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 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(Crl.).No. 33 of 2010(S) -------------------------- PETITIONER: --------------- SUDHA, D/O.KAMALAKSHI, IRUVELIKKAL, NELLIKKUNNATHU VEEDU, KARUKONE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) SMT.P.KRISHNAPRIYA SMT.P.PADMAPRIYA SMT.S.SREENI RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 3. THE CIRCLE INSPECTOR OF POLICE, PUNALUR. 4. SUB INSPECTOR, ANCHAL POLICE STATION. 5. JITHEESH, AGED 23 YEARS, EMPLOYEE IN KAVYARAJ PVT.BUS SERVICE, RESIDING AT MUKKADA, KADAKKAL, KOTTARAKARA TALUK. GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR ADV. SRI.R.SURAJ KUMAR FOR R5 SRI.N.AJITH FOR R5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.33 of 2010 ********************* Dated this the 14th day of June, 2010 JUDGMENT BASANT, J. This order must be read in continuation of orders passed earlier in the matter resting with the order dated 09.06.2010 passed by us. 2. Today when the case is called, the petitioner is present. She is represented by her counsel Mrs.Geetha Job. The alleged detenue has come along with her father in whose custody she was sent earlier by this Court. She continues in such custody of her father. The 5th respondent is present before Court. 3. It is now confirmed that the alleged detenue is pregnant. She submits and the 5th respondent accepts that the 5th respondent is responsible for that pregnancy. The mother of the 5th respondent is present before Court. She states that she and her husband as also her 2 daughters are willing to accept the alleged detenue as the wife of the 5th respondent. According to them, the marriage has actually taken place in accordance with the Hindu customary rites at the Chanappara Sree Chavarukavu temple. That marriage has taken place on W.P(Crl.) No.33 of 2010 2 16.11.2009 and a certificate issued by the President and Secretary of that temple dated 16.11.2009 is produced. The father of the alleged detenue is present before Court. The petitioner accepts that Sri.Baburaj, who is present before Court, is the father of the alleged detenue. All concerned now accept that the marriage between the alleged detenue and the 5th respondent has been solemnised in accordance with the provisions of the customary Hindu rites and that it is in such relationship that the alleged detenue has become pregnant. The identity card issued by the E.S.I Corporation in the name of the alleged detenue in her capacity as daughter of the petitioner is produced and that shows that the alleged detenue was born in the year 1990. There is a dispute between the parties as to whether the alleged detenue was really born in 1990 or was born only on 18.03.1993. 4. We are not persuaded to go into that dispute in any greater detail. If any of the parties want that dispute to be raked up, they shall be at liberty to do the same before appropriate fora at the appropriate stage. We now take note of the fact that, most importantly, the alleged detenue is pregnant and that all concerned accept the 5th respondent as the person responsible for that pregnancy. We take note of the fact that the W.P(Crl.) No.33 of 2010 3 alleged detenue, as per the E.S.I Corporation identity card, was born in the year 1990 and going by the same, she was competent to contract a marriage on 16.11.2009, the date on which her marriage allegedly took place at the Chanappara Sree Chavarukavu temple. We shall assume the worst. Even if it be assumed that the alleged detenue was really born on 18.03.1993, the marriage is not rendered void or null. There will be only an alleged non compliance with the provisions of the Child Marriage Restraint Act. The father of the alleged detenue Baburaj submits that he accepts the marriage between his daughter, the alleged detenue and the 5th respondent. 5. The petitioner, the mother of the alleged detenue, we find, is in a state of absolute confusion. She laments that though she had promptly lodged the complaint before the authorities, her daughter was not promptly returned to her custody and that has caused all the unnecessary and unfortunate complications. We can appreciate her plight. She evidently is critical of the role played by all concerned, which led to the present unfortunate situation. 6. What according to us is more important is that the petitioner asserts that she is not willing to take the alleged detenue with her. She asserts that the alleged detenue can be W.P(Crl.) No.33 of 2010 4 sent to wherever the Court pleases in accordance with the desire of the alleged detenue. She will have nothing to do with the alleged detenue or the pregnancy which is now accepted as a matter of fact. She only submits that this Court may pass any orders which the court feels is appropriate. 7. The fact of marriage and pregnancy is not seen disputed. The 5th respondent and his relatives, including his mother Sobhana, who is present before Court today, accept the marital relationship between the alleged detenue and the 5th respondent. The father of the alleged detenue also accepts the marital relationship. The petitioner finds it difficult to accept the relationship and keeps on querying as to who permitted the alleged detenue, who according to her is a minor girl, to be given in marriage to the 5th respondent. 8. We take note of the human problem involved. We are not now attempting to answer the question as to what is the correct date of birth of the alleged detenue. The fact remains that she has got married to the 5th respondent in accordance with the Hindu religious rites and has conceived in such relationship. The alleged detenue, the 5th respondent, his mother and the father of the alleged detenue want the alleged detenue to be sent along with the 5th respondent. The petitioner W.P(Crl.) No.33 of 2010 5 is unwilling to accept the alleged detenue. Even the alleged detenue is not willing to go along with the petitioner. 9. Having rendered our very anxious consideration to the totality of inputs available, we are satisfied that the ideal course to be followed is to permit the alleged detenue to go with the 5th respondent as desired by both of them. No further directions are, in these circumstances, necessary in this Writ Petition. 10. This Writ Petition is, in these circumstances, dismissed. The alleged detenue Suvidha, daughter of the petitioner and Sri.Baburaj, who is present before Court, is permitted to leave the court along with the 5th respondent and his mother. 11. The original certificate of marriage dated 16.11.2009 is returned to the 5th respondent. The Writ Petition having already been dismissed, I.A.No.6972 of 2010 is also dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/