IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 WP(Crl.).No. 425 of 2010(S) --------------------------- PETITIONERS: --------------- 1. VASUMATHY,AGED 64 YEARS,W/O. SAHADHAVEN, CHARUVIL HOUSE, KATTOR PO, THRISSUR DISTRICT. 2. BABURAJ, PULLAMVALAPPIL,KIZHUTHANI, THANISSERY PO,MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJESH CHAKYAT RESPONDENTS: --------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE IRINJALAKUDA, THRISSUR DISTRICT. 2. THE SUB INSPECTOR OF POLICE, KATTOOR, THRISSUR DISTRICT. 3. LENIN, S/O.UNNIKRISHNAN, KOROT HOUSE, KIZHUPPULLIKKARA VILLAGE, THRISSUR DISTRICT. 4. SOBHA ULLAS, KOROT HOUSE, KIZHUPPULLIKKA RA VILLAGE,THRISSUR DISTRICT. 5. UNNIKRISHNAN, NADIYAMBATH HOUSE, VADANAPPILLY, THRISSUR DISTRICT. SR. GOVERNMENT PLEADER SRI. K.J.MUHAMMED ANZAR ADV. SRI.C.A.CHACKO FOR R3&DETENUE THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.425 of 2010 ***************************** Dated this the 11th day of November, 2010 JUDGMENT BASANT, J. The petitioners have come before this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce Priya, a woman, aged about 39 years (date of birth - 14.11.1971), who is daughter of the 1st petitioner and the wife of the 2nd petitioner. 2. The 2nd petitioner is employed abroad. The 2nd petitioner and the alleged detenue Priya have been married for a long period of time. Their marriage was solemnised on 20.03.1993. Two children - both boys, aged 14 and 10 years respectively, are born in the wedlock. In connection with his employment, the 2nd petitioner resides abroad. The 1st petitioner resides at her native place. The alleged detenue is a D.Pharm Diploma holder. She runs a medical shop. She was residing in a house belonging to her husband, the 2nd petitioner. While so, the alleged detenue was found missing from 17.09.2010. A complaint was lodged before the police. The alleged detenue was brought back to the house of the 1st petitioner, her mother W.P(Crl) No.425 of 2010 2 on 19.09.2010. Till 06.10.2010, she resided with her mother. But from 06.10.2010, she was found missing. On the complaint of the 1st petitioner, the mother of the alleged detenue, Crime 486 of 2010 was registered at the Kattoor Police Station. The alleged detenue was not traced by the police. It is, in these circumstances, that the petitioners came to this Court with this petition on 02.11.2010. 3. This petition was not admitted as we were not prima facie satisfied that there is any element of illegal detention or confinement. The learned Government Pleader was requested to take instructions. The case was posted to 10.11.2010. 4. On 10.11.2010, the learned Government Pleader prayed for time for the police to trace the alleged detenue. Accordingly the case was posted to 23.11.2010. 5. The matter has been advanced and called today at the request of the learned Government Pleader. The learned Government Pleader submitted before Court that the alleged detenue has been traced and has agreed to appear before this Court today. Accordingly the case was called at 1.45 p.m with direction to the parties to be present. W.P(Crl) No.425 of 2010 3 6. At 1.45 p.m, both petitioners are present. They are represented by their counsel. Brother of the 1st petitioner Sri.Ravikumar is also present. Respondents 3 to 5 are not present. The alleged detenue has appeared before Court. She is represented by a counsel. 7. We interacted with the alleged detenue for some time in the Chamber. She is aged about 39 years. She states categorically and unambiguously before us that she is in love with the 3rd respondent and has gone with the 3rd respondent on her own. She does not want to return to the petitioners. She wants to live with the 3rd respondent. Her children are now residing with the 1st petitioner. She has no objection in the children continuing to reside with her mother. She asserts that she may be permitted to have interactions with the children. She stated before us categorically that she is not under the illegal detention or confinement of anyone. She has gone with the 3rd respondent Lenin with her free consent. She prays that she may be permitted to leave the Court and continue residence with Sri.Lenin. 8. The petitioners stated before us that the alleged detenue is not taking an informed, considered or prudent W.P(Crl) No.425 of 2010 4 decision. The 2nd petitioner stated that if the alleged detenue wants to leave him and get married to the 3rd respondent, he has no objection in agreeing to a divorce by mutual consent. But he asserts that the alleged detenue shall not be permitted to see the children unless the children want to meet their mother. 9. Though we attempted to persuade the alleged detenue to remain for some time in a hostel and to think, contemplate and take decision for herself after sufficient forethought, she asserts that she has already thought about the matter and she does not need any further time. Our attempts to persuade her to accept the suggestion did not unfortunately succeed. She is also willing to apply for divorce by mutual consent. Her right to claim custody/visitorial rights in respect of her children may be left unfettered. She may be permitted to leave the Court and pursue her chosen course of going with the 3rd respondent, she asserts. 