IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(Crl.).No. 201 of 2010(S) -------------------------- PETITIONER: --------------- SUCY JOY, W/O.JOY MANI, AGED 40 YEARS ALAKKARAYIL HOUSE, CHERANGANAL,KOTTAPPADI, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.P.A.MUJEEB RESPONDENTS: --------------- 1. THE SUPERINTENDENT OF POLICE RURAL, ALUVA. 2. THE C.I.OF POLICE KOTHAMANGALAM POLICE STATION,KOTHAMANGALAM, ERNAKULAM DISTRICT. 3. THE S.I. OF POLICE KOTHAMANGALAM POLICE STATION, KOTHAMANGALAM,ERNAKULAM DISTRICT. 4. PRADEEP, AGED 21 YEARS,S/O.AYYAPPAN, VADOTTUMALI HOUSE,KOTTAPPADI, KOTHAMANGALAM,ERNAKULAM DISTRICT. SR.GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR ADV. SRI.MANOJ P.KUNJACHAN FOR R4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.201 of 2010 ***************************** Dated this the 28th day of September, 2010 JUDGMENT BASANT, J. This judgment must be read in continuation of the earlier orders passed by this Court resting with the order dated 13.07.2010. 2. The petitioner had come to this Court for issue of a writ of habeas corpus to search for, trace and produce her minor daughter Jeena Joy, aged less than 18 years (date of birth 28.09.1992), hereinafter referred to as `the alleged detenue', who was allegedly missing from 30.03.2010. Though a complaint was allegedly made to the police, the police did not take any useful action and it is, in these circumstances, that the petitioner came to this Court with this petition on 01.06.2010. 3. The petition was admitted on 02.06.2010. The case was posted to 10.06.2010. On the submissions of the learned Government Pleader, the case was taken up for consideration on 04.06.2010. On that day, the alleged detenue was produced before Court. W.P(Crl.) No.201 of 2010 2 4. There was a dispute between the parties about the correct date of birth of the alleged detenue. While the petitioner asserted that her correct date of birth is 28.09.1992 as revealed from Ext.P1 extract of the Register of Births and Deaths at the Kothamangalam Municipality, the alleged detenue had relied on her S.S.L.Certificate which shows her date of birth to be 28.08.1991. The Bench tried to induce the parties to come to a harmonious settlement. Accordingly the alleged detenue was persuaded to go from Court along with her mother and her paternal grandfather on 04.06.2010. It was agreed that they shall take the alleged detenue to the house of a relative - one Rajan at Thalacode. Accordingly the alleged detenue went with her mother, the petitioner and her grandfather on 04.06.2010. 5. The case came up again for hearing on 07.06.2010. The alleged detenue was unwilling to go with her mother again. The petitioner as also her father in law stated that they cannot take the risk of taking the alleged detenue along with them to their residence as they apprehended that the alleged detenue may misbehave and they will not be able to keep her under control. Finally it was agreed that the alleged detenue can be accommodated at Santhi Niketan hostel, Pachalam, until she W.P(Crl.) No.201 of 2010 3 attains the age of majority, ie. till 28.09.2010, today. In the light of the controversy about her correct date of birth, we chose to accept the assertion of the petitioner supported by Ext.P1 extract of the birth register that she was born on 28.09.1992. From 07.06.2010, the alleged detenue is residing at the Santhi Niketan hostel. Expenses for accommodation are being made by the 4th respondent. 6. The apprehension of the petitioner, the mother of the alleged detenue, was that the 4th respondent was illegally detaining and confining the alleged detenue. It is, in these circumstances, that she came before this Court with this petition. 7. The 4th respondent appeared before Court. He filed an affidavit. In such affidavit, he had asserted that the alleged detenue had represented to him that her date of birth is 28.08.1991, as revealed from her school records. The marriage between the 4th respondent and the alleged detenue had taken place at Sidhasramam, Koovappady, on 02.04.2010 and the said marriage has been registered in accordance with the provisions of the Kerala Registration of Marriages (Common) Rules, 2008. Certificate-Ext.R4(b), ie. Certificate No.A2-3781/2010 dated 13.04.2010 issued by the Secretary of the Koovappady Grama W.P(Crl.) No.201 of 2010 4 Panchayat was produced in support of the assertion of the 4th respondent and the alleged detenue that such a marriage has taken place. The petitioner had asserted that the alleged detenue was not aged 18 years and that her marriage, which is alleged to have taken place on 02.04.2010, cannot be held to be valid or legal notwithstanding the registration of the marriage under the Kerala Registration of Marriages (common) Rules, 2008. The petitioner and her counsel had pointed out that, at any rate, the marriage between the alleged detenue, a person belonging to Christian faith and the 4th respondent, a Hindu, cannot be held to be valid or legal inasmuch as the same has not been solemnise and registered under the Special Marriage Act. 8. It was, in these circumstances, that the decision was taken to send the alleged detenue to Santhi Niketan hostel till she attains the age of majority, ie. 18 years on 28.09.2010. 