IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(Crl.).No. 256 of 2010(S) --------------------------- PETITIONER(S): --------------- SAROJINI @ ALEYAMMA,W/O.YESUDAS, KUTTIYIL THEKKETHIL VEEDU,EDAKKULANGARA.P.O, KARUNAGAPPALLY. BY ADV. SRI.S.SOMAN SRI.R.SELVAKUMAR RESPONDENT(S): 1 ---------------- 1. S.AJAYAN,S/O.SUNDARANA,MARAMMELIL THEKKATHIL,VADAKKUMTHALA.P.O,PANMANA,CHAVARA, KOLLAM DISTRICT. 2. THANKAMMA,BYJU BHAVAN,KUNNATHUR.P.O, KOLLAM TALUK,KOLLAM DISTRICT. 3. S.I.OF POLICE,KARUNAGAPPALLY. 4. DYSP,OFFICE OF THE DYSP,KARUNAGAPPALLY. ADV. SRI.B.MOHANLAL FOR R1 &2 SRI.C.SINOY FOR R1 & 2 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No.256 of 2010 ---------------------------------------- Dated this the 13th day of July 2010 J U D G M E N T Basant,J This judgment must be read in continuation of our order dated 07/07/2010. 2. When the case is called, the petitioner and her husband are present. They are represented by a counsel. Respondents 1 and 2 have appeared before Court. They are both represented by a counsel. The alleged detenue, who was accommodated at the Shantinikethan hostel as per our order dated 07/07/2010 has also come to Court today. 3. We are informed that the petitioner and her husband did avail of the opportunity to meet, interact, guide and counsel the alleged detenue Ms.Anu at the Shantinikethan hostel after the last date of posting. We interacted with the alleged detenue Ms.Anu. She is emphatic and assertive that she does not want to go with her foster parents, that is the petitioner and her husband. According to her, she was employed earlier. She now hopes to secure an employment in a Photocopier shop at Kollam. W.P.(Crl) No.256/10 : 2 : She wants to reside in the Working Women's hostel run by the Quilon Mahila Co-operative Society Ltd. She has already made arrangements to secure admission to the said Working Women's Hostel. A receipt dated 09/07/2010 No.11447 issued by the said Co-operative Society to evidence payment of an amount of Rs.1,600/- including admission fee, advance security and advance rent is produced to confirm that she has so secured admission to the hostel. She submits that she is an adult major woman and that her preference about her future may be recognised and accepted. The petitioner and her husband aired an apprehension that the alleged detenue may fall into bad hands and may indulge in unworthy life if she were to leave them and reside in the hostel. The petitioner and her husband aired the apprehension that respondents 1 and 2 may collude together and misuse the alleged detenue Ms.Anu. In these circumstances, it is prayed by the petitioner and her husband that even if Ms.Anu is not sent along with the petitioner and her husband, this Court may ensure that she is safely accommodated in some hostel. The alleged detenue is unwilling to adopt such course. W.P.(Crl) No.256/10 : 3 : 4. Respondents 1 and 2 have appeared before Court through counsel. The 1st respondent as also the alleged detenue submit before Court that they would like to eventually get married and live as husband and wife; but they accept that the 1st respondent has now a wife living and that, in these circumstances, it may not be possible for him to get married to the alleged detenue, in accordance with law. It is submitted at the Bar that the present wife of the 1st respondent - one Sarthika, had already filed an application for divorce as O.P.No.456/08 before the Family Court, Kollam and orders are expected in that O.P. If the 1st respondent gets a divorce and becomes eligible to contract another marriage, the 1st respondent and the alleged detenue want to get married to each other, it is submitted. The second respondent, the maternal aunt of the 1st respondent also submits that the alleged detenue can get married to the 1st respondent after he becomes eligible in law to contract such marriage after securing divorce from his present wife. 5. In a petition for issue of a writ of habeas corpus, we are primarily concerned only with the question whether the W.P.(Crl) No.256/10 : 4 : alleged detenue is under illegal confinement or detention. We have ascertained the response of the alleged detenue on 07/07/2010. We wanted her to think, contemplate and give us her response today after allowing her to remain at an independent venue from 07/07/2010 to this date. Even thereafter, she asserts that she does not want to return along with the petitioner and her husband. She asserts that she wants to be on her own, reside independently in a hostel and then work and earn her livelihood. She wants to stand on her own feet. She does want to get married to the 1st respondent. But she states that she will so get married only after the 1st respondent secures a divorce. We are not concerned with the morality, propriety or ethicality of the decision of the alleged detenue or the 1st respondent. We are satisfied that the alleged detenue is not under any illegal confinement or detention. Having so satisfied ourselves, we are satisfied that no further directions are necessary in this writ petition. He hope that better sense will prevail and the alleged detenue shall not embark on any misadventure which is morally, legally and ethically W.P.(Crl) No.256/10 : 5 : unacceptable. However, in the light of the adamant stand taken by her, notwithstanding our sympathy for the petitioner and her husband - foster parents of the alleged detenue, we are satisfied that this writ petition need only be dismissed now. In the result, a) This writ petition is dismissed. b) The alleged detenue Ms.Anu is informed that she is at liberty to follow whatever course she thinks is best for her. 6. We record her statement that she wants to get accommodated at the Working Women's hostel run by the Quilon Mahila Co-operative Society Ltd. and that she will not contract any marriage with the 1st respondent before he becomes eligible in law to contract such a marriage. