IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(Crl.).No. 390 of 2010(S) --------------------------- PETITIONER: --------------- U.SHAJAHAN, S/O.USEF, AGED 40 YEARS, SHEBIN MANZIL, KADINAMKULAM, PUDHUKURICHI P.O., THIRUVANANTHAPURAM-695303. BY ADV. SRI.BRIJESH MOHAN SMT.RESMI G. NAIR RESPONDENTS: --------------- 1. THE SUB INSPECTOR OF POLICE, KADINAMKULAM POLICE STATION, THIRUVANANTHAPURAM-03. 2. ANISH, S/O.SASI, AGED 26 YEARS, MANAPPURAM LAKSHAMVEEDU COLONY, KODUNGANOOR, VATTIYOORKAVU, THIRUVANANTHAPURAM-695013. ADV. SRI.S.MOHAMMED AL RAFI FOR R1 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.390 of 2010 ***************************** Dated this the 28th day of October, 2010 JUDGMENT 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 adult major daughter Jancy, aged 19 years (date of birth - 28.11.1991). She is a student of the final year degree course. She was residing with her parents and a younger brother. While so, she was missing from 23.09.2010. The police did not succeed in tracing the alleged detenue Jancy though a crime was registered. It is, in these circumstances, that the petitioner came to this Court with this petition on 04.10.2010. 2. This petition was admitted on 04.10.2010. Orders were passed subsequently on 08.10.2010 and 15.10.2010. This judgment must be read in continuation of our earlier orders resting with the order dated 15.10.2010. 3. This Court had persuaded the alleged detenue Jancy to return from Court on 08.10.2010 and 15.10.2010 along with her parents. The parents were granted time to counsel, advise and guide the alleged detenue. W.P(Crl) No.390 of 2010 2 4. Today when the case is called, the petitioner and his wife are present along with the alleged detenue. The petitioner is represented by a counsel. Respondent No.2, who is alleged to be detaining the alleged detenue, is also present along with his father Sasi. The 2nd respondent is represented by a counsel. 5. The alleged detenue claimed for an opportunity to interact with the 2nd respondent. We permitted her to do so. Later we interacted with the alleged detenue in the Chamber alone initially and later in the presence of her parents. Subsequently we interacted with her in the presence of the 2nd respondent and his father. Later we interacted with the alleged detenue in the presence of her parents and the 2nd respondent and his father. The learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Government Pleader were present. 6. The alleged detenue stated before us categorically that she even now wants to go along with the 2nd respondent. They have been in love. They have decided to get married. Notice under the Special Marriage Act has already been lodged before the Marriage Registrar on 28.09.2010. They can now get W.P(Crl) No.390 of 2010 3 their marriage solemnised and registered under the Special Marriage Act. Both the alleged detenue and the 2nd respondent pray that they may be permitted to leave Court together. They seek permission to get their marriage solemnised and registered under the Special Marriage Act. They agree to do so at the earliest. They further agree that the marriage certificate shall be produced before Court if further time is given to produce the marriage certificate. 7. The father of the 2nd respondent submits that he is willing to accept the marriage between his son, the 2nd respondent and the alleged detenue. He undertakes that the alleged detenue shall be properly looked after and taken care of by the 2nd respondent and his parents. They further agree that the alleged detenue can continue in her own religion in accordance with her wishes. It is further agreed by the 2nd respondent that the alleged detenue shall be permitted to continue and complete her education. The 2nd respondent, in response to a specific query, submits that he knows and does not desire that the parents of the alleged detenue must give any property or ornaments to her. The 2nd respondent and the W.P(Crl) No.390 of 2010 4 alleged detenue have no such ambition or expectation, it is submitted. 8. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenue is under any illegal confinement or detention. In this case, the alleged detenue is a young woman, who has crossed the age of 19 years, her date of birth being 28.11.1991. She is an educated woman, she being a student of the final year degree course. Her parents are unable to accept the relationship between her and the 2nd respondent. But she is emphatic that she wants to get married to the 2nd respondent and leave with him from Court. We are satisfied ourselves that the alleged detenue is speaking voluntarily and on her own free will. We have ensured that the alleged detenue remained with her parents from 08.10.2010 to this date. We respect her decisional autonomy. We are satisfied that the alleged detenue can be permitted to leave Court along with the 2nd respondent. We are convinced that she is not under illegal detention or confinement of the 2nd respondent and that no directions under Article 226 of the Constitution need or deserve to be issued now. W.P(Crl) No.390 of 2010 5 9. Finally it is submitted that the 2nd respondent and the alleged detenue apprehend that vindictive and violent action may be directed against them from the petitioner and his relatives. The petitioner undertakes that there shall be no such vindictive action. The learned Government Pleader undertakes that requisite assistance shall be rendered by the 1st respondent. If any of the parties have any such complaints, they can approach the police and the police shall take necessary action to prevent any such untoward acts, submits the learned Government Pleader. 