9. In between, we had posted the case to 13.07.2010 with permission to the petitioner and her relatives to interact with the alleged detenue at Santhi Niketan hostel. On 13.07.2010, the alleged detenue was brought from the Santhi Niketan hostel, but the petitioner was not present. She W.P(Crl.) No.201 of 2010 5 was, however, represented by a counsel on that date. On that date we posted this case to this day, ie. 28.09.2010. 10. Today when the matter came up for hearing, the petitioner is not present. Though she was initially represented by a counsel, later when the case is called for hearing, that counsel is also not present. The 4th respondent is present. He is represented by a counsel. Along with the 4th respondent, his brother in law, ie. sister's husband, Jayasudhan by name, has also come to Court. The learned counsel for the 4th respondent Sri.Manoj Kunhachan submits that though the petitioner was represented by a counsel in the morning when the case was called on the Bench, the counsel had stated that he really has no instructions. In an attempt to work out a harmonious settlement, we directed that the matter be called in the Chamber after the lunch recess. 11. After the lunch recess when the case is called, the petitioner and her counsel are not present. The 4th respondent, the alleged detenue and the 4th respondent's brother in law are present. The learned counsel for the 4th respondent and the learned Government Pleader are also present. W.P(Crl.) No.201 of 2010 6 12. The alleged detenue and the 4th respondent pray that they may now be permitted to leave the Court together. There is no element of illegal detention or confinement. They have thought over the matter in detail and have come to a firm decision to live as husband and wife. They submit that their marriage has already taken place and the same has been registered in accordance with the provisions of the Kerala Registration of Marriages (Common) Rules, 2008. But it is not explained how they entered matrimony; under what law, in what manner and following what procedure did they get married. No satisfactory answers are forthcoming. 13. However, we note that both the alleged detenue and the 4th respondent agree that if time is granted to them, they will get their marriage solemnised/registered in accordance with the provisions of the Special Marriage Act and shall produce the certificate of marriage before this Court. They pray that some time may be granted for them to get their marriage solemnised/registered under the provisions of the Special Marriage Act. Sri.Jayasudhan, the brother in law of the 4th respondent, also agrees that he shall take the alleged detenue and the 4th respondent together to the house of the parents of W.P(Crl.) No.201 of 2010 7 the 4th respondent. The alleged detenue, the 4th respondent and his brother in law undertake before Court that the alleged detenue and the 4th respondent shall cohabit as husband and wife only after their marriage is solemnised/registered under the provisions of the Special Marriage Act. 14. The petitioner is not present. It appears that the petitioner is dejected and frustrated and does not want to prosecute this petition. The alleged detenue states that her mother and relatives are not interested in her and have not chosen to call on her at the hostel even once after the last date of posting. She was not contacted also, she submits. We are convinced that the alleged detenue has now crossed the age of 18 years, even going by her birth certificate relied upon by the petitioner. She asserts that she wants to go with the 4th respondent and live with him as his wife. The 4th respondent is a person, who is aged above 21 years (date of birth - 21.05.1988). They are both competent to get married under law. We respect the decisional autonomy of the alleged detenue and the 4th respondent, who are adult majors and competent to contract marriage. We take note of the want of interest on the part of the petitioner to prosecute this petition. We take note of the fact W.P(Crl.) No.201 of 2010 8 that the alleged detenue and the 4th respondent claim to be married and that their marriage registered in accordance with the Registration of Marriages (Common) Rules, 2008. We are, in these circumstances, satisfied that this Writ Petition need not be kept pending any longer and the alleged detenue can be permitted to go along with the 4th respondent and his brother in law accepting their undertaking to produce the marriage certificate under the Special Marriage Act before Court on the next date of posting. 