IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 WP(Crl.).No. 476 of 2010(S) --------------------------- PETITIONER: --------------- VINODAN, S/O.GOPALAN, AGED 34 YEARS, EDATHATHAZHEKKANI HOUSE, PONMERY AMSOM, PARAMBIL DESOM, VADAKARA TALUK, KOZHIKODE. BY ADV. SRI.SANTHARAM.P RESPONDENTS: --------------- 1. KOTTATH CHATHU, AGED 60 YEARS, KOTTATH HOUSE, KIZHAKKAYIL PALATHAYI, KADAVATHUR P.O., THALASSERY TALUK, KANNUR DISTRICT. 2. ROHINI, W/O.CHATHU, AGED 55 YEARS, KOTTATH HOUSE, KIZHAKKAYIL PALATHAYI, KADAVATHUR P.O., THALASSERY TALUK, KANNUR DISTRICT. 3. SUPERINTENDENT OF POLICE, KANNUR. 4. SUPERINTENDENT OF POLICE (RURAL), VADAKARA. 5. SUB INSPECTOR OF POLICE, VADAKARA, KOZHIKODE DISTRICT. 6. SUB INSPECTOR OF POLICE, PANOOR, KANNUR DIST. SR. GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR ADV. SMT.M.R.JAYALATHA FOR R1 & 2 SRI.M.C.RATNAKARAN FOR R1 & 2 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.476 of 2010 ***************************** Dated this the 14th day of December, 2010 JUDGMENT BASANT, J. The petitioner, a young man, aged about 34 years, has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his wife Prasila (hereinafter referred to as `the alleged detenue'), a woman aged about 37 years with two children (daughters, aged 14 and 11 years). 2. According to the petitioner, the alleged detenue Prasila was earlier married to another person. In that relationship, two children (now aged 14 and 11 years - both daughters) were born. The alleged detenue along with the children was residing in a house which belonged jointly to her and her two children. After the death of her husband, the alleged detenue developed intimacy with the petitioner. They fell in love. They decided to get married. They allegedly got married in accordance with the customary and religious rites of Hindu community, to which both belong, on 02.08.2010 at the Purameri Karayattu Vishnu Temple. Respondents 1 and 2 are W.P(Crl) No.476 of 2010 2 the parents of the alleged detenue. They did not approve of the relationship between the petitioner and the alleged detenue. On the date of marriage in the night, the alleged detenue and children were forcibly taken away from the house where the alleged detenue resides along with her children. She was taken away forcibly to the house of respondents 1 and 2. The children were later shifted from the schools, which they were attending and have now been admitted to new schools. The petitioner is not permitted to have any contact with the alleged detenue. In these circumstances, the petitioner filed a petition before the learned Judicial Magistrate of the First Class, Vadakara, under Section 97 of the Code of Criminal Procedure. The alleged detenue was produced before the learned Magistrate. She was allegedly threatened and intimidated and she stated before Court that she was not confined by anyone. The petitioner and his wife were not permitted to interact. She was taken away from the court premises by respondents 1 and 2 and their henchmen on 18.09.2010. She continues under detention and confinement. It is, with these grievances, that the petitioner came to this Court with this petition on 08.12.2010. 3. This petition was admitted on 09.12.2010. Notice was ordered to the respondents. The case was posted to this date. W.P(Crl) No.476 of 2010 3 4. Today when the case is called, the petitioner is present. He is represented by his counsel. Respondents 1 and 2 have appeared before Court. They are represented by their counsel. Along with respondents 1 and 2, Dineshkumar, the elder brother of the alleged detenue, has also come to Court. 5. As the alleged detenue comes to Court along with/in the custody of respondents 1 and 2, we permitted the alleged detenue to remain alone in the Chamber without opportunity for respondents 1 and 2 or their elder son to have any interaction with the alleged detenue. The alleged detenue claimed before us an opportunity to speak to and interact with the petitioner. That permission was granted. They interacted with each other during the pre lunch session. 6. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of her parents and brother. Subsequently we interacted with the alleged detenue in the presence of the petitioner also. The learned counsel for the petitioner, the learned counsel for respondents 1 and 2 and the learned Government Pleader were also present. 