IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(Crl.).No. 439 of 2009(S) --------------------------- PETITIONER: --------------- SARATH CHANDRAN, AGED 30 YEARS, VENGAVILA VEEDU, PLACHERI.P.O. PUNALUR. BY ADV. SRI.S.RAJEEV RESPONDENT(S): --------------- 1. STATE OF KERALA REP. BY CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SUB INSPECTOR OF POLICE PUNALUR POLICE STATION. 3. SUPERINTENDENT OF POLICE, KOLLAM. 4. NISHAD, S/O.SALAHUDHEEN, NISHAD MANZIL PUNALUR. 5. LATHEEFA W/O. SALAHUDHEEN, NISHAD MANZIL PUNALUR. BY GOVT.PLEADER SMT.SMITHA SUKUMAR FOR R1 TO R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.439 OF 2009 ----------------------------------------------------- DATED THIS THE 4th DAY OF NOVEMBER, 2009 J U D G M E N T 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 Ms.Niza, a woman aged about 26 years - date of birth 16.5.1983, who he apprehended was being illegally detained by respondents 4 and 5 -her brother and mother respectively. According to the petitioner, he is aged 30 years, the alleged detenue Niza is aged 26 years and they have been in love for a long period of time. They are close neighbours for the past about 14 years. They have decided to get married and have undergone a form of marriage in a local temple on 25.10.2009. Thereafter, she was being detained illegally by respondents 4 and 5 at their residence. It is in these circumstances that the petitioner has come to this Court with this petition. 2. This petition was filed on 28.10.2009. It was admitted on 29.10.2009. Notice was ordered to all the respondents. 3. Today, when the case is called, the petitioner is W.P.(Crl.)No.439/09 -2- present along with his mother. His counsel is also present. Respondents 4 and 5 have come to Court along with the alleged detenue Ms.Niza. The father of the alleged detenue Niza, Salahudheen has also come to Court today. He is employed abroad and has now come back to India on coming to know of this proceedings, it is submitted. 4. As the alleged detenue comes from the custody of her parents and brother, we permitted her to remain in the Chamber without opportunity for anyone to influence her. In the Court, she stated to us that she is above 26 years of age and she is a teacher by profession. She is a B.A.History graduate and has come to Court today along with her parents and brother. 5. After about three hours - after lunch recess, we interacted with the alleged detenue in the Chamber. She is categoric that she has got married to the petitioner Sarath Chandran. They are in love. She does not want any action to be taken against her parents and brother for allegedly detaining her against her will, but is categoric and unambiguous in her statement that from Court she wants to go along with the W.P.(Crl.)No.439/09 -3- petitioner herein. According to her, she and the petitioner are legally married and have decided to live together. She does not want to return to her parental home along with her parents and brother. 6. After initial interactions separately with the alleged detenue, we interacted with the detenue firstly in the presence of her parents and brother and later in the presence of the petitioner and his mother. The learned counsel for the petitioner is present. Respondents 4 and 5 - brother and mother of the alleged detenue have not engaged any counsel. 7. We attempted to ascertain if any option for harmonious settlement is still available. But, we are disappointed that there appears to be none. Though the petitioner and his mother appear to be willing for harmoniously resolving the controversy, the parents of the alleged detenue and her brother are unable to accept the relationship between the alleged detenue and the petitioner. According to them, there is no scope for any harmonious settlement. The alleged detenue stated before us and that statement was confirmed by the parents and W.P.(Crl.)No.439/09 -4- brother of the alleged detenue that she had told them even at home that she will tell the Court that she wants to go along with the petitioner. 8. The parents and brother of the alleged detenue now accept the inevitable but submit that they cannot approve that relationship. The alleged detenue can follow any course that she wants, but the parents and brother of the alleged detenue submit that it must be made clear that there shall be no further relationship between them and the alleged detenue in future. We recorded this only to confirm that the option of a harmonious settlement of the dispute does not appear to be probable - at least now. 9. Admittedly, the alleged detenue and the petitioner follow different religious faiths. The alleged detenue is a Muslim and the petitioner is a Hindu. Though some form of marriage has been undergone, that cannot obviously constitute a legal marriage, concedes the learned counsel for the petitioner. The learned counsel for the petitioner submits that if given sufficient time, the petitioner and the alleged detenue shall get their W.P.(Crl.)No.439/09 -5- marriage solemnised and registered in accordance with the provisions of the Special Marriage Act and shall report to this Court that such marriage has been solemnised and marriage certificate shall be produced. The petitioner, in his interactions with us accepts that he shall get married with the alleged detenue in accordance with the provisions of the Special Marriage Act and he has no objection against the alleged detenue pursuing the religious faith of her choice. 10. We are in these circumstances satisfied that this Writ Petition can be allowed. Appropriate further directions can be issued. 11. In the result: (a) this Writ Petition is allowed. (b) the alleged detenue Ms.Niza,aged 26 years is permitted to leave the Court along with the petitioner, as agreed by her parents and brother. (c) We accept the submission of the learned counsel for the petitioner that the petitioner W.P.(Crl.)No.439/09 -6- shall produce before Court, marriage certificate under the Special Marriage Act, if sufficient time is given. 12. We direct that this petition be called again on 14.12.2009 for the petitioner to comply with his undertaking to produce the marriage certificate. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn