IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(Crl.).No. 439 of 2011(S) --------------------------- PETITIONER(S): --------------- ABDUL KHADER, S/O.LATE AHMED KUNJU, AGED 49 YEARS, RESIDING AT AK NIVAS, ERUVA WEST, KAREELAKULANGARA.P.O., KAYAMKULAM. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SRI.NIRMAL V NAIR SRI.K.RAJAGOPAL SRI.ANISH JAIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 682 031. 2. SUPERINTENDENT OF POLICE, ALAPPUZHA DISTRICT-688 001. 3. CIRCLE INSPECTOR OF POLICE, KAYAMKULAM, ALAPPUZHA DISTRICT. 4. SUB INSPECTOR OF POLICE, KAREELAKULANGARA POLICE STATION, ALAPPUZHA DISTRICT-690 572. 5. SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY, KOLLAM DISTRICT-695 044. 6. VISHNU, S/O.RAJASHEKHARAN PILLAI, VISHNU VIHAR, VAVVAKAVU.P.O., KARUNAGAPPALLY-695 028. 7. PRASANNAN, S/O.SIVADASAN, PUTHUVALTHEKKETHIL, KADATHOOR, K.S.PURAM, KARUNAGAPPALLY, VAVVAKAVU.P.O., KOLLAM-695 028. ADV. SRI.M.S.IMTHIYAZ AHAMMED FOR R7 SRI.SHIRAZ ABDULLA FOR R7 SRI.JOJO PAPPACHAN FOR R7 SRI.T.GOPALAKRISHNAN FOR R6 GOVERNMENT PLEADER SMT. SUNITHA VINOD THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(CRL.) NO. 439/2011 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE FIR NO. 583 OF 2011 OF KAREELAKULANGARA POLICE STATION DATED 21.09.2011. RESPONDENT'S EXHIBITS EXHIBIT R6(a) : A CERTIFIED COPY OF THE STATEMENT RECORDED BY THE JFCM, HARIPAD DATED 30.09.2011. /TRUE COPY/ P.A. TO JUDGE. R.BASANT & V.CHITAMBARESH, JJ. *********************** WP(CR) No. 439 of 2011 ***************************** Dated this the 28th day of November, 2011 JUDGMENT BASANT, J. This judgment must be read in continuation of the various earlier orders passed in the matter resting with the order dated 03.11.2011. 2. The learned counsel for the petitioner submits that the petitioner and his wife have had sufficient opportunity to interact with the alleged detenue, their daughter aged 19 years. They are now convinced that their daughter is not under any illegal detention or confinement. They respect her desire that she wants to go from the court along with the 6th respondent. Notice has already been given by the alleged detenue and the 6th respondent to get their marriage solemnized and registered under the Special Marriage Act. The alleged detenue Thasni asserts before us today also that she wants to go along with the 6th respondent and get married to him. The learned counsel for the 6th respondent submits that the marriage can be solemnized and registered on any day now, the period of 30 days of notice having already expired. It is submitted that if sufficient time is given by this Court, certificate to evidence W.P(Crl) No.439 of 2011-S 2 solemnisation/registration under the Special Marriage Act shall be produced before this Court on the next date of posting. 3. This petition is filed under Article 226 of the Constitution to issue a writ of Habeas Corpus to search for, trace and produce the alleged detenue Thasni, the daughter of the petitioner. We are now satisfied - nay all concerned including the petitioner, are now satisfied, that the alleged detenue is not under any illegal confinement or detention. We are, in these circumstances, satisfied that this petition can now be dismissed. However we feel it necessary to ensure and insist that a certificate of marriage to evidence solemnization/registration of the marriage under the Special Marriage Act must be produced before this Court in the interests of justice. 4. In the result: a) This writ petition is dismissed. b) The alleged detenue Thasni an adult, major woman, aged above 19 years (date of birth - 27.05.1992) is permitted to go along with the 6th respondent as desired by her. c) We are accepting the statement made by the 6th respondent and the alleged detenue that they shall get their marriage solemnized and registered under the provisions of the W.P(Crl) No.439 of 2011-S 3 Special Marriage Act and shall produce certificate of their marriage before this Court on the next date of posting. d) We direct them to appear before this Court again on 06.12.2011 along with certificate of their marriage. A copy shall also be produced for being furnished to the petitioner. e) As it is submitted by the learned counsel for the petitioner that harmonious settlement of outstanding disputes could be attempted, we direct the petitioner, the 6th and 7th respondents as also the alleged detenue to appear before us on 06.12.2011. 5. Call on 06.12.2011. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) dnc/ W.P(Crl) No.439 of 2011-S 4 W.P(Crl) No.439 of 2011-S 5 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.439 of 2011-S ***************************** Dated this the 3rd day of November, 2011 ORDER BASANT, J. This order must be read in continuation of our earlier orders resting with the order dated 24.10.2011. Today when the case is called, the petitioner is present along with his wife. He is represented by a counsel. Along with them, the alleged detenue Thasni has also come to Court. 2. The 6th respondent along with his mother and paternal grandmother have also come to Court. He is also represented by a counsel. There is no representation for the 7th respondent. 