction and the learned Magistrate had permitted the alleged detenue to leave Court along with the additional 5th respondent, the learned Magistrate having satisfied himself that she is not under any illegal detention or confinement. 11. We are satisfied, in these circumstances, that no further directions are necessary in this writ petition, we having satisfied ourselves that the alleged detenue is not under any illegal confinement or detention. 12. In the result: (a) This writ petition is dismissed. (b) The alleged detenue, who has come to Court along with the additional 5th respondent, is permitted to leave this Court along with the additional 5th respondent as desired by her. (c) We accept the submission of the alleged detenue and the additional 5th respondent that their marriage in accordance with the provisions of the Special Marriage Act shall be W.P.(Cri) No. 468 of 2010 -: 6 :- solemnized and registered on or after 30/12/10. We accept their further submission that till such marriage is solemnized and registered, they shall not cohabit as husband and wife and that till then, the alleged detenue shall be accommodated at the house of the friend of the additional 5th respondent - Siraj by name, at Manjeri. (d) We accept the submission of the alleged detenue and the additional 5th respondent that on the next date of posting, they shall produce before Court the marriage certificate issued under the Special Marriage Act along with a copy thereof for being furnished to the petitioner. 13. Call this petition again on 14/1/11 for the alleged detenue and the additional 5th respondent to appear before us along with the marriage certificate and a copy thereof. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge W.P.(Cri) No. 468 of 2010 -: 7 :- W.P.(Cri) No. 468 of 2010 -: 8 :- R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(Cri) No. 468 of 2010-S ------------------------------------------------- Dated this the 15th day of December, 2010 ORDER Basant,J. A counsel appears for Ameer, the person with whom the alleged detenue had appeared before the learned Magistrate. He is filing an application to get impleaded in this writ petition, it is submitted. The learned counsel Sri.K. Praveenkumar submits that if the case is posted to 20/12/10, the alleged detenue and the said Ameer shall appear in person before this Court. We accept the submission of the learned counsel and post the case to 20/12/10 for appearance of the alleged detenue along with the said Ameer. R. BASANT (Judge) K. SURENDRA MOHAN (Judge) Nan/ W.P.(Cri) No. 468 of 2010 -: 9 :- R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(Cri) No. 468 of 2010-S ------------------------------------------------- Dated this the 10th day of December, 2010 ORDER Basant,J. The learned Government Pleader submits that subsequent to the filing of this petition, on 1/12/10 the alleged detenue had appeared before the learned Magistrate and the learned Magistrate had set her at liberty. The learned counsel for the petitioner submits that the petitioner or the other relatives of the alleged detenue did not have occasion to interact with the alleged detenue. They still feel that the alleged detenue is under illegal detention. 2. The learned Government Pleader submits that the police require some further time to ensure that the alleged detenue is traced and she appears before this Court . We grant the police time to trace the alleged detenue and ensure her appearance before this Court. 3. Call on 15/12/10. W.P.(Cri) No. 468 of 2010 -: 10 :- R. BASANT (Judge) K. SURENDRA MOHAN (Judge) Nan/