15. We deem it necessary to direct the learned Government Pleader to take instructions from the Secretary, Special Grade, Koovappady Grama Panchayat, as to how a marriage between a Christian and a Hindu has been registered under the provisions of the Registration of Marriages (Common) Rules, 2008. How did the registering authority satisfy himself that a legal marriage has taken place ? Did he not at all ascertain the question whether a valid marriage has already taken place or not ? We think it necessary to ascertain details as we find that in a number of cases marriages are seen registered under the Kerala Registration of Marriages (Common) Rules, 2008 without application of mind as to whether a valid marriage W.P(Crl.) No.201 of 2010 9 has preceded an application for registration under the said rules. The learned Government Pleader shall take instructions from the Principal Secretary, Local Self Government, Government Secretariat, Thiruvananthapuram, also of this crucial aspect and shall make his submissions. 16. In the result: i) This Writ Petition is dismissed; ii) The alleged detenue, Jeena Joy, who has now attained majority without dispute and who had come to Court initially along with the 4th respondent, is permitted to leave Court along with the 4th respondent and his brother in law; iii) We accept the submission of the alleged detenue and the 4th respondent that they shall get their marriage solemnised/registered in accordance with the provisions of the Special Marriage Act and shall produce certificate of marriage before this Court on the next date of posting. We grant them time till 22.11.2010 to produce the marriage certificate; iv) We record the further undertaking of the alleged detenue and the 4th respondent and Jayasudhan, the brother in law of the 4th respondent, that the alleged detenue and the 4th respondent shall not cohabit as husband and wife till their W.P(Crl.) No.201 of 2010 10 marriage is solemnised/registered under the provisions of the Special Marriage Act; v) We further record the undertaking of the alleged detenue and the 4th respondent that the alleged detenue shall continue her education and that on 22.11.2010, ie. the next date of posting, they shall inform the Court about the steps taken to continue the education of the alleged detenue. 17. Call this petition again on 22.11.2010. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/ W.P(Crl.) No.201 of 2010 11 R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.201 of 2010 ********************* Dated this the 13th day of July, 2010 W.P(Crl.) No.201 of 2010 12 ORDER BASANT, J. This order must be read in continuation of our earlier orders resting with the order dated 07.06.2010. 2. Today when the case is called, the petitioner is not present. She is represented by her counsel. She is laid up, it is submitted. 3. The 4th respondent has appeared before Court. He is represented by his counsel. The alleged detenue has been brought to Court from Santhiniketan hostel. The alleged detenue asserts that she wants to go with the 4th respondent, with whom, according to her, her marriage has already taken place. The alleged detenue and the 4th respondent have a case that the correct date of birth of the alleged detenue is 28.08.1991. But Ext.P1 produced by the petitioner shows that as per the Registrar of Births and Deaths, the date of birth of the alleged detenue as entered in the Register of Birth is 28.09.1992. In the SSLC book of the alleged detenue her date of birth is shown as 28.08.1991. 4. Before us, the 4th respondent and the alleged detenue W.P(Crl.) No.201 of 2010 13 now accept that the correct date of birth is 28.09.1992 as shown in Ext.P1. After discussions it is agreed that the alleged detenue shall continue to be accommodated at the Santhiniketan hostel till 28.09.2010 on or after which day alone she can get married in accordance with the provisions of the Special Marriage Act, of course after giving one month's prior notice. 5. Call this petition again on 28.09.2010. The petitioner shall appear on that day and convey to the Court whether she has any objection against this Court accepting the request of the alleged detenue to go with the 4th respondent to get married in accordance with the provisions of the Special Marriage Act after giving the requisite prior notice. The 4th respondent agrees to pay all expenses for the accommodation of the alleged detenue at the Santhiniketan hostel till the next date of posting. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/