3. We interacted with the alleged detenue alone initially and later in the presence of her parents. The learned counsel for the petitioner was also present. The alleged detenue states that she wants to go with the 6th respondent and get married to him. She expresses reluctance and does not want to return today along with her parents. Her parents also agree that the alleged detenue can now be accommodated at the Santhi Niketan hostel W.P(Crl) No.439 of 2011-S 6 as desired by her. 4. The 6th respondent and his counsel point out that notice under the Special Marriage Act has already been lodged before the Marriage Officer, ie. the Sub Registrar, Karunagappally, Additional Sub Registry, on 27.10.2011 and the marriage can now be solemnised on any day after 27.11.2011. 5. We wanted the parties to explore the possibility of a harmonious settlement. They agree that efforts in this direction can be pursued. In these circumstances, the following directions are issued: i) The alleged detenue Thasni shall be accommodated at the Santhi Niketan hostel till 28.11.2011. The petitioner offers to meet the expense for such accommodation of his daughter, the alleged detenue; ii) Till the next date of posting, the petitioner, his wife and his two other daughters (younger sisters of the alleged detenue) shall be at liberty to visit the alleged detenue at the Santhi Nikean hostel at any time in accordance with the rules of the hostel; iii) The 6th respondent shall be permitted to contact the alleged detenue over the telephone on all days between 4 and 5 W.P(Crl) No.439 of 2011-S 7 p.m in accordance with the rules of the hostel; iv) Both sides agree that they shall pursue efforts for a harmonious settlement and that there shall be no contumacious conduct against each other till the next date of posting; v) Respondents 3 to 5 shall ensure that there is no contumacious or violent acts against each other as undertaken by the parties till the next date of posting. 6. Call this petition again on 28.11.2011. The learned Government Pleader shall ensure that today the alleged detenue is taken to the Santhi Niketan hostel by a woman police constable not in uniform and is brought back to this Court on 28.11.2011 also thus. 7. Parties shall be at liberty to seek further directions if any necessary till the next date of posting. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P(Crl) No.439 of 2011-S 8 W.P(Crl) No.439 of 2011-S 9 R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.439 of 2011-S ***************************** Dated this the 24th day of October, 2011 ORDER BASANT, J. This order must be read in continuation of our earlier orders resting with the order dated 18.10.2011. Today when the case is called at 1.45 p.m in the Chambers, the petitioner, his brother in law and his wife are present. The 6th respondent, his father, mother and paternal grandmother are present. The 7th respondent is not personally present, but he is represented by his counsel. The petitioner and the 6th respondent are represented by their respective counsel. The learned Government Pleader is also present. 2. The alleged detenue has been brought to the Court from the Santhi Niketan hostel. We had interactions with the W.P(Crl) No.439 of 2011-S 10 alleged detenue alone initially. Further we had interactions with her in the presence of her parents. Later we had interactions with the alleged detenue in the presence of the 6th respondent. The alleged detenue and the 6th respondent were permitted to have interactions in private. After discussions with all concerned, we are satisfied that the following specific directions are to be issued: (i) We accept the statement of the alleged detenue and the 6th respondent that they want to get married and for that purpose they have to apply for solemnisation/registration of their marriage under the Special Marriage Act. They are permitted in the presence of their counsel to execute the necessary documents; (ii) The alleged detenue is permitted to return from Court today along with her parents. She shall be so accommodated in the house of the petitioner at AK Nivas, Eruva West, Kareelakulangara P.O, till the next date of posting; (iii) This permission has been granted on the specific undertaking of the petitioner and his wife that in their house other than the petitioner and his wife, only two younger sisters of the alleged detenue shall be present. No other person shall be W.P(Crl) No.439 of 2011-S 11 permitted to visit the alleged detenue or to reside in the said house till the next date of posting. The alleged detenue shall not be taken to any other place till the next date of posting; (iv) During such stay of the alleged detenue with her parents, on all days between 4 and 5 p.m, the alleged detenue and the 6th respondent shall be permitted to speak to each other over the telephone confidentially without any interruption. They shall be at liberty to speak to each other for such length of time as they desire within the said period of one hour; (v) The parents of the alleged detenue, the 6th respondent and his parents agree that there shall be no contumacious acts, threats or intimidation between them till the next date of posting. 