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.(Crl) No.256/10 : 6 : W.P.(Crl) No.256/10 : 7 : R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No.256 of 2010 ---------------------------------------- Dated this the 7th day of July 2010 O R D E R 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 her adult major foster daughter Anu, aged 22 years (date of birth : 31/05/1988). She has passed V.H.S. course. She was working in a photostat shop at Karunagappally since 2007. She was missing from 30/5/2010 and the petitioner apprehended that her foster daughter, the alleged detenue, was being illegally detained by the first and second respondents. The 1st respondent is a married person and the petitioner apprehended that the 1st respondent was illegally detaining and confining her daughter, the alleged detenue, in collusion with the second respondent to compel her to marry him. Though a crime was registered, the police did not succeed in tracing the alleged detenue and it is, in W.P.(Crl) No.256/10 : 8 : these circumstances, that the petitioner came to this Court with this petition on 29/6/2010. 2. This petition was admitted on 30/6/2010 and notice was ordered to the respondents. 3. Today when the case is called, the petitioner is present. Her husband Sri.Yesudas has also come to Court along with her. She is represented by a counsel. 4. The 1st respondent has not appeared in person before this Court. His aunt, the second respondent, has appeared before Court and a counsel has entered appearance for both respondents 1 and 2. It is submitted at the Bar that the real name of the 1st respondent is Jayan and not Ajayan. 5. As the alleged detenue comes to Court along with the second respondent, who is allegedly confining and detaining her, we permitted the alleged detenue to remain alone in the Chamber without opportunity for anyone to influence her. We accepted the request of the petitioner and her husband for opportunity to interact with the alleged detenue. W.P.(Crl) No.256/10 : 9 : 6. After the lunch recess, we interacted with the alleged detenue. The alleged detenue states before us that she has nothing to do with the 1st respondent. She only knows the 1st respondent . She is now residing with the second respondent. She does not want to go along with the petitioner and her husband, her foster parents. She has her own reason for the same. 7. The learned counsel for the petitioner submits that this version of the alleged detenue is, on the face of it, false and unacceptable. The learned counsel relies on the statement given by the alleged detenue before the Police and the learned Magistrate when she was produced before the learned Magistrate wherein she had unambiguously stated that she wants to return from the court along with the 1st respondent and wants to marry him. 8. The 1st respondent is a married person. He cannot contract another marriage. The petitioner and her husband as foster parents are genuinely interested in the future and welfare of the alleged detenue. The alleged detenue is, at present, in a W.P.(Crl) No.256/10 : 10 : spell. She is not able to take proper decisions affecting her future. In these circumstances, this Court may not be pleased to accept the statement of the alleged detenue that she wants to leave along with the second respondent. It would be illegal and immoral to permit the alleged detenue to return along with the 2nd respondent to facilitate her joining the 1st respondent, a married person, submits the petitioner. 9. We interacted with the alleged detenue alone initially and later in the presence of the petitioner and her husband. Later, we interacted with the alleged detenue in the presence of the second respondent. The learned counsel for both sides and the learned Government Pleader were also present. 10. We do not want to express any authentic opinion on the acceptability of the statements made by the alleged detenue. However, we note that, after the interactions with all concerned, the parties appear to have reached certain agreement/undertaking. Accordingly, as agreed by them, we issue the following directions: i) The alleged detenue, Anu, shall be accommodated till W.P.(Crl) No.256/10 : 11 : the next date of posting, at the Shantinikethan hostel, near Lourde hospital, Pachalam. ii) Till the next date of posting, the petitioner and her husband shall be at liberty to call on the alleged detenue and interact with her, in accordance with the rules of the hostel. They shall be permitted to meet the alleged detenue, advise, counsel and guide her. But the alleged detenue shall not be put to any mental or physical harassment by them in the course of such personal interactions. iii) The expenses for such accommodation of the alleged detenue at the said hostel shall be met by the second respondent. The learned counsel, after discussions with the second respondent and others, agree that the second respondent shall meet such expenses. iv) The second respondent prays for opportunity to interact with the alleged detenue while she is at the hostel. She is also given such permission. 11. Call this petition again on 13/7/2010 at 1.45 p.m in the chamber. The response of the alleged detenue shall be W.P.(Crl) No.256/10 : 12 : ascertained on that date. We direct the petitioner as also respondents 1 and 2 to appear before this Court on that date. 12. The learned Government Pleader agrees that the alleged detenue shall be taken to the Shantinikethan hostel by a woman police constable, not in uniform and she shall be brought to Court also on 13/7/2010. 13. Hand over copy of this order to the learned Government Pleader. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) ks. W.P.(Crl) No.256/10 : 13 : W.P.(Crl) No.256/10 : 14 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009