IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 WP(Crl.).No. 384 of 2010(S) --------------------------- PETITIONER: --------------- P.ANEESH, S/O.SIVADASAN, POTHEMCHERRY HOUSE, CHETTIPPADY, MALAPPURAM. BY ADV. SRI.A.KRISHNAN RESPONDENTS: --------------- 1. STATE OF KERALA, SECRETARY,HOME AFFAIRS, TRIVANDRUM-695001. 2. THE DIRECTOR GENERAL OF POLICE, TRIVANDRUM-695001. 3. THE SUPERINTENDENT OF POLICE, MALAPPURAM DISTRICT-676505. 4. THE CIRCLE INSPECTOR OF POLICE, THANUR, MALAPPURAM DISTRICT-676505. 5. THE SUB INSPECTOR OF POLICE, PARAPPANANGADI POLICE STATION, MALAPPURAM DISTRICT 676303. 6. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF OVERSEAS INDIA AFFAIRS, NEW DELHI-110001. 7. CHACKO M., MANI, DIRECTOR M/S.ABEER COMPANY, P.O.BOX NO.3561, RUWI, PC 112, SULTHANATE OF OMAN RESIDING AT BUILDING NO.760, WAY NO. 2512, DARSAIT, MUSCAT, HAVING ADDRESS IN INDIA AT NO.181, MGES LAYOUT, RMV II STAGE, NEW BELL ROAD, DEVASANDRA NR, RAMYA HOUSE, BANGALORE. Addl. 8. THE MINISTRY OF FOREIGN AFFAIRS REPRESENTED BY THE SECRETARY, NEW DELHI. WP(Crl.).No. 384 of 2010(S) - 2 - Addl. 9.1st SECRETARY, EMBASSY OF INDIA, JAMI'AT AL-DOWAL, AL ARABIA STREET, DIPLOMATIC AREA, AL KHUWAIR, P.O.BOX NO.1727, P.C.112, MUSCAT, SULTANATE OF OMAN. (Addl.R8 & R9 are impleaded as per order dated 24.11.2010 in I.A.Nos.14540 of 2010 and I.A.Nos.16107 of 2010 respectively) SR. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR FOR R1 TO R5 ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R6, R8 & R9 ADV. SRI.SIBI MATHEW, PHILIP J.VETTIKATTU FOR R7 ADV. SRI.B.PREMNATH FOR R7 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.384 of 2010 ***************************** Dated this the 15th day of December, 2010 JUDGMENT BASANT, J. This judgment must be read in continuation of various orders passed by this Court resting with our order dated 30.11.2010. 2. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce Ms.Betty Anu Chacko, a young woman now aged above 24 years (date of birth - 01.05.1986). She is a B.E (Bio Technology) graduate. She is the daughter of the 7th respondent. The petitioner and the said Betty Anu Chacko, the alleged detenue, were in love. Their relationship did not have the approval of their parents. They belong to two different religions. On 24.02.2006 vide Ext.P1 certificate of marriage, their marriage had taken place at the Arya Samaj (Vedic Church), Kozhikode. Thereafter they are legally wedded spouses. But the alleged detenue was taken away by her father, the 7th respondent to his place of employment at Muscat. The petitioner alleged that the alleged detenue was being illegally detained and W.P.(Crl.)No.384 of 2010 2 confined by the 7th respondent. According to him, the alleged detenue had complained to him many times that she was being illegally detained and confined. The petitioner, in these circumstances, prayed that a writ of habeas corpus may be issued to cause the production of the alleged detenue and she may be permitted to be at liberty and to join him. 3. The alleged detenue was not produced earlier. This Court had to pass orders from time to time to oblige the 7th respondent to ensure appearance of the alleged detenue before Court. On 30.11.2010, it was undertaken by the 7th respondent that the alleged detenue shall be produced before Court today. 4. Today when the case came up for hearing, the petitioner is present. He is represented by his counsel. Along with him, his mother, his brother, his sister and his brother in law have also come to Court. The 7th respondent is present in Court along with his son Brian Chacko. The 7th respondent is also represented by his counsel. A friend of his also accompanies the 7th respondent. The alleged detenue has also been brought to Court by the 7th respondent. 5. As the alleged detenue comes to Court along with/in the custody of the 7th respondent, who allegedly is detaining and W.P.(Crl.)No.384 of 2010 3 confining her, we permitted the alleged detenue to remain in the Chamber with no opportunity for the 7th respondent to influence her. In response to her request, we permitted the petitioner to interact with her during the pre lunch session. 6. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of her father and brother. Later we interacted with the alleged detenue in the presence of the petitioner. Subsequently we had interactions with all concerned jointly. The learned counsel for the petitioner, the learned counsel for the 7th respondent and the learned Government Pleader were also present. 7. The alleged detenue states before us categorically that she is in love with the petitioner. She has already got married to him. Ext.P1 is the certificate of marriage. She wants now to join the petitioner and live as husband and wife. The relatives of the petitioner agree and accept that they recognise the alleged detenue as the legally wedded wife of the petitioner. The 7th respondent and his son have reservations and are unable to accept the decision of the alleged detenue to live as the wife of the petitioner. But they agree that if that is the decision of the alleged detenue, they will accept the said decision. W.P.