10. 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. We are satisfied that the alleged detenue is not under any confinement or detention. We are satisfied that the alleged detenue has taken W.P(Crl) No.425 of 2010 5 a voluntary decision on her own to leave the petitioners and go with the 3rd respondent. The 3rd respondent, it is admitted by all, is a young man, aged about 25 years only. We may state that in a petition for issue of a writ of habeas corpus, we are not concerned with the prudence, correctness or morality of the decision of the alleged detenue. We need only ascertain whether the decision is taken voluntarily by her. We are satisfied after our long interactions with the alleged detenue in the presence of the petitioners that she has taken the voluntary decision on her own to leave the petitioners and join the 3rd respondent. We respect her decisional autonomy. She has the right to take decisions which may ultimately turn out to be correct or incorrect. We are satisfied that no further directions are necessary in this Writ Petition. 11. However, we take note of the agreement between the 2nd petitioner and the alleged detenue that they can present a petition for divorce by mutual consent immediately. There have been discussions between the counsel and it is agreed that the joint petition for divorce under Section 13 B of the Hindu Marriage Act can be filed before the Family Court, Trichur, W.P(Crl) No.425 of 2010 6 immediately. We record that submission of the alleged detenue and the 2nd petitioner in the presence of their counsel. 12. The 3rd respondent Lenin is not present. The alleged detenue and her counsel submit that the said Lenin is willing to take the alleged detenue with him at any time. It is agreed that on account of this episode, there shall be no vindictive action or harassment to each other by the petitioners on the one hand and the alleged detenue and the 3rd respondent on the other. We record that submission. 13. In the result: a) This Writ Petition is dismissed; b) The alleged detenue Priya, a woman aged about 39 years, is permitted to leave Court on her own as desired by her. We make it clear that she shall be at liberty to pursue whatever course she thinks is best for her. We record her submission that she wants to leave and live with the 3rd respondent. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P(Crl) No.425 of 2010 7 W.P(Crl) No.425 of 2010 8 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.425 of 2010 ***************************** Dated this the 10th day of November, 2010 ORDER BASANT, J. We have heard the learned Government Pleader. The learned Government Pleader also submits that at the moment and with the available inputs, the police are not satisfied that there is any element of illegal detention or confinement. However, the police are making every effort to trace the alleged detenue. The learned Government Pleader prays that 10 days' further time may be granted for the police to trace the alleged detenue and ascertain from her mouth whether she is under detention or not. We grant the learned Government Pleader time as prayed for. W.P(Crl) No.425 of 2010 9 2. Call on 23.11.2010 for a decision on the question of admission. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P(Crl) No.425 of 2010 10 R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.425 of 2010 ***************************** Dated this the 3rd day of November, 2010 ORDER BASANT, J. Heard the learned counsel for the petitioners. The grievance is that the alleged detenue, an adult major woman, aged about 38 years, is kidnapped by the 3rd respondent. Consideration of the submissions made at the Bar and perusal of the petition clearly reveal that the alleged detenue, a married W.P(Crl) No.425 of 2010 11 woman, whose marriage took place on 20.03.93 and who has got two children in that wedlock, had left the house of the petitioners on 17.09.2010. A complaint was made before the police and she was brought back on 19.09.2010 without any legal or proper action being taken on the complaint. Subsequently she is again found to be missing from 06.10.2010. On the very next day, a complaint has been filed and a crime has been registered as Crime 486 of 2010 of Kattoor Police Station. Investigation is pending. She has not been traced so far. The F.I statement reveals that after the alleged detenue was taken back to the house of the petitioners, she had attempted to commit suicide also. It is evident that she was prevailed upon to lodge a complaint against the 3rd respondent, with whom she is now alleged to have disappeared. 2. Having considered all the relevant inputs, we must say that we are unable to perceive any elements of illegal detention or confinement. The learned counsel for the petitioner is permitted to place any further material before this Court to satisfy us that there are any elements of illegal detention or confinement. Inasmuch as a crime has already been registered, we direct the learned Government Pleader to take instructions W.P(Crl) No.425 of 2010 12 and make submissions on the next date of posting to enable us to decide on the question of admission. 3. Call on 10.11.2010. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/