10. The petitioner insists that some ornaments, now worn by the alleged detenue which were purchased by him with his funds, must be returned to him. The 2nd respondent and the alleged detenue agree to the same and have promptly returned the same to the petitioner. The alleged detenue and the 2nd respondent submit that the S.S.L.C certificate of the alleged detenue is available with the petitioner. The same is required for her to continue her studies and for future needs. The petitioner undertakes that the S.S.L.C certificate of the alleged detenue shall be handed over to the Sub Inspector of Police, W.P(Crl) No.390 of 2010 6 Kadinamkulam Police Station, ie. the 1st respondent, who shall return the same to the alleged detenue on proper acknowledgment. The learned Government Pleader shall direct the 1st respondent to do the needful on this aspect. 11. In the result: a) This Writ Petition is, in these circumstances, dismissed; b) The alleged detenue Jancy is permitted to leave the Court along with the 2nd respondent, as desired by her; c) We accept the undertaking of the alleged detenue and the 2nd respondent that they shall get their marriage solemnised and registered under the provisions of the Special Marriage Act at the earliest - at any rate, within a period of 3 days. They further undertake that the certificate of marriage shall be produced before this Court on the next date of posting along with a copy thereof for being furnished to the petitioner. The 2nd respondent, his father and the alleged detenue agree and undertake that till the marriage is solemnised, the 2nd respondent and the alleged detenue shall not and shall not be permitted to cohabit as husband and wife. W.P(Crl) No.390 of 2010 7 12. Call this petition again on 18.11.2010 for production of the marriage certificate. 13. Hand over a copy of this judgment to the learned Government Pleader forthwith. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/ W.P(Crl) No.390 of 2010 8 R.BASANT & M.L.JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(Crl) No. 390 of 2010 S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010 ORDER This order must be read in continuation of the earlier order dt. 8.10.2010 passed by us. W.P(Crl) No.390 of 2010 9 2. Today when the case is called, the alleged detenue has come to Court along with her parents. The second respondent is also present. We have interacted with the alleged detenue. Later we permitted the alleged detenue and the second respondent to interact. Subsequently we interacted with the alleged detenue and the second respondent in the presence of their parents. 3. We feel that the alleged detenue has not yet come to a definite and specific decision. We deem it necessary to give her further time to take a firm decision. We do in these circumstances permit the alleged detenue to continue residence with her parents till the next date of posting. In any view of the matter, we find that the marriage can take place only after 28.10.2010. 4. Call this petition again on 28.10.2010. Till then the alleged detenue shall continue to reside along with her parents on the same terms and conditions as were stipulated in the order dt.8.10.2010. The alleged detenue states before us that she has no problem whatsoever and she is willing to reside with her W.P(Crl) No.390 of 2010 10 parents. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) tm R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.390 of 2010 ***************************** Dated this the 8th day of October, 2010 ORDER BASANT, J. W.P(Crl) No.390 of 2010 11 Petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his daughter Jancy, aged 19 years (date of birth - 28.11.1991). She is a student of the degree final year course. She was residing along with her father, the petitioner, her mother and a younger brother. She was found missing from 23.09.2010. The petitioner apprehended that his daughter Jancy (hereinafter referred to as `the alleged detenue') is being illegally detained and confined by the 2nd respondent, a young man aged about 26 years, who was residing and working in the locality. A crime was registered on 24.09.2010 as Crime No.253 of 2010 of Kadinamkulam Police Station. But the police did not succeed in tracing the alleged detenue. It is, in these circumstances, that the petitioner came to this Court with this petition on 04.10.2010. 