IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(Crl.).No. 303 of 2009(S) --------------------------- PETITIONER(S): --------------- BIJU.V.J. AGED 36 YEARS, S/O. V.T.JOSEPH, VADATHURUTHEL HOUSE, PULINGOM VILLAGE, KANAMVAYAL POST, THALIPARAMBA TALUK. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE KASARAGOD. 2. SUB INSPECTOR OF POLICE, BEDAKAM POLICE STATION, KASARGODE. 3. E.NARAYANAN NAIR, S/O. LATE HUNHAMBU NAIR, KOLOT HOUSE, KOLATHUR VILLAGE, KASARGOD. 4. BHASKARAN NAIR, S/O. E. NARAYANAN NAIR, KOLOT HOUSE, KOLATHUR VILLAGE, KASARGODE. 5. K.BALAKRISHNAN NAIR, S/O. KUNHAMBU NAIR, KRISHNA NIVAS, PERIYA MUNNAD VILLAGE,KASARGODE. BY G.P. SRI. K.J. M0HAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.303 of 2009-S ------------------------------------------------- Dated this the 5th day of August, 2009 JUDGMENT Basant,J. The petitioner - a young man aged 36 years, has come to this Court with this petition under Art.226 of the Constitution for issue of writ of habeas corpus to search for, trace and produce the alleged detenue Smt. Sujeetha - a woman aged about 35 years and her two children Sujith and Surabhi, aged 10 years and 6 years respectively, who he claims, are the children born to her in him. According to him, the alleged detenue Smt.Sujeetha and her two children are under the illegal detention and confinement of respondents 3 to 5 who are the father, brother and brother-in-law of the said Sujeetha. 2. The version narrated by the petitioner sounds more like fiction. According to him, he had gone to the house of the W.P.(Cri) No.303 of 2009-S -: 2 :- 3rd respondent as an employee/driver. While he was working there, he had fallen in love with the alleged detenue. Intimacy developed and this led to physical relationship. It is his case that twice the alleged detenue had become pregnant and those pregnancies were aborted to protect the family name and honour. Respondents 3 to 5 allegedly ensured that the alleged detenue contracted a marriage with one Sukumaran Nair. According to the petitioner, though such a marriage was contracted, that relationship did not last and the alleged detenue was continuing in the house of the 3rd respondent - her father. The petitioner was also continuing as an employee with the 3rd respondent and according to him, he continued his relationship with the alleged detenue to the knowledge of respondents 3 to 5 as also her legally wedded husband - the said Sukumaran Nair. They continued their physical intimacy also. Two children - Sujith and Surabhi referred above, were born in such physical intimacy between the petitioner and the alleged detenue. It is the case of the petitioner that respondents 3 to 5 as also all others known to them accepted the relationship between the petitioner and the alleged detenue and also the fact W.P.(Cri) No.303 of 2009-S -: 3 :- that the children were born to the alleged detenue in the petitioner and not in her legally wedded husband. 3. It is the case of the petitioner that though the husband was willing to divorce the alleged detenue, respondents 3 to 5 in the name of family honour did not permit him to do so and therefore the relationship between the petitioner and the alleged detenue continued on the sly. According to the petitioner, the alleged detenue had come to his parental home in May, 2009 along with the children and the alleged detenue along with the children were residing along with the petitioner at his prenatal home. The two children were admitted to a school near the house of the petitioner. 4. While they were so residing, the petitioner alleges that on 12/6/09 the alleged detenue was called to the Police Station on the plea that the matters have to be talked over and settled. On 13/6/09, she went to the Police Station and from the Police Station on the promise that the disputes would be settled, she was sent along with her father - the 3rd respondent. According to the petitioner, the alleged detenue was thereafter detained and confined in the house of the 3rd respondent by respondents 3 W.P.(Cri) No.303 of 2009-S -: 4 :- to 5. It is his further case that the alleged detenue was assaulted and injuries were caused to her by respondents 3 to 5. 5. It is, in these circumstances, that the petitioner came to this Court with this petition on 29/7/09. This petition was admitted on 30/7/09 and notice was ordered to the respondents. 6. Today, when the matter came up for hearing, the petitioner and his counsel are present. Respondents 3 to 5 are represented by a counsel. The 4th respondent has appeared in person. The alleged detenue along with the two children are produced by the police. The learned Government Pleader submits that after the filing of this case, the police had traced the alleged detenue in the house of the 3rd respondent and she was taken into the protective custody and produced before the learned Magistrate on 2/8/09. Before the learned Magistrate the alleged detenue expressed her desire that she be permitted to go with the petitioner. She complained before the learned Magistrate that she was subjected to physical abuse in the house of the 3rd respondent by respondents 3 to 5. She stated before the learned Magistrate that her life was in danger. The learned Government Pleader submits that, in these circumstances, the W.P.(Cri) No.303 of 2009-S -: 5 :- learned Magistrate had sent the alleged detenue to the Mahila Mandir from where the police have produced her before this Court today. 