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. 427 of 2009(S) --------------------------- PETITIONER: --------------- THAMPAN K.KURIAN AGED 50 YEARS, S/O.K.K.KURIAN, KODUMKULATH HOUSE, KUMARANELLUR-PO, OTTUPARA, WADAKANCHERI, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENTS: --------------- 1. MOHAMMED HISHAM AGED ABOUT 24 YEARS S/O.E.K.HASSAN, EARACHAN VEETIL KUMARANELLUR-PO, WADAKANCHERI, THRISSUR DISTRICT. 2. E.K.HASSAN, EARACHAN VEETIL, KUMARANELLUR-PO, WADAKANCHERI, THRISSUR DISTRICT. 3. ABDUL SALAM S/O.MUHAMMED KUMARANELLUR-PO,,OTTUPARA.WADAKANCHERI, THRISSUR DISTRICT. 4. IQBAL S/O.UMMER EARACHAN VEETIL HOUSE, THOYAKKAVU PO, THRISSUR DISTRICT. 5. SUB INSPECTOR OF POLICE WADAKANCHERI POLICE STATION, THRISSUR DISTRICT. 6. CIRCLE INSPECTOR OF POLICE WADAKANCHERI CIRCLE, THRISSUR DISTRICT. ADV. SRI.SUNNY MATHEW FOR R1 TO 3 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. 427 OF 2009 ============================ DATED THIS THE 4TH DAY OF NOVEMBER 2009 JUDGMENT Basant,J. This judgment must be read in continuation of our earlier order dated 30-10-2009. 2. The petitioner has come to this Court with this application for issue of a writ of habeas corpus to search for, trace and produce his daughter, Chinju Merin Thampan, a girl aged about 18 years (date of birth 23-11-2009). She was allegedly missing from the first week of October. According to the petitioner, the father of the alleged detenue, the alleged detenue was being illegally detained by respondent No.1 in active collusion with respondents 2 to 4. 3. The alleged detenue appeared before this Court on 30-10-2009. She stated categorically that she is not under the illegal confinement or detention of anyone. She is in love with WPCrl.427/2009 -2- the first respondent and she has decided to get married to the first respondent. Notice to get their marriage solemnised/registered under the Special Marriage Act has already been given on 19-10-2009. The marriage can now be solemnised on or after 19-11-2009. She asserted that she wants to return along with the first respondent with whom she had come to court. She refused to accept the request of the petitioner to go with him. 4. On 30-10-2009 after the interactions between the alleged detenue and her parents and the first respondent and his parents and in the presence of their counsel, it was agreed that the alleged detenue will go along with the petitioner and his wife and be with them till this date. Accordingly the alleged deteneu left the court on 30-10-2009 along with her parents. 5. Today the alleged detenue has come to court along with her parents. Respondent No.1, his father-respondent No.2 as also his brother-in-law, the third respondent are present. Wife of the third respondent as also the wife of the 2nd respondent are present. WPCrl.427/2009 -3- 6. The petitioner and his wife submit that the stay of the alleged detenue with them from 30-10-2009 has been peaceful and uneventful. They had occasion to interact with her to their satisfaction. But she has not agreed and accepted their suggestion that she must forget the first respondent and return to live with them. The alleged detenue in her interaction with us separately initially and later in the presence of the petitioner and his wife and subsequently in the presence of all concerned has asserted that she wants to marry the first respondent and be with him. 7. We are now satisfied that the alleged detenue is not under the illegal confinement or detention of anyone. We are satisfied that the petitioner and his wife have been given sufficient opportunity to advise and persuade their daughter, the alleged detenue, to follow the course which they think is correct. She does not accept the same. The petitioner and his wife have resigned to the fact that the alleged detenue wants to go with the first respondent. Their marriage can be performed only on WPCrl.427/2009 -4- 19-11-2009 and all concerned are in agreement that the alleged detenue should not be permitted to co-habit with the first respondent before they are legally married and they become man and wife in the eye of law. 8. It is agreed by respondents 1 to 3 that the marriage shall be performed in accordance with the provisions of the Special Marriage Act. It is further submitted that the alleged detenue can follow whichever religious faith she wants to in her choice. 9. Only one short question remains to be considered – that is where the alleged detenue can be accommodated till 19-11-2009. She is unwilling to return with the petitioner and his wife. The petitioner and his wife are not agreeable for the marriage. Though we tried to explore the possibility of the petitioner and his wife taking the alleged detenue with them today and they taking her for the marriage to the office of the Registrar, they are unwilling to accept the marriage and hence submit that they are unable to do the same. We have two options before us. Either the alleged detenue can be WPCrl.427/2009 -5- accommodated in a hostel till 19-11-2009 or she can be permitted to go with the sister and brother-in-law of the first respondent, i.e. the third respondent and his wife on the undertaking given by them that the alleged detenue shall not be given opportunity to co-habit with the first respondent till their marriage is performed in accordance with law. Even the second respondent, the father of the first respondent asserts that the respondents also do not want any such co-habitation to take place hereafter before the first respondent and the alleged detenue solemnise the marriage and become man and wife legally. The alleged detenue expresses her preference for the latter option. 10. We have rendered our anxious considerations to do the relevant aspects. We are ultimately persuaded to agree that the safer and the ideal course to be followed would be to permit the alleged detenue to go along with the third respondent and his wife and be with them until 19-11-2009 when the marriage is to be performed under the Special Marriage Act. Such course, we are satisfied, shall ideally be suited in the given facts and WPCrl.427/2009 -6- circumstances. In coming to this conclusion, we take note of the state of mind of the alleged detenue and her response also. We must after all remember that she is an adult woman, having already attained the age of 18 years. We do also take note of the fact that from 1-10-2009 till 30-10-2009 she was residing with respondents 1 to 3. 11. We are further satisfied that the case must be posted to a date after 19-11-2009 by which date the marriage certificate issued between the first respondent and the alleged detenue in accordance with the provisions of the Special Marriage Act must be produced before this Court. 12. In the result, a) this petition is dismissed. b)The alleged detenue Chinju Merin Thampan shall be accommodated in the house of the third respondent, Abdul Salam, S/o. Muhammed, Puzhakkara Illath House, P.O.Elavally, Via. Chittattukara, Thrisiur District, till 19-11-2009. The third respondent and his wife Shahanaz undertake before court that the first respondent and the alleged detenue shall not WPCrl.427/2009 -7- be permitted to co-habit until their marriage is performed in accordance with the provisions of the Special Marriage Act. c) the parties agree that the alleged detenue shall be at liberty to contact her parents and the parents shall be at liberty to contact her till 19-11-2009 and thereafter. 13. Call this petition again on 24-11-2009 on which day the alleged detenue and the first respondent shall appear before this Court and make available to this Court the marriage certificate to confirm that their marriage has been solemnised and registered under the Special Marriage Act. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPCrl.427/2009 -8-