7. The alleged detenue and the petitioner assert before us categorically that after the death of the husband of the W.P(Crl) No.476 of 2010 4 alleged detenue, they have fallen in love. They have decided to get married and they had got married on 02.08.2010 at the Purameri Karayattu Vishnu Temple. They were not permitted to live together by the relatives of the alleged detenue. They assert that they want to leave the Court together and resume cohabitation as husband and wife. 8. Respondents 1 and 2 and their son are not able to approve of the relationship between the petitioner and the alleged detenue. They have their own reasons for the same. They however, state before us that the petitioner and the alleged deenue can, if they so want, go away together. But respondents 1 and 2 do not want the custody of the two children of the alleged detenue to be disturbed. According to them, the alleged detenue as well as her children have deposits/properties in their name. Respondents 1 and 2 apprehend that the alleged detenue under the influence of the petitioner, may waste or take away properties/deposits belonging to the children. Appropriate safeguards may be insisted and the alleged detenue can be permitted to go along with the petitioner, submit respondents 1 and 2 and their elder son. W.P(Crl) No.476 of 2010 5 9. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenue is under any illegal detention or confinement. We are satisfied that the alleged detenue is married to the petitioner and that they want to live together. The alleged detenue has not been able to do the same so far because of the resistance and disapproval of respondents 1 and 2. As respondents 1 and 2 now agree that the alleged detenue can go with the petitioner, we are satisfied that no further directions are necessary. 10. The alleged detenue and the petitioner say that one thali, one gold finger ring, one mobile phone and an amount of Rs.10,000/- (Rupees Ten thousand only), which belong to the petitioner and the alleged detenue are retained by respondents 1 and 2. Respondents 1 and 2 agree to return the same. They admit that one thali, one gold finger ring, one mobile phone and some amounts (they say that they have not counted the amount and are not able to specify the same) are available with them. They are willing to return the same to the petitioner and the alleged detenue. They shall do the same before the S.I of Police, Vadakara, ie. the 5th respondent at 5 p.m on 19.12.2010. It is agreed that until parties seek directions from the Family Court, W.P(Crl) No.476 of 2010 6 the children can continue in the custody of respondents 1 and 2. It is agreed that the alleged detenue, the mother of the minor children, shall be permitted to contact the minor children over the telephone whenever she wants. It is further agreed that the alleged detenue, the mother of the children, shall be permitted to interact with the children at the schools where the children are now studying. It is made clear that it shall be open to the parties to approach the Family Court for appointment/declaration of guardian, for directions regarding custody/visitorial rights of the children, and for management of the properties of the children. The above stipulations shall remain in force till the Family Court passes appropriate directions. 11. The alleged detenue stipulates that she shall not in any way encash any fixed deposit receipts in the name of the children nor shall she utilise the interest payable on such deposits. 12. In the result: a) This Writ Petition is allowed; b) The alleged detenue is permitted to leave Court along with the petitioner, her husband, as desired by her; W.P(Crl) No.476 of 2010 7 c) We record the submission of the parties that they shall abide by the stipulations made above until competent courts issue further directions; d) The learned Government Pleader agrees that respondents 5 and 6 shall be instructed to ensure that the above terms are complied with by both parties; e) Both parties agree that there shall be no threat, intimidation or retaliation against each other on the basis of the relationship between the petitioner and the alleged detenue; f) Parties shall be at liberty to complain to respondents 5 and 6 and the learned Government Pleader undertakes that respondents 5 and 6 shall take necessary action if there be any genuine complaints from either side. Hand over copies of this judgment to the learned counsel for both sides and the learned Government Pleader. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/