7. We allowed the alleged detenue and her two children to remain in the Chamber without being influenced by any one. After lunch we interacted with the alleged detenue in the Chamber. We later interacted with the petitioner and the 4th respondent as also their counsel. The learned Government Pleader was also present. 8. The alleged detenue asserts unambiguously that though she is married to the said Sukumaran Nair, there has been no relationship as such between them except for the first 15 days of marriage. According to her, she had become pregnant on four occasions. Two earlier pregnancies were aborted. Her two children Sujith and Surabhi were born in her relationship with the petitioner and not with the said Sukumaran Nair - her legally wedded husband. She states categorically that she does not want to return to respondents 3 to 5 or her husband Sukumaran Nair; but wants to go along with the petitioner herein. 9. The learned counsel for the 4th respondent submits that W.P.(Cri) No.303 of 2009-S -: 6 :- an earlier application under Sec.97 of the Cr.P.C. was dismissed by the learned JMFC-I, Kasaragod, as per the order in C.M.P.No.1493/09 without and before ascertaining the response of the alleged detenue. A copy of that order has been placed before us. That order shows that the learned Magistrate dismissed the petition on the ground that the alleged detenue is a married woman and the petitioner's claim for relationship with her is not founded on good moral grounds. The 4th respondent who is present before Court prays that the alleged detenue may either be sent along with him to his house or to the Mahila Mandir or any other place; but she may not be permitted to accompany the petitioner herein. He denies all allegations of the alleged torture etc., inflicted on the alleged detenue at the house of respondents 3 to 5. The learned counsel for respondents 3 to 5 denies all the allegations raised against respondents 3 to 5 in this petition. 10. This application is filed under Art.226 of the Constitution for issue of a writ of habeas corpus on the allegation that the alleged detenue is illegally detained and is subjected to torture. The learned Government Pleader submits that as many W.P.(Cri) No.303 of 2009-S -: 7 :- as three crimes between the parties have been registered and in two of them, final reports have already been filed. The learned Government Pleader submits that on the present allegations raised by the alleged detenue before the police, appropriate action shall be taken by the police in accordance with law. 11. The alleged detenue has made the position clear that she does not want to return to the house of respondents 3 to 5 where she apprehends physical danger to herself as also illegal confinement and detention. Her husband has not appeared before Court. She has unambiguously expressed her desire not to return to respondents 3 to 5 or her legally wedded husband Sukumaran Nair. Her preference is made very clear - that she wants to go along with the petitioner herein. 12. In this petition for issue of a writ of habeas corpus, we are not concerned with the morality, propriety, wisdom or prudence of the decision of the alleged detenue. We are convinced that she was restrained and detained against her wishes by respondents 3 to 5. On the basis of the statement made by the alleged detenue, that conclusion appears to be W.P.(Cri) No.303 of 2009-S -: 8 :- irresistible. She, though a married woman, is entitled under law to all her rights for personal liberty. An adult woman cannot be physically detained or restrained against her wishes by any one including her parents, brother, relatives or even her husband. We have to respect the wishes of the alleged detenue - an adult major woman. In response to our specific questions, the alleged detenue requests that she may be set at liberty and permitted to exercise her choice to go with the petitioner. 13. We do not want to grant her any permission to go with the petitioner; but we make it clear that she as a free individual has a liberty to act according to her wishes. She has made it clear that she wants to go with the petitioner. Her wishes will have to be respected. 14. This writ petition is, in these circumstances, allowed. The alleged detenue who has been produced before this Court along with her two children is permitted to go along with her two children as a free person enjoying of all her liberties from this Court. The police shall ensure that her wishes are respected and there is no hindrance or obstruction to the free exercise of her wishes. W.P.(Cri) No.303 of 2009-S -: 9 :- 15. We make it clear that this judgment will not in any way fetter the rights of the husband of the alleged detenue to take appropriate action for the indiscretion/contumacious behaviour, if any, on the part of the alleged detenue or the petitioner. We make it further clear that we have not come to any final conclusions on the allegations raised in this petition also. Parties concerned shall have the liberty to raise appropriate contentions before the appropriate fora where the matter comes up later. 16. Hand over a copy of this judgment to the learned Government Pleader. Hand over another copy of this judgment to the learned counsel for the petitioner. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// W.P.(Cri) No.303 of 2009-S -: 10 :-