3. The case shall be called again on 03.11.2011. On that day, the petitioner shall appear in Court with the alleged detenue. After ascertaining the version/response of all concerned, appropriate further directions shall be issued. 4. The learned Government Pleader undertakes that respondents 4 and 5 shall ensure due compliance with these directions. 5. It is directed that a woman police constable not in W.P(Crl) No.439 of 2011-S 12 uniform from the Kareelakulangara Police Station shall visit the alleged detenue at the residence of her parents every day and shall confirm from her that the directions hereby issued are being scrupulously followed. 6. It shall be open to any of the parties or the learned Government Pleader to move this Court for further directions if there be any non compliance with these directions. 7. Hand over copies of this order to the learned Government Pleader, the learned counsel for the petitioner and the learned counsel for the 6th respondent. 8. The learned Government Pleader shall communicate the directions forthwith to respondents 4 and 5. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/ W.P(Crl) No.439 of 2011-S 13 W.P(Crl) No.439 of 2011-S 14 R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.439 of 2011-S ***************************** Dated this the 18th day of October, 2011 ORDER BASANT, J. Thasni, the alleged detenue, has appeared before us from the Santhi Niketan hostel. We are informed by her that her stay at the Santhi Niketan hostel was uneventful and pleasant. The 6th respondent is present. The petitioner and his wife are also present. The petitioner and the 6th respondent are represented by their counsel. The learned Government is also present. 2. The alleged detenue states before us that she wants to go with the 6th respondent. The 6th respondent is willing to take her. The 6th respondent does not appear to have any settled employment or independent aboard. The petitioner and his wife air an apprehension that the 6th respondent and the alleged detenue will not be admitted to the house of the 6th respondent as the father of the 6th respondent, who has returned from his place of employment abroad, is unwilling to accept the alleged detenue and the 6th respondent. The 6th respondent makes contra assertions and submits that his father has come from abroad and W.P(Crl) No.439 of 2011-S 15 on the next date of posting if the Court permits, he shall produce his father and mother to confirm that they are willing to accommodate the alleged detenue and him. 3. The petitioner and his wife further pray that they may be given some further time to interact with the alleged detenue and to counsel and guide her. 4. We are, in these circumstances, satisfied that the alleged detenue can continue to be accommodated at Santhi Niketan hostel on the same terms and conditions as were issued on 10.10.2011 by us. This order must be read in continuation of the said order. A woman police constable not in uniform shall take the alleged detenue to the hostel and shall bring her back on the next date of posting. 5. Call this Writ Petition again on 24.10.2011 at 1.45 p.m. 6. The petitioner and his wife pray and we direct that the petitioner and his wife along with their two minor children shall be permitted to take one other person also of their choice when they proceed to the hostel for interaction with the alleged detenue. 7. Hand over a copy of this order to the learned W.P(Crl) No.439 of 2011-S 16 Government Pleader and the learned counsel for both sides. The learned Government Pleader shall communicate the direction to the hostel authorities. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/ W.P(Crl) No.439 of 2011-S 17 R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.439 of 2011-S ***************************** Dated this the 10th day of October, 2011 ORDER 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 daughter Thasni, an adult woman, aged 19 years (date of birth – 27.05.1992). The alleged detenue is a final year student W.P(Crl) No.439 of 2011-S 18 of the B.Com. Degree course. She was allegedly missing from 20.09.2011. According to the petitioner, she was being illegally detained and confined by the 6th respondent, a young man, in active collusion with the 7th respondent, a friend of the 6th respondent. A crime was registered by the police. Investigation was in progress. The alleged detenue was not traced by the police. It is, in these circumstances, that the petitioner came to this Court with this petition on 28.09.2011. 2. The case was adjourned to 04.10.2011 and then to this date. 3. Today when the case is called, the petitioner is present along with his wife. He is represented by his counsel. The 6th respondent has appeared before Court in person. He is also represented by his counsel. The 7th respondent is represented by a counsel. The alleged detenue has come to this Court along with the 6th respondent. 4. As the alleged detenue comes to Court along with the 6th respondent, who is allegedly detaining and confining her illegally, we permitted the alleged detenue to remain alone in the Chamber with no opportunity for the 6th respondent to influence her. We permitted the petitioner, his wife and two W.P(Crl) No.439 of 2011-S 19 younger sisters of the alleged detenue to interact with her during the pre-lunch session. 5. After the lunch recess, we interacted with the alleged detenue alone initially. Later we interacted with her in the presence of her parents. Subsequently we interacted with her in the presence of the 6th respondent. Later we interacted with all the parties in the presence of their respective counsel as also the learned Government Pleader. 6. The learned Government Pleader submits that the alleged detenue was traced by the police. She was produced before the learned Magistrate having jurisdiction. The learned Magistrate had permitted the alleged detenue to leave along with the 6th respondent. It is accordingly that the alleged detenue and the 6th respondent have come to this Court together today. 7. The alleged detenue states before us that she is not under any illegal confinement or detention. She is in love with the 6th respondent. They have decided to get married. In fact, they have already undergone marriage in accordance with the Hindu customary rites at the Sree Naluvila Devi Temple, Ennakkad Post, Alappuzha. A marriage certificate dated W.P(Crl) No.439 of 2011-S 20 23.09.2011 is produced for perusal of the Court. The alleged detenue states before us that she wants to leave along with the 6th respondent, who, she claims, is her husband. 8. The 6th respondent states before us that he is in love with the alleged detenue; that they have undergone a ceremony of marriage in accordance with the Hindu rites on 23.09.11 and that they have been residing as husband and wife after such marriage. He prays that the alleged detenue may be permitted to leave the Court along with him. 9. The petitioner submits that the alleged detenue is a girl, aged about 19 years only. It is incorrect to say that there has been any valid marriage. Even assuming that the alleged detenue and the 6th respondent have cohabited, they cannot be described to be legally wedded spouses. The alleged detenue, who belongs to the Muslim community, and the 6th respondent, who belongs to the Hindu community, cannot be said to have been legally married by undergoing Hindu ceremonies. It is submitted by the learned counsel for the petitioner that the alleged detenue may be permitted to go with her parents today. She may be permitted to live along with her parents for one week and thereafter her wishes may be ascertained, submits the W.P(Crl) No.439 of 2011-S 21 learned counsel for the petitioner. The petitioner and his wife prevalently appeal that they may be permitted to interact with their daughter for some period of time before any final decision is taken by the Court in the matter. 10. We explore the possibility of a harmonious settlement. The alleged detenue refuses to go away with her parents. After discussions in the Chamber in the presence of all concerned, we are satisfied that the following directions deserve to be issued in the interests of justice: i) The alleged detenue shall be accommodated at Santhi Niketan hostel, Near Lourde's Hospital, Pachalam, till 18.10.2011. On that day, she shall be brought back to this Court to ascertain her response and for passing further orders; ii) During this period till 18.10.2011, the alleged detenue shall be accommodated in the hostel and her parents and two sisters shall be permitted to visit and interact with her at any time as per the rules of the hostel. The parents may not be permitted to take the alleged detenue out of the hostel; iii) Till 18.10.2011, the parents and sisters of the alleged detenue are permitted to interact with the alleged detenue to advise and counsel her at the hostel in accordance with the rules W.P(Crl) No.439 of 2011-S 22 of the hostel, but she shall not be permitted to be taken out of the hostel; iv) During this period up to 18.10.2011, the 6th respondent and the alleged detenue shall be permitted every day to interact over the telephone in accordance with the rules of the hostel for half an hour between 4.30 and 5 p.m; v) The learned Government Pleader undertakes that a woman police constable not in uniform shall accompany the alleged detenue to the hostel and shall be brought back to this Court from hostel on 18.10.2011; vi) The petitioner undertakes to meet all the expenditure in connection with the accommodation of the alleged detenue at the hostel till 18.10.2011. 11. Call this petition again on 18.10.2011 at 1.45 p.m. 12. Hand over a copy of this order to the learned Government Pleader and the learned counsel for both sides. A copy of the order shall forthwith be sent through the police constable to the Santhi Niketan hostel. The hostel authorities are requested to accommodate the detenue till 18.10.2011. 13. The matter shall be treated as part heard. W.P(Crl) No.439 of 2011-S 23 (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/