IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 WP(Crl.).No. 111 of 2011(S) ------------------------------------ PETITIONER(S): --------------------- EMERSE T.ANTONY, S/O ANTONY T.K., AGED 29, THEUMPURAM HOUSE, PALLIKUNNU, VARANTHIRAPILLY POST, THRISSUR. BY ADV. SMT.I.SHEELA DEVI SRI.S.SREEKUMAR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME, MINISTRY OF HOME AFFAIRS, THIRUVANANTHAPURAM- 695001. 2. THE STATION HOUSE OFFICER, TRISSUR EAST POLICE STATION, TRISSUR- 680001. 3. THE SUPERINTENDENT OF POLICE, THRISSUR DISTRICT. PIN-680001. 4. KRISHNANKUTTY K.K., KALLATTUPARAMBIL HOUSE, VALAKAVU, MULAYAM POST, THRISSUR, PIN-680751. 5. ANOOP KRISHNAN, S/O KRISHNANKUTTY K.K., KALLATTUPARAMBIL HOUSE, VALAKAVU, MULAYAM POST, THRISSUR- 680751. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.P.K.BABU & SENIOR GOVERNMENT PLEADER C.M.KAMMAPPU. R4 & R5 BY ADV.SMT.SUMATHY DANDAPANI (SENIOR) & SRI.MILLU DANDAPANI THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR NO.111/2011: PETITIONER'S EXHIBITS: EXT.P1. LAWYER NOTICE. RESPONDENT'S EXHIBITS: EXT.R4A.TRUE COPY OF THE LETTER ISSUED BY DR.V.M.HARIDAS, CONSULTANT PHYSICIAN, WESTFORT HOSPITAL, ON 20.2.2011 REFERRED TO IN THE AFFIDAVIT. EXT.R4B.PHOTOGRAPHS OF the BETROTHAL CEREMONY OF ASHNA KRISHNAN. EXT.R4C. TRUE COPY OF THE LAWYER NOTICE ISSUED ON BEHALF OF MR.ANAND, ALONG WITH HIS PARENTS. EXT.R4D.ORIGINAL OF THE NOTE WRITTEN BY ASHNA KRISHNAN. EXT.R4B. PHOTOCOPY OF CERTIFICATE DATED 17.5.2011 ISSUED BY DR.K.S.MOHAN, CONSULTANT PSYCHIATRIST, CALICUT MEDICAL COLLEGE (RTD.) (Produced along with I.A.No.7342/2011) K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(Crl.) No.111 of 2011-S & I.A.No.5745 of 2011 ---------------------------------------------- Dated, this the 6th day of June, 2011 J U D G M E N T K.M.Joseph, J. This writ of Habeas Corpus is filed for a direction to respondents 1 to 3 to immediately trace out the alleged detenue Ashna Krishnan and to release her from the illegal custody of respondents 4 and 5. 2. Briefly put, the case of the petitioner is as follows: Petitioner and the alleged detenue Ashna Krishnan, who is the daughter of the 4th respondent are in love and they decided to marry and live together as husband and wife. The 5th respondent is the brother of the alleged detenue. The alleged detenue is aged 24 years and is doing her LL.M 2nd Semester. Petitioner belongs to Christian community and the alleged detenue is a Hindu and there is objection to their marriage. 3. A detailed counter affidavit is filed in the matter by respondents 4 and 5. It is their case that the writ petition will not lie. WPCR No.111/2011 -2- 4. Originally, when the matter came up on 15.3.2011 we noted that the alleged detenue who is a student of LL.M Course submitted that she is in love with the petitioner and she wants to marry him and that she would like to continue with her studies. In the circumstances, we had directed the alleged detenue to reside in a hostel. Thereafter, when the matter came up on 17.3.2011 we interacted with the parties. We permitted the parents to interact with the alleged detenue in the hostel. On 22.3.2011 it was brought to our notice that the alleged detenue ran away from the hostel. The matter stood posted to 23.3.2011. On 23.3.2011 again, the alleged detenue was not produced. We had to direct the Director General of Police to personally supervise the investigation being headed by the Superintendent of Police, Thrissur. It was on 25.3.2011 that the alleged detenue appeared before us. We interacted with her. We also allowed her to interact with her mother and paternal aunt. The alleged detenu brought to our notice that her marriage has taken place with the petitioner under the auspices of the SNDP and she submitted that she may be permitted to go with the petitioner. Noting that the parties belonged to two different religions, we were not persuaded WPCR No.111/2011 -3- to hold that there was a valid marriage. We noted that the alleged detenue was not prepared to go with her mother or with her brother though a request was made by the learned senior counsel on their behalf. In the circumstances, we directed the alleged detenue to reside in another hostel. We must notice here that the learned senior Government Pleader also pointed out the problems created by the alleged detenue running away which persuaded us to order her to reside in another hostel. Thereafter, when the matter came on 28.3.2011 the learned counsel for the petitioner submitted that the alleged detenu can reside in Women's Hostel attached to the School of Law, Cochin University. We notice again that the alleged detenue was not inclined to go with her mother. We directed the alleged detenue to be admitted in the Women's Hostel attached to the School of Law, Cochin University and we made it clear that none other than the mother of the alleged detenue will be permitted to interact with the alleged detenue during her stay in the hostel. We had also made it clear that the petitioner will not be permitted to go and interact with the alleged detenue. Thereafter, the matter came up on 5.4.2011. On 7.4.2011 when the matter came up, it was adjourned for further WPCR No.111/2011 -4- consideration to 8.4.2011. When the matter came up on 8.4.2011 we noted that I.A.No.6789/2011 had been filed on behalf of respondents 4 and 5 seeking a direction for medical evaluation of the alleged detenue and the matter was posted to 11.4.2011 and when the matter came up on 12.4.2011 the alleged detenue was directed to continue to reside in the hostel. We also notice that interim order was passed during the vacation which need not detain us. Thereafter, when the matter came up after vacation we had passed an order directing Psychiatric evaluation also be done and we have received a report which shows that the Doctor is of the opinion that the alleged detenue is not showing any psychiatric disorder presently. 