IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(Crl.).No. 467 of 2009(S) --------------------------- PETITIONER(S): --------------- ELIAS VARKEY, S/O. VARKEY, AGED 52 YEARS, VATTAPPARAMBIL, MANNATHOOR.P.O, THIRUMARADI VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): --------------- 1. THE SUPERINTENDENT OF POLICE, ERNAKULAM (RURAL), ALUVA. 2. DEPUTY SUPERINTENDENT OF POLICE, MOOVATTUPUZHA. 3. THE SUB INSPECTOR OF POLICE, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 4. ELDHOSE VARGHESE, S/O. VARGHESE, AGED ABOUT 21 YEARS, AMBALATHINKUZHIYIL, PAMBAKKADA.P.O, ERNAKULAM. 5. VARGHESE, FATHER'S NAME NOT KNOWN, AMBALATHINKUZHIYIL, PAMBAKKADA.P.O, ERNAKULAM. 6. LISSY, W/O. VARGHESE, AMBALATHINKUZHIYIL, PAMBAKKADA.P.O, ERNAKULAM. ADV. SRI.S.JIJI FOR R4,5,6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20/11/2009 ALONG WITH W.P.(CRL)NO.484 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl).Nos.467 & 484 of 2009 ---------------------------------------- Dated this the 20th day of November 2009 J U D G M E N T Basant,J These petitions are both filed by the rival contestants for issue of a writ of habeas corpus to search for, trace and produce Ms.Josmy Joy, a woman aged above 20 years. Initially, the petitioner in W.P.(Crl) No.467/09 came before this court with that petition. He is the paternal uncle of Ms.Josmy Joy, the alleged detenue. He complained that his niece Ms.Josmy Joy was being illegally detained by the 4th respondent with the active assistance and collusion of respondents 5 and 6, his parents. She was allegedly found missing from 30/10/2009. She did not return home and the petitioner apprehended that the alleged detenue was under the illegal confinement and detention of respondents 4 to 6. The father of the alleged detenue, the brother of the petitioner had fallen sick and was hospitalised. His wife, the mother of the detenue had to attend on him. It is, in these circumstances, that the petitioner, the paternal uncle of the alleged detenue, came to this court with this petition. This petition was filed on 12/11/2009. It was admitted on 13/11/2009. W.P.Crl Nos.467 & 484/09 2 Notice was ordered to the respondents. The case was posted to this date. 2. W.P.(Crl) No.484/09 is filed by the 4th respondent in W.P.(Crl) No.467/09. He complained that Ms.Josmy Joy, the alleged detenue, with whom he was in love, was being illegally detained by respondents 6 to 8. The 6th respondent is the father of the alleged detenue. 8th respondent is her paternal uncle. He is the petitioner in W.P.(Crl) No.467/09. 7th respondent is the cousin brother of the alleged detenue. 3. The petitioner in W.P.(Crl)No.484/09 complained that Ms.Josmy Joy was being illegally detained by her father and relatives. He admitted that on 31/10/2009, the alleged detenue had eloped with him. According to him, they were in love and they had decided to get married. They had gone to the office of the Sub Registrar, Piravom and had made the necessary application to get their marriage registered under the Special Marriage Act. The petitioner in W.P.(Crl)No.484/09 submits that the alleged detenue was produced before the learned Magistrate having jurisdiction on 04/11/2009 and respecting her wishes in the statement given by her, she was permitted to go with the petitioner in W.P.(Crl)No.484/09. He and the alleged detenue W.P.Crl Nos.467 & 484/09 3 were informed that the father of the alleged detenue had fallen sick and, in these circumstances, he had taken the alleged detenue to her parental home. She was allegedly left there on 11/11/2009. According to the petitioner, his fiancee, the alleged detenue Ms.Josmy Joy, was being illegally detained without giving him and his fiancee an opportunity to interact with each other. W.P.(Crl)No.484/09 stands posted for admission today. 4. Today when the cases came up for hearing, the alleged detenue has come to court along with her father, mother, her paternal uncle and her cousin brother. The 4th respondent in W.P.(Crl)No.467/09 that is the petitioner in W.P.(Crl)No.484/09 has also appeared before court along with his counsel. His father has also come to court along with him. 5. We interacted with the alleged detenue in open court and she stated to us that she is aged above 20 years - she having been born on 21/4/1989. In response to a specific query by us, the alleged detenue Ms.Josmy Joy stated to us that she does not want to interact with the 4th respondent - Sri.Eldhose Varghese. As the alleged detenue comes from the custody of her parents, we thought it necessary to permit her to remain in the chamber without opportunity for anyone to influence her will. She was W.P.Crl Nos.467 & 484/09 4 thus allowed to remain in the chamber for a long period of time exceeding three hours to enable her to think, retrospect and give to us a genuine and voluntary response. 6. After the lunch recess, we interacted with the alleged detenue separately initially. Thereafter, we interacted with her in the presence of the 4th respondent Sri.Eldhose Varghese. She stated categorically that she is not under any wrongful restraint or confinement of her father or other relatives. She admitted that she was in love with Sri.Eldhose Varghese. She admitted that they had together left their native place on 31/10/2009. She admitted that she had appeared before the learned Magistrate and had given statement to the learned Magistrate. She admitted that she was left at her residence by Sri.Eldhose Varghese on coming to know of the illness of her father. But, according to her, she now does not want to go with Sri.Eldhose Varghese. According to her, it was a mistake on her part to have gone with him. At any rate, she is categoric that she is not under the illegal detention or confinement of anyone and now wants to leave the court along with her parents and paternal uncle. 7. In our interactions with Sri.Eldhose Varghese, he stated that he is in love with the alleged detenue and he is under W.P.Crl Nos.467 & 484/09 5 the impression that she is being illegally detained by her parents. After their interactions with us in their mutual presence, Sri.Eldhose Varghese states that he is now satisfied that the alleged detenue is not under any illegal confinement or detention. 8. We have considered all the relevant circumstances. We are satisfied that the alleged detenue Ms.Josmy Joy is not and was not under the illegal confinement of anyone. It appears to us that she voluntarily went along with Sri.Eldhose Varghese. They spent some days together. The alleged detenue now appears to realise that it was not a wise decision and she does not want to continue the relationship with Sri.Eldhose Varghese. She stated specifically that she wants to return along with her parents. 9. The alleged detenue stated that some of her documents are with Sri.Eldhose Varghese. Sri.Eldhose Varghese graciously agreed to return all such documents and all such documents have been returned to the alleged detenue. It is submitted that some clothes of the alleged detenue are there in the house of Sri.Eldhose Varghese. He agrees to return them to her through the police. Ms.Josmy Joy, the alleged detenue W.P.Crl Nos.467 & 484/09 6 accepts that a mobile phone given by Sri.Eldhose Varghese is available with her. She has not brought the same to court now. It is agreed that the mobile phone shall be returned to Sri.Eldhose Varghese through the police again. Both sides agree that they shall appear before the Kuthattukulam police station at 4 p.m tomorrow (21/11/2009) to exchange these articles. 10. Both sides agree that they shall try to forget what has happened and shall not in any way interfere or cause difficulties to the life of the other. We record that submission. The learned Government Pleader submits that necessary action will be taken by the police, if either party complains hereafter of any genuine grievance. The learned Government Pleader further submits that necessary action shall be taken to close the investigation in crime No.683/09 of Kuthattukulam police station registered regarding the disappearance of the alleged detenue. 11. In the result, these writ petitions are dismissed as agreed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.Crl Nos.467 & 484/09 7 W.P.Crl Nos.467 & 484/09 8 W.P.Crl Nos.467 & 484/09 9 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009