(Crl.)No.384 of 2010 4 8. The 7th respondent requests and the alleged detenue and the petitioner accept that notwithstanding the form of a marriage undergone by the petitioner and the alleged detenue as evidenced by Ext.P1, they shall take necessary steps to get the marriage solemnised and registered in accordance with the provisions of the Special Marriage Act. They agree to produce the certificate of marriage issued under the Special Marriage Act if sufficient time is given to them. The petitioner as well as his mother and siblings accept that they will not stand against the alleged detenue following her Christian faith if she wants to do that and that they shall not in any way object to such practices by her. They further agree that they do not expect to get any money, ornaments or property on account of this marriage between the petitioner and the alleged detenue. The alleged detenue also states that she is aware and she does not want to claim any money, ornaments or property from her parents on account of this marriage. 9. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the response of the alleged detenue. She does not want this Court to take any action against her father, the 7th respondent, or other relatives. But she asserts W.P.(Crl.)No.384 of 2010 5 that she wants to return from Court along with the petitioner. We are satisfied that the decisional autonomy of the alleged detenue, an educated woman, aged above 24 years, has got to be respected by this Court. We do so. We are satisfied that this Writ Petition can, in these circumstances, be allowed. 10. In the result: a) This Writ Petition is allowed; b) The alleged detenue Betty Anu Chacko is permitted to leave the Court along with the petitioner as desired by her; c) The petitioner and the alleged detenue undertake and agree before us that they shall get their marriage solemnised and registered in accordance with the provisions of the Special Marriage Act and produce the marriage certificate before us by the next date of posting along with a copy thereof to be furnished to the 7th respondent; d) We record the submission of the petitioner and other members of his family that they shall not in any way object to the alleged detenue following whatever religious practices that she wants to follow and that they shall not in any way interfere with such options of the alleged detenue; W.P.(Crl.)No.384 of 2010 6 e) We record the submission of the petitioner, his mother and other siblings that they do not expect any property, money or ornaments from the parents of the alleged detenue and that there shall be no demands whatsoever from them for such money, ornaments or property. 11. The alleged detenue is permitted to leave the Court along with the petitioner. We post the case to 27.01.2011 for production of the marriage certificate under the Special Marriage Act. The petitioner and the alleged detenue shall appear before this Court with the certificate along with a copy thereof for being furnished to the 7th respondent; 12. Passport of the alleged detenue is handed over to her by the 7th respondent in our presence. It is submitted that most of the educational certificates are already in the possession of the alleged detenue. If anything is left out, the 7th respondent undertakes to hand over the same to the alleged detenue on the next date of posting. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P.(Crl.)No.384 of 2010 7 W.P.(Crl.)No.384 of 2010 8 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.384 of 2010 ***************************** Dated this the 26th day of November, 2010 ORDER BASANT, J. Note by the Registry shows that the 7th respondent has already been served. There is no appearance for the 7th respondent. The learned Government Pleader submits that no crime has so far been registered on the allegation that the alleged detenue is being illegally detained by the 7th respondent. The learned A.S.G.I submits that he has received instructions from respondents 6, 8 and 9 and prays for time till 29.11.2010 to file statement. 2. We accept the request of the learned A.S.G.I. Call on 30.11.2010 for the statement of respondents 6, 8 and 9. A copy W.P.(Crl.)No.384 of 2010 9 of the statement shall be furnished to the learned counsel for the petitioner on 29.11.2010. 3. Call on 30.11.2010. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P.(Crl.)No.384 of 2010 10 R.BASANT & K.SURENDRA MOHAN, JJ. ----------------------------------------------------- W.P.(Crl.)No.384 of 2010 ---------------------------------------------------- Dated this the 24th day of November 2010 ORDER 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 wife Anu, daughter of the 7th respondent. According to the petitioner, the petitioner and Anu belong to different religions. They were in love. They decided to get married. Anu, the alleged detenue, got converted to Hinduism and the petitioner and the alleged detenue Anu entered legal matrimony under the W.P.(Crl.)No.384 of 2010 11 provisions of the Hindu Marriage Act on 24.02.2006. According to the petitioner, the marriage was solemnised in accordance with the Hindu customary religious rites of the Arya Samajees at Arya Samaj Mandir (Vedic Church), Rammohan Road, Calicut on 24.02.2006. According to the petitioner, the spouses were living together for some period of time. Later, the 7th respondent pretended to accept the marriage and wanted the alleged detenue to be permitted to complete her educational course. Accordingly the alleged detenue was permitted to go with the 7th respondent. According to the petitioner, subsequently there have been contacts between the petitioner and the alleged detenue. The alleged detenue is now being illegally detained and confined by the 7th respondent, her father at the Sultanate of Oman. This detention/confinement is against the wishes and desire of the alleged detenue Anu. The alleged detenue, his wife, wants to join the petitioner. But her father, the 7th respondent, is not permitting her to join the petitioner. It is in this state of helplessness that the petitioner came to this Court with this petition on 28.09.2010. 