IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(Crl.).No. 199 of 2009(S) --------------------------- PETITIONER(S): --------------- BAIJU P.G., S/O.GOPALAN, PULLIKKANTHOTTIYIL, MUNDAKKAYAM. BY ADV. SRI.LALJI P.THOMAS RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REP.BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. SUPERINTENDENT OF POLICE, KOTTAYAM. 3. CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLY. 4. SUB INSPECTOR OF POLICE, MUNDAKKAYAM. 5. SUB INSPECTOR OF POLICE, PAMBADI. 6. SUB INSPECTOR OF POLICE, ERATTUPETTA. 7. SUB INSPECTOR OF POLICE, AYARKKUNNAM. 8. TOMY, KADUVAMBHAGAM, PAMBADI, KOTTAYAM. 9. JAYAPRAKASH P.K. @ JAYAN, PUTHUPARAMBIL RAJENDRA PRASAD COLONY P.O., KARINILAM, MUNDAKKAYAM. .....2 -: 2:- 10. THAHA @ THACHY, MUTTATHI PARAMBIL, NADACKEL, ERATTUPETTA P.O. 11. SUSAMMA T.CHACKO, W/O.SHAJI VARGHESE, THARAYIL HOUSE, AYARKUNNAM, AMAYANNOOR, KOTTAYAM. ADV. SRI.BABY THOMAS FOR R10 GOVERNMENT PLEADER SRI.K.J. MOHAMMED ANZAR FOR R1-6 SRI.V.K.SUNIL FOR R8 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.199 of 2009-S ------------------------------------------------- Dated this the 9th day of July, 2009 JUDGMENT Basant,J. The petitioner – a person aged above 35 years, has come to this Court with this writ petition for issue of a writ of habeas corpus to search for, trace and produce Ms.Anuja Roseline Shaji – a girl/woman aged above 18 years. It is the case of the petitioner that the alleged detenue is a woman above 18 years and that he and the alleged detenue have a long period of acquaintance and association. They were in love. They had decided to get married. They had executed Ext.P1 agreement for marriage on 4/4/2009. Thereafter, the alleged detenue and the petitioner were living together for a period of about 40 days. While they were residing in the house of the petitioner, on the basis of a complaint by the mother of the alleged W.P.(Cri) No.199 of 2009-S -: 2 :- detenue i.e., the 11th respondent herein, the alleged detenue was taken into custody by the police and was produced before the learned Magistrate. On 12/4/09 when she was produced before the learned Magistrate, the learned Magistrate recorded her statement and accepted her version that she is an adult woman and that she has contracted marriage under Ext.P1 agreement with the petitioner herein. She was allowed to by the learned Magistrate to leave the court accompanied by the petitioner herein. 2. Thereafter, the petitioner and the alleged detenue were living together in the house of the petitioner till 20/5/09. At mid-night on that date, the petitioner alleged that his wife – the alleged detenue, was forcibly taken away by muscle men allegedly engaged by the 11th respondent – the mother of the alleged detenue and the 8th respondent – husband of a paternal aunt of the alleged detenue. The petitioner came to this Court as efforts made by him to locate the alleged detenue did not succeed. According to the petitioner, respondents 8 and 11, along with some other muscle men including respondents 9 and 10, were forcibly detaining the alleged detenue against her wishes. The police had registered a crime as Crime No.220/09 of the Mundakkayam Police Station; but they were not able to trace W.P.(Cri) No.199 of 2009-S -: 3 :- the alleged detenue. It is at that juncture, the petitioner came to this Court with this writ petition. 3. The writ petition was filed on 22/5/09 and was admitted on 23/5/09. The Investigating Officers from time to time had reported that they were not able to trace the alleged detenue. It was reported that the detenue had allegedly been taken out of India to Australia. 4. This Court issued peremptory directions to the police to ensure that a proper investigation is conducted and no stone is left unturned to procure the presence of the alleged detenue. The matter was being adjourned from time to time. This morning when the Court started sitting, the learned Government Pleader submitted that the alleged detenue has been traced. She has come back to India by flight this morning. The police have taken her into protective custody and shall be producing her before this Court after lunch, it was submitted. 5. Accordingly a supplementary list was published and the case was called at 1.45 p.m. Before that, we had interactions with the alleged detenue in the Chamber during lunch recess. The response of the alleged detenue was later ascertained in court. She makes a categoric statement that she is the wife of W.P.