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 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(Crl.).No. 453 of 2009(S) --------------------------- PETITIONER(S): --------------- KUNJAMMA SAMUEL, AGED 59 YEARS,W/O.SAMUEL,PANANGADEN KUZHIYILL HOUSE,AICADU,KODUMON P.O.,ADOOR TALUK. BY ADV. SRI. K.SHAJ SRI.L.RAJ MOHAN SRI.SAJJU.S RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 3. THE CIRCLE INSPECTOR OF POLICE,ADOOR. 4. SUB INSPECTOR, KODUMON POLICE STATION,KODUMON. 5. SHAJI SAMUEL, AGED 40 YEARS,VALLIYATHU HOUSE, KAITHAPARAMBU P.O.,ENATHU VILLAGE,ADOOR. BY G.P. SRI. K.J. MOHAMMED ANZAR. ADV. SRI.C.S.MANILAL FOR R5 SRI.S.NIDHEESH FOR R5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.453 of 2009-S ------------------------------------------------- Dated this the 24th day of February, 2010 JUDGMENT Basant,J. This judgment must be read in continuation of the earlier orders passed by us from 5/11/09 resting with the last order dated 15/2/10. 2. The petitioner has come to this Court raising the allegation that her daughter Susan Samuel, a woman aged 26 years, was missing from 22/10/09. According to the petitioner, she was allegedly being kept under detention and confinement by the 5th respondent herein - a married person having a wife and one child. 3. Notice was issued. The alleged detenue appeared before this Court. The alleged detenue was traced by the W.P.(Cri) No.453 of 2009 -: 2 :- police from Mumbai on 14/11/09. She was produced before the learned Magistrate on 15/11/09. The learned Magistrate had allowed her to go with the petitioner herein. Accordingly, the alleged detenue was with her mother - the petitioner herein, from 15/11/09. The alleged detenue - an adult woman, aged 26 years, an educated person - a M.Com. degree holder, asserted before us on 23/11/09 that she does not want to continue with her mother. According to her, she had become pregnant through the 5th respondent and she wanted to return with the 5th respondent. 4. There were broad terms of agreement and accordingly the alleged detenue was accommodated at the Shanthinikethan Hostel, Kochi, from 23/11/09 - the date on which she came to this Court along with her mother. Thereafter, postings were given subsequently. The alleged detenue till this date has continued in the Shanthinikethan Hostel. It is confirmed that she is pregnant. The 5th respondent owns the responsibility for the pregnancy. The alleged detenue and the 5th respondent want to be W.P.(Cri) No.453 of 2009 -: 3 :- permitted to return together from this Court. According to them, they want to get married and given some time, they shall be producing the marriage certificate before this Court. 5. The petitioner - the mother of the alleged detenue