2. The matter came up for admission hearing. Initially the Court was not inclined to admit the Writ Petition. The W.P.(Crl.)No.384 of 2010 12 petitioner was requested to explain how it can be shown prima facie that the alleged detenue, his wife, is under illegal detention and confinement. The matter was adjourned from time to time. The petitioner ultimately produced Exts.P3 and P4 letters dated 30.09.2010 and 08.10.2010, which are alleged to be in the handwriting of the alleged detenue. The petitioner has filed an affidavit to confirm that the writing in Exts.P3 and P4 is the handwriting of the alleged detenue. 3. In these circumstances, this Writ Petition was ultimately admitted on 27.10.2010. Notice was ordered to all the respondents. 4. The learned Government Pleader on behalf of the police official respondents and the State of Kerala, ie. respondents 1 to 5, submits that an enquiry by the police confirms the truth of the assertions made by the petitioner. The police are satisfied that the marriage between the petitioner and the alleged detenue had taken place on 24.02.2006. They are further satisfied that the alleged detenue was taken by the 7th respondent from the petitioner with his consent on the statement that she has to complete her education. She was taken abroad by the 7th respondent on 18.04.2006, submits the learned W.P.(Crl.)No.384 of 2010 13 Government Pleader on the basis of instructions of the police. The learned Government Pleader further submits that in the light of the directions of this Court, the police had attempted to contact the alleged detenue. It is confirmed that the alleged detenue and the petitioner are in contact with each other. When the alleged detenue was contacted by the police, she had also informed the police that she wants to return to India and join the petitioner and that she is now not able to come for want of co- operation on the part of the 7th respondent, her father. She did not, of course, make any complaints against her father, the 7th respondent, submits the learned Government Pleader. 5. The petitioner has filed two subsequent applications as I.A.Nos.14540 of 2010 and 16107 of 2010 to implead two additional respondents, ie. the Ministry of Foreign Affairs represented by its Secretary, New Delhi as additional 8th respondent and the 1st Secretary Embassy of India, Muscat, Sultanate of Oman as additional 9th respondent. Notice has been given to the learned A.S.G.I. The learned A.S.G.I has entered appearance for the 6th respondent, who has already been arrayed as a party in this Writ petition. 6. We have heard the petitioner, the learned W.P.(Crl.)No.384 of 2010 14 Government Pleader and the A.S.G.I. We are satisfied that these I.As can be allowed and additional respondents 8 and 9 can be impleaded. They are impleaded as additional respondents 8 and 9. 7. The learned A.S.G.I submits that it will be advantageous if notice were ordered to be issued to the additional 9th respondent. For respondents 6 and 8, the learned A.S.G.I straightaway appears. The learned A.S.G.I undertakes to get instructions from the additional 9th respondent, but prays that simultaneously, by way of abundant caution, notice of this Court may be issued directly to the 9th respondent. We accept the said request of the learned A.S.G.I. 8. The learned Government Pleader submits that he wants time to make authentic submissions as to whether any crime has been registered in respect of this episode/incident. We give the learned Government Pleader time to take specific instructions on that aspect. 9. The learned counsel for the petitioner submits that the petitioner has information from the alleged detenue that the 7th respondent has already been served. Note by the Registry shows that the notice issued to the Bangalore address of the 7th W.P.(Crl.)No.384 of 2010 15 respondent has been returned. The Registry shall verify the fate of the notice issued to the 7th respondent, that is of the one addressed to him at Oman. 10. Call on 26.11.2010 for submissions of the learned Government Pleader about the registration of the crime and also for report of the Registry about service on the 7th respondent of the notice sent in his Oman address. Further directions shall be issued on 26.11.2010. 11. Hand over a copy of this order to the learned Government Pleader forthwith. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P.(Crl.)No.384 of 2010 16 R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P.(Crl.)No.384 of 2010 17 W.P(Crl) No.384 of 2010 ***************************** Dated this the 27th day of October, 2010 ORDER BASANT, J. Heard the learned counsel for the petitioner. Perused the documents produced and the affidavit filed by the petitioner. This petition is, in these circumstances, admitted. Notice given and the learned Government Pleader appears for respondents 1 to 3. Issue notice to respondent No.6. Simultaneously give notice to the learned A.S.G.I. Issue emergent notice to respondent No.7 in both addresses shown in the petition. Issue notice to respondents 4 and 5. The learned Government Pleader and the learned A.S.G.I shall take instructions. 2. Verify service and call again on 15.11.2010. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/ W.P.(Crl.)No.384 of 2010 18