IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(Crl.).No. 40 of 2010(S) -------------------------------------- PETITIONER(S): -------------------------- MUHAMMED ASHRAF.K.M, AGED 44 YEARS, S/O.MOIDEENKUTTY, C-11/294, R.N.S.AREA, WILLINGTON ISLAND, KOCHI-3. BY ADV. MR.MANSOOR.B.H. RESPONDENT(S): --------------------------- 1. MUMTAZ, AGED 37, D/O.BAPPU, C/O.MOIDUTTY HAJI, MANAKKADAVATHU HOUSE, VELIYAMCODE, PONNANI TALUK, MALAPPURAM DISTRICT. 2. MOIDUTTY HAJI, MANAKKADAVATHU HOUSE, VELIYAMCODE, PONNANI TALUK, MALAPPURAM DISTRICT. 3. SHANAVAZ, S/O.MUHAMMED KUTTY, PALLIPURATHEYIL HOUSE, PERUMPADAPPU, PONNANI TALUK, MALAPPURAM DISTRICT. 4. SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, PONNANI, MALAPPURAM DISTRICT. R1 & R2 BY ADV. MR.BABU S. NAIR R4 BY GOVERNMENT PLEADER SMT. M.K.PUSHPALATHA THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WP(Crl.)No.40/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER ISSUED BY THE PETITIONER THROUGH HIS LAWYER DTD. 3/11/2009. P2: COPY OF THE CONSENT LETTER OF THE PETITIONER'S DAUGHTER WITH THE 3RD RESPONDENT DTD. 4/10/2009. P3: COPY OF THE APPLICATION FORM SUBMITTED BY THE 2ND RESPONDENT BEFORE THE JUME-ATH DTD. 2/10/2009. P4: COPY OF THE LETTER SUBMITTED BY THE BROTHERS OF THE 1ST RESPONDENT BEFORE THE JUMA-ATH DTD. 3/10/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P(Crl.)No.40 of 2010-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of February, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The marriage between the petitioner and the first respondent stood dissolved by a decree granted by this Court on 28.4.1994 in M.F.A.No.29/1994. The petitioner asserts that even before that, on 10.4.1994, the matrimonial relationship was dissolved in terms of Islamic rites and customs. In the writ petition, he does not state even a syllable as to what he did to his daughter through the first respondent. The said child Ajeesha grew under the care of her mother, who later married the second respondent. With the passage of time, she became a major and the third respondent, who is now reportedly in the United Arab Emirates, married Ajeesha. WPCR40/10 -: 2 :- 2.Thereafter, on the allegation that Ajeesha is in the illegal confinement of respondents 1 to 3 and that the marriage was conducted without informing the petitioner and against the wishes of Ajeesha, this writ petition was filed and this Court was persuaded to issue notice to the parties. 3.Ajeesha has appeared before us today. A counter affidavit is on board by her mother. The first respondent, the mother of Ajeesha and the second respondent, the present husband of the first respondent are also present. 4.In the light of the materials, we spoke to Ajeesha. We find that she is not only a free person but is clear and categoric that she does not remember to have even seen the petitioner in her lifetime. We have no reason to disbelieve her. This is because the petitioner does not aver that he had ever met Ajeesha after the separation of 1994. We note that he does not refute even WPCR40/10 -: 3 :- before us, in person, the fact that he has no material to show that the maintenance granted to Ajeesha at the rate of Rs.150/- per month was honoured. We put specific questions to the petitioner. He stated that he had not got any information from any person who had attended the Nikah of Ajeesha. Yet, we find in averments in the writ petition and in the affidavit that the petitioner came to know from the persons who attended the marriage that Ajeesha had expressed her displeasure and she also had spoken about her helplessness in the matter. The irresponsible fatherhood is further reflected by the statement in the affidavit that the marriage was conducted against the wish and will of Ajeesha. We find no statement as to how the petitioner got that information. Ajeesha in person contradicts it before us. 5.A child separated from the father some time in 1994 never even recalls the petitioner. The petitioner has no case of having extended any WPCR40/10 -: 4 :- help for the upbringing of Ajeesha. His anxiety to save Ajeesha from being married off against her will should necessarily be coupled with the inherent desire to have given her in marriage in accordance with her will and wish. Therefore, as a parent, he has the responsibility to foot at least a part of the expenditure for the marriage. Against him also stands the liability that he had incurred in terms of the decree to pay maintenance. 6.Taking the overall facts and circumstances of the case into consideration, we are inclined to think that the petitioner has to be penalised for this vexatious litigation and also for making false statements knowingly, which could invite penal consequences. We accept the persuasion of his learned counsel Sri.Mansoor and desist from doing so because the petitioner has since remarried and has three children through his second wife and is a Mazdoor in the Docks of the Cochin Port Trust. We do not intend to put him to peril of loosing WPCR40/10 -: 5 :- his avocation. 7.Be that as it may, we are of the firm view that Ajeesha, a newly wed has to be compensated for being compelled to be present in the open court on an allegation referable to her marriage at the instance of her father, who had not shown any care for that daughter for the last 15 years. We are also clear in our mind that Ajeesha's mother, the first respondent has to be compensated. We are sure that her present husband, the second respondent has been unnecessarily pushed to face this proceedings. 8.In the aforesaid circumstances, taking into consideration all relevant facts and circumstances, as also the submissions in this regard at hearing, we are of the view that the petitioner has to pay Ajeesha an amount of Rs.5 lakhs as costs and compensation, including the component of maintenance and also fair support for the marriage expenses. WPCR40/10 -: 6 :- We, therefore, dismiss this writ petition, however directing that the petitioner shall pay the aforesaid sum to Ajeesha and file an affidavit before the Registrar General of this Court of having complied with this direction. We direct that it will be sufficient that the petitioner pays that amount in five equal monthly instalments payable on or before the last working day of every month commencing from March, 2010, without fail. It is further directed that in the event of the petitioner not paying that amount, Ajeesha will be entitled to treat this as an executable decree and put it for execution before the court of competent jurisdiction. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- P.S.Gopinathan, Judge. Sha/1702