5. It is brought to our notice that the alleged detenue and the petitioner have given notice under the Special Marriage Act on 29.3.2011 for solemnizing the marriage and that the period of one month is over. 6. The party respondents have also filed an application to initiate contempt proceedings against the writ petitioner as I.A.No.5745/2011. 7. The alleged detenue is aged 24 years and she is a WPCR No.111/2011 -5- major and in fact she is doing her LL.M. course. No doubt, the learned senior counsel for respondents 4 and 5 submits that initially when the matter was taken up the alleged detenue had not given any indication that she is under any illegal detention. According to the party respondents, the alleged detenue is doing her LL.M and having regard to the facts which included her engagement with another person earlier and her conduct in running away and no case of illegal detention being made out, there is no basis for allowing the petition. It is also her case that the discretion under Article 226 should not be exercised in favour of a person who has been privy to running away by the alleged detenue from where she was directed to reside by this Court. 8. Though it may be true that on the first day the alleged detenue might have said that there is no illegal detention as such, but, at the same time her intention and desire to marry the writ petitioner has been reflected virtually throughout the proceedings. We had allowed ample opportunity to her parents to interact with her in an attempt to see that if there is any possibility she may be persuaded to change her views. But, she has taken an adamant stand that she wants to live with the writ petitioner WPCR No.111/2011 -6- and she will continue her LL.M course even after her marriage. 9. In the circumstances of this case, we do not think that we need retain this matter any further as it is clear that the alleged detenue is not even willing to go and live with her parents and she wants to go with the writ petitioner with whom she has been in love and she has even contracted the marriage though the said marriage turned up to be an invalid one. We notice that her wish is reflected in the fact that she has issued notice under the Special Marriage Act. 10. Undoubtedly, we are very disturbed by the conduct of the writ petitioner and also the alleged detenue in her running away from the hostel where she was directed to reside. In fact, this conduct of the alleged detenue was touched upon by us in the order by which her medical evaluation was directed to be done but we have referred to the fact that the Expert has opined that she does not suffer from any psychiatric disorder at present. We had in fact directed to ascertain whether the alleged detenue is capable of taking an independent and normal decision to contract a marriage and to lead a married life. Certainly when a party comes to the Court under Article 226 the WPCR No.111/2011 -7- conduct must be blemishless and its discretionary jurisdiction can be declined if it is found that the conduct of the party does not warrant exercise of the jurisdiction. But, we also must not overlook the facts of this case. The question involved essentially relates to the liberty of the alleged detenue. No doubt, the learned counsel for the writ petitioner submits that the petitioner has tendered unconditional apology. The alleged detenue in fact has also tendered apology in the matter. 11. We record the submission of the learned counsel for the writ petitioner that the alleged detenue will continue her LL.M. course even after her marriage and the writ petitioner will facilitate the same. 12. We must not overlook the fact that what is in question is the liberty of the alleged detenue. We must also not overlook the fact that it is the clear desire of the alleged detenue to reside with the petitioner. Even if we dismiss the writ petition, we cannot compel the alleged detenue to go and reside with her parents. This is a crucial input to be borne in mind by us when we decide whether having regard to the conduct of the writ petitioner and the alleged detenue in running away from the hostel and in WPCR No.111/2011 -8- fact even the conducting of marriage we should decline jurisdiction. We are of the view that it may not be a fit case for us to either hold that the alleged detenue must go and reside with the parents or that she should continue to reside in the hostel contrary to her desires. We would think that the conduct of the petitioner and alleged detenue was undesirable and borders on contempt. At the same time, the question of contempt is always between the Court and the condemnor. In the interest of substantial justice and in the facts of this case and the result that the taking of action in contempt may produce, we would think that we should impose heavy costs rather than take action in contempt. In such circumstances, we pass the following order: 13. It will be open to the alleged detenue and to the writ petitioner to have their marriage registered in accordance with law under the Special Marriage Act. Since the period of 30 days is over, the alleged detenue will be freed from the obligation to reside in the hostel consequent upon the interim orders. She will be free to proceed to register the marriage. As far as I.A.5745/2011, we close the matter. However, this will be subject to the condition that the writ WPCR No.111/2011 -9- petitioner will pay a sum of Rs.40,000/- (Rupees forty thousand only) as costs, of which Rs.20,000/- (Rupees twenty thousand only) will be paid to respondents 4 and 5 through their learned counsel and Rs.20,000/- (Rupees twenty thousand only) shall be paid to the Government of Kerala by paying it to the Office of the Advocate General and producing the receipt. 15. Call on 13.6.2011 for production of marriage certificate under the Special Marriage Act and for production of receipt for payment of costs as ordered. On application being made by the petitioner and respondents 4 and 5, they will be given copy of the Medical Report dated 2.6.2011. The Writ Petition (Criminal) is disposed of as above. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS