IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(Crl.).No. 258 of 2010(S) --------------------------- PETITIONER(S): --------------- SHAHIN, S/O.KUNJOKOYA, AGED 31 YEARS KANJIRATHINMOOTTIL HOUSE, KARUVATTA NORTH PO KARUVATTA ,ALAPPUZHA 69- 554 BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): --------------- 1. MUHALAR, NIJA MANZIL, NANGARKULANGARA PO, CHINGOLI, ALAPPUZHA PIN 690 513. 2. ADABIYA,NIJA MANZIL NANGARKULANGARA PO, CHINGOLI, ALAPPUZHA PIN 690 513. 3. THE CIRCLE INSPECTOR OF POLICE HARIPPAD CIRCLE, ALAPPUZHA PIN 690 514. 4. THE SUB INSPECTOR OF POLICE HARIPPAD POLICE STATION, ALAPPUZHA PIN 690 514. ADV. SRI.T.MADHU FOR R1 &2 SRI.B.K.RAJAGOPAL FOR R1 &2 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No.258 of 2010 ---------------------------------------- Dated this the 19th day of July 2010 J U D G M E N T Basant,J This judgment must be read in continuation of the earlier order passed by us on 06/07/2010. 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 Najeeba, a young girl, who, according to him, is aged above 18 years (date of birth : 24/4/1992). Respondents 1 and 2 are the father and mother respectively of the alleged detenue Ms.Najeeba. The petitioner alleged that he is in love with the alleged detenue and that they have decided to get their marriage solemnised and registered under the provisions of the Special Marriage Act. Notice for such solemnisation was given on 18/6/2010. On coming to know of the relationship between the petitioner and the alleged detenue, respondents 1 and 2, the petitioner alleged, are illegally detaining and confining the alleged detenue. In these circumstances, it was prayed that a writ of habeas corpus may be issued to search for, trace and produce the alleged detenue. W.P.(Crl) No.258 of 2010 2 3. Respondents 1 and 2 appeared in court along with the alleged detenue on 06/07/2010. Vide order dated 06/07/2010, we directed that the alleged detenue be accommodated at the Shantinikethan hostel till this date with opportunity for respondents 1 and 2 as also the sister of the alleged detenue (Nija by name ) and her husband (Anwar by name) to meet and interact with the alleged detenue. They were given opportunity to advise, counsel and guide the alleged detenue. 4. On that day, there was a dispute about the precise date of birth of the alleged detenue. The birth certificate produced reveals that she was born on 24/4/1992; whereas her school records show her date of birth to be 24/4/1993. That difference is crucial because if the former were correct, she would be an adult major on the date of this petition; whereas if the latter were correct, she would not have completed the age of 18 years. Both parties were permitted to produce better evidence, if any, available to show the correct date of birth of the alleged detenue. The learned Government Pleader was also directed to get enquiries conducted through the police to apprise this Court of the correct date of birth of the alleged detenue. 5. Today when the case is called, the petitioner was present along with his mother Mrs.Fathima. He is represented W.P.(Crl) No.258 of 2010 3 by a counsel. 6. Respondents 1 and 2 are not present. They are represented by a counsel. Mrs.Nija, the sister of the alleged detenue and Mr.Anwar, the brother-in-law of the alleged detenue are present. The alleged detenue has been brought to Court from the Shantinikethan hostel. 7. We interacted with the alleged detenue alone initially. She asserts that she wants to go with the petitioner and get married to him. The petitioner and his mother agree to take the alleged detenue with them and to get the marriage solemnised in accordance with the provisions of the Special Marriage Act immediately - tomorrow itself, if possible. The mother of the petitioner agrees that if the alleged detenue is sent with her and the petitioner, the alleged detenue and the petitioner shall not be permitted to co-habit until their marriage is solemnised and registered under the provisions of the Special Marriage Act. The mother of the petitioner submits that she is agreeable for the marriage between her son, the petitioner and the alleged detenue. The alleged detenue shall be looked after well and properly, submit both the petitioner and the mother of the petitioner. W.P.(Crl) No.258 of 2010 4 8. The learned counsel for respondents 1 and 2 reports that respondents 1 and 2 now accept that the correct date of birth of the alleged detenue is 24/4/1992 and not 24/4/1993, as shown in the school records. The learned counsel for respondents 1 and 2 submits and this submission is supported by Mrs.Nija and Mr.Anwar, the daughter and son-in-law of respondents 1 and 2 that respondents 1 and 2 have no objection in the alleged detenue now being sent along with the petitioner. They submit that they have done everything that was possible to advise, guide and counsel the alleged detenue; but if the alleged detenue is unwilling to accept the request of her parents and relatives, she can be permitted to take whatever decision, she thinks, is best for her. Respondents 1 and 2 have not been able to come to Court today because of the illness of the 1st respondent. They are unable to accept the relationship between the alleged detenue and the petitioner. It is submitted on behalf of respondents 1 and 2 that they should not hereafter be made responsible for whatever happens to the alleged detenue. 9. We note that the alleged detenue has only crossed the age of 18 years on 24/4/2010. Our request to the alleged detenue to go with respondents 1 and 2 and reside with them for some time to enable her to take a proper and inform decision has W.P.(Crl) No.258 of 2010 5 fallen on deaf ears. She is adamant and insistent that she should be permitted to leave the Court along with the petitioner and his mother to enable her to get married with the petitioner in accordance with the provisions of the Special Marriage Act for which notice has already been given on 18/6/2010. There is no impediment against their marriage being performed/solemnised and registered today or any later day. They shall get the marriage solemnised and registered tomorrow itself, if possible, submit the alleged detenue and the petitioner. The mother of the petitioner also reiterates the same. 10. The learned Government Pleader submits that the police have attempted to verify the records. The birth of the petitioner is seen recorded in the register of births and deaths of Pallippad panchayath. The birth was on 24/4/1992. The registration was done on 29/4/1992. There was some inconsequential inaccuracy in the description of the name of the father and mother of the alleged detenue. The name of the father is Mahular.M; whereas it has been recorded as Vahilar.M in the register. The name of the mother is Adabiya Kunju; whereas it is recorded as Adaviya Kunju. Those errors have been corrected later in the register. We do not think it necessary to go into further details as respondents 1 and 2 today do not W.P.(Crl) No.258 of 2010 6 dispute the fact that the alleged detenue was born on 24/4/1992 as shown in the birth register and not on 24/4/1993 as shown in the school records. 11. We take note of the fact that the alleged detenue is an adult major now, she having crossed the age of 18 years on 24/4/2010. Notwithstanding the inability of respondents 1 and 2 to accept the relationship between the petitioner and the alleged detenue, we must take note of the fact that she is a major woman. She has already completed her Plus Two course. Even after we gave her sufficient time to consider and contemplate her decision and even after advice given to her by her parents, sister and brother-in-law, she is insistent and adamant that she wants to leave along with the petitioner herein. We respect her decisional autonomy. We are satisfied that she wants to get married to the petitioner and live with the petitioner. She does not, of course, make any allegations against her parents. 12. We are satisfied that this writ petition can now be allowed. 13. In the result, a) This writ petition is allowed. b) The alleged detenue Ms.Najeeba, daughter of respondents 1 and 2, born on 24/04/1992, is permitted to leave W.P.(Crl) No.258 of 2010 7 the Court along with the petitioner and his mother, as desired by her. 14. We accept the undertaking of the petitioner, his mother and the alleged detenue that the petitioner and the alleged detenue shall commence co-habitation only after they become husband and wife legally after solemnisation and registration of their marriage under the Special Marriage Act. We further record their undertaking that they shall produce the certificate of marriage before this Court, if some time were granted. They shall produce a copy of such certificate also for being furnished to respondents 1 and 2. 15. Call this petition again on 30/7/2010 for production of the marriage certificate along with a copy thereof. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.(Crl) No.258 of 2010 8 W.P.(Crl) No.258 of 2010 9 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 19/07/2010