IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(Crl.).No. 400 of 2009(S) --------------------------- PETITIONER : --------------- JITHESH, AGED 23, S/O. RAGHAVAN, ARIMBOORAVALAPPIL KOLOLAMBU P.O., EDAPPAL, MALAPPURAM. BY ADV. SRI.B.S.SURESH KUMAR SRI.SUNIL.M.KARANY RESPONDENTS: --------------- 1. SUB INSPECTOR OF POLICE, KODUVALLY POLICE STATION, KOZHIKODE. 2. ABDURAHMAN HAJI, KUNDUNGARA HOUSE, ELETTIL P.O., KODUVALLY, KOZHIKODE. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.400 of 2009 ------------------------------------- Dated this the 12th day of October, 2009 JUDGMENT 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.Sumayya, daughter of the 2nd respondent, who, the petitioner claims, is his wife. 2. This petition was filed on 01.10.09. The same was admitted on 05.10.09 and the case was posted to this date. 3. Today when the case is called, the petitioner is present along with his counsel. The 2nd respondent, his wife- Suhara Beevi and his brother Shamsudhin are present. They are represented by a counsel. The 2nd respondent has brought the alleged detenue Ms.Sumayya along with him. 4. We interacted with Ms.Sumayya in open court. She stated that she is aged above 22 years, she having been born on 16.04.1987. She has passed her T.T.C examination and has been working as a teacher in Ishad Public School for some time. As W.P(Crl.) No.400 of 2009 2 she comes from the custody of the 2nd respondent, we permitted the alleged detenue to remain in the Chamber without being influenced by anyone. We told her that she should think over and contemplate and give us her response to our questions when we meet her after lunch recess. 5. After lunch recess, we interacted with the alleged detenue, the petitioner and his uncle-Mohandas as also the 2nd respondent, his wife and his brother. We interacted with them separately initially and thereafter jointly. Their counsel as also the learned Government Pleader were also present. The 2nd respondent has filed a counter affidavit explaining his stand. 6. The alleged detenue Ms.Sumayya states before us that she wants now to go with the petitioner herein. She states that they are in love. They had decided to get married. They were residing together from 07.06.09 to 26.06.09. On 26.06.09, they appeared before the learned Judicial Magistrate of the First Class, Thamarassery in pursuance of the directions of this Court in Ext.P2. There, since the 2nd respondent raised an allegation that the alleged detenue has some mental abnormality, she was sent to the medical expert. She was housed temporarily in a rescue home. The learned Magistrate thereafter passed Ext.P4 W.P(Crl.) No.400 of 2009 3 order after recording Ext.P3 statement. As per Ext.P4 order dated 06.07.09 she was permitted to go along with her parents. Accordingly she was residing there along with her parents from 06.07.09. The petitioner asserted and the alleged detenue admitted that she had sent Ext.P5 letter to the petitioner while she was residing with her parents. Even though the alleged detenue did not want any action to be taken against her parents, she stated that she wants to go with the petitioner. She was kept in the house of her parents. 7. The petitioner and his uncle agree and accept that the petitioner has married the alleged detenue. They are willing to take her along with them. They relied on Ext.P1 marriage certificate issued by the Marriage Officer of the Trichur Corporation. In response to a specific query by this Court the petitioner and the alleged detenue as also the uncle of the petitioner assert and accept that they shall get the marriage between the petitioner and the alleged detenue solemnised and registered again under the Special Marriage Act should there be any defect or inadequacy in Ext.P1. In these circumstances, the alleged detenue prays that she may be permitted to go along with the petitioner herein. W.P(Crl.) No.400 of 2009 4 8. In a petition for issue of a writ of habeas corpus, this Court is primarily concerned with the question whether the alleged detenue has been detained and confined against her wishes/desire. We are satisfied, in the facts and circumstances of the case, that the alleged detenue is now in the custody of the 2nd respondent and his wife against her wishes and desire. She is a woman, who has attained majority. She is above the age of 22 years. She has T.T.C qualification and has been working as a teacher. We respect her wishes and desire. We respect her decisional autonomy. 9. The 2nd respondent and his wife are unable to accept the decision of their daughter. They submit that the alleged detenue is mentally not alright. This question was considered by the learned Magistrate in Ext.P4 and it has been recorded that the medical certificate obtained shows that she is normal and capable of taking her own decision. Even admittedly they are planning to give her away in marriage to some others. We are satisfied in the course of our interaction with Ms.Sumayya that she does not suffer from any mental ailment or aberration that must or can induce in us any dissatisfaction against the response made by her and the decision taken by her. W.P(Crl.) No.400 of 2009 5 10. We are, in these circumstances, of the opinion that this Writ Petition can be allowed and the alleged detenue can be permitted to leave the Court in accordance with her choice. As stated earlier, she wants to go along with the petitioner herein. We note the submission of the petitioner and the alleged detenue that they shall get their marriage registered under the Special Marriage Act and produce before us certificate to confirm such marriage if time is given. 11. There is also one surviving irrelevant dispute. The 2nd respondent and his wife submit that some ornaments were taken away by the alleged detenue when she left their house. The alleged detenue and the petitioner agree and accept that on the next date of posting whatever ornaments of the alleged detenue are available with them shall be returned by them to the 2nd respondent. We make record of that submission. 12. This Writ Petition is accordingly allowed. We permit the alleged detenue to leave the Court in accordance with her own wishes and desire. In tune with her decision, we permit her to accompany the petitioner from this Court. We accept the submission of the petitioner and the alleged detenue that they shall get their marriage registered under the provisions of the W.P(Crl.) No.400 of 2009 6 Special Marriage Act and produce before this Court certificate to prove such marriage on 23.11.2009. We further accept their submission that on 23.11.09, they shall return to the 2nd respondent whatever ornaments of the alleged detenue that are available with them. 13. Call on 23.11.09. 14. The petitioner and the alleged detenue express an apprehension of physical harm, but the learned Government Pleader accepts that necessary action shall be taken by the police if there be any complaints or grievance by either side. The learned Government Pleader agrees that the police shall escort the petitioner and the alleged detenue to the house of the petitioner at Edappal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-