2. The petition was admitted on 04.10.2010. Notice was ordered to the respondents. The matter was posted to this date. 3. Today when the case is called, the petitioner along with his wife and brother of the alleged detenue have come to Court. The petitioner is represented by a counsel. W.P(Crl) No.390 of 2010 12 4. The 2nd respondent has also come to Court. He is represented by a counsel. With him, the alleged detenue has also come to Court. His parents have also come to Court along with the 2nd respondent. 5. As the alleged detenue comes to Court along with/in the custody of the 2nd respondent, we permitted the alleged detenue to remain alone in the Chamber with opportunity for no one to interact with her. We however permitted the petitioner, his wife and their minor son to interact with the alleged detenue. During the pre lunch session, they had such interactions. 6. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of her parents. Later we interacted with the alleged detenue in the presence of the 2nd respondent. The father and mother of the 2nd respondent were also present. The learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Government Pleader were also present. 7. The alleged detenue states before us that she is in love with the 2nd respondent and wants to get married to him. W.P(Crl) No.390 of 2010 13 The 2nd respondent is a Hindu by religion; whereas the alleged detenue is a Muslim. They inform us and show the documents to confirm that notice of their intention to get their marriage solemnised and registered under the provisions of the Special Marriage Act has been lodged before the Marriage Registrar on 28.09.2010. They do, of course, further state that they have undergone a formal ceremony in a temple. Valid marriage has not been solemnised so far, it is not disputed. The alleged detenue and the 2nd respondent request the Court that they may be permitted to return from Court together. The father and mother of the 2nd respondent state that they have no objection against the relationship between the alleged detenue and the 2nd respondent. They are willing to accept the alleged detenue as the wife of their son, the 2nd respondent. 8. The petitioner and his wife are unable to accept the relationship between the alleged detenue and the 2nd respondent. They seem to entertain an impression that the alleged detenue has not taken any voluntary and genuine decision. She has been defrauded, they complain. They want more time to interact with the alleged detenue. They pray that W.P(Crl) No.390 of 2010 14 they may be given time to interact with, counsel, guide and advise the alleged detenue. If reasonable time is given to them to interact with the alleged detenue and the alleged detenue still wants to go with the 2nd respondent, the parents of the alleged detenue state that they shall accept the relationship. 9. We attempted to bring the parties to a harmonious settlement. They have not been able to arrive at any final settlement so far. They agree and we record the terms of the agreement and issue the following directions: i) The alleged detenue Jancy shall today return from Court along with her parents. She shall reside with her parents till the next date of posting, ie. 15.10.2010; ii) During this period, the alleged detenue shall be permitted to reside along with her parents and younger brother at their residence Shebin Manzil, Kadinamkulam. She shall not be shifted to any other place. Other than her parents and younger brother, no one shall be permitted to occupy the said house. The alleged detenue shall not be compelled to interact with any other person during this period; W.P(Crl) No.390 of 2010 15 iii) It is specifically agreed that the alleged detenue shall not be put to any mental or physical harassment by her parents during the interregnum. They shall of course be at liberty to guide, counsel and advise the alleged detenue. No medicine shall be administered to her and she shall not be obliged to undergo any counselling by anyone including religious personnel; iv) During this period up to 15.10.2010, on all days between 8 and 8.30 p.m for a period of 10 minutes the alleged detenue and the 2nd respondent shall be permitted to speak to each other over telephone. There shall be no obstruction whatsoever to such interaction between the alleged detenue and the 2nd respondent. Except such contact over the telephone, the alleged detenue and the 2nd respondent shall not contact each other; v) The parents of the alleged detenue agree that if the alleged detenue takes a decision to go with the 2nd respondent on 15.10.2010, they shall accept the decision and shall seek further directions from this Court on that day; W.P(Crl) No.390 of 2010 16 vi) Both sides agree that there shall be no vindictive action by either against the other during this period. 10. The learned Government Pleader undertakes that the police shall ensure that nothing untoward takes place during this period. Any party having a grievance can complain to the 1st respondent and the 1st respondent shall take all necessary action in the matter, undertakes the learned Government Pleader. 11. Call on 15.10.2010. The petitioner, the 2nd respondent and the alleged detenue shall appear before this Court on that date. 12. Give copy of the order to both counsel and the learned Government Pleader. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/