(Cri) No.199 of 2009-S -: 4 :- the petitioner herein. She is a software engineering student in Australia. According to her, she had entered into Ext.P1 agreement after she attained majority. She had entered into such agreement of marriage only after she was legally competent to enter such an agreement and thereafter, she had started residence with the petitioner as his wife. She claims to have had a long period of association with the petitioner even from the days when she was a student in the school here. She stated that she had decided to get married to the petitioner and to live with him on her own free will and desire. She further submitted that while she was residing with the petitioner herein, she was taken to the learned Magistrate and the learned Magistrate had permitted her to go with the petitioner as desired by her. But even after she so resumed residence with the petitioner as approved by the learned Magistrate, she was forcibly taken away on the mid-night of 20/5/09 by some persons using brute force. She submitted that she was initially forcibly removed to Salem and then to Chennai and from there by flight to Australia. She submits that she could not resist their attempts and did not succeed in enforcing her will/desire to remain in India. After she reached Australia also, the alleged detenue submits that she was not permitted to have contacts and that long later she, W.P.(Cri) No.199 of 2009-S -: 5 :- taking advantage of the law in Australia under which a major person cannot be detained, had at last found her way into India and has reached India this morning. She stated before us in the Chamber that she had given the statutory declaration before the authorities at Australia. But that was done under duress and only to save herself from unsavory consequences which she apprehended would ensue if she did not oblige their detractors. She disowns the said statutory declaration now. 6. To a pointed query put by this Court as to with whom she would like to leave the court, she makes an unambiguous statement that she would like to go with her husband - the petitioner herein. 7. The wisdom of her decision or the suitability of the spouses for each other are not the concerns of this court in this application for issue of a writ of habeas corpus under Art.226 of the Constitution. We are convinced from the totality of circumstances that the alleged detenue has been illegally abducted, confined and detained and that she has somehow been able to travel to freedom today. She is a major, she having crossed the rubicon of 18 years. We respect her wishes. We must say that after interacting with the alleged detenue, we are satisfied that she has clear decision and choices. In these W.P.(Cri) No.199 of 2009-S -: 6 :- circumstances, we are satisfied that the alleged detenue can be permitted to leave the court along with the petitioner. 8. No further directions are necessary from this Court as we are informed that the police is already seized of the matter and the investigation is continuing. Rule of law mandates that no person must be permitted to take law into their hands. Concerns of the parents notwithstanding, the right of an adult person to arrange affairs regarding her life and future will have to be respected by courts. More so, in the instant case where this Court is convinced that the alleged detenue is capable of taking decision affecting herself and her future. Whether her decisions are wise or prudent only time can prove and we do not want to hazard any opinion. 9. No further directions are necessary in this writ petition in these circumstances. Needless to say, the police must continue the investigation and take necessary action in accordance with law. 10. We note that the earlier complaint was that the alleged detenue was taken away by force on the mid-night of 20/5/09. We need only direct that the police shall afford necessary protection and ensure that such untoward events are not repeated. The petitioner and the alleged detenue shall be at W.P.(Cri) No.199 of 2009-S -: 7 :- liberty to seek assistance from the police on this aspect. 11. The 8th respondent is represented by a counsel. That counsel submits that though he has been instructed by the 11th respondent also, she has not executed any Vakalath to specifically authorise him. The counsel submits that the 8th and the 11th respondents have no objections against this Court passing appropriate orders in the circumstances of the case. They want to suggest no specific course, submits their counsel. 12. This writ petition is accordingly allowed as indicated above. The alleged detenue is set at liberty and is permitted to leave the Court with the petitioner herein as desired by her. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge W.P.(Cri) No.199 of 2009-S -: 8 :- W.P.(Cri) No.199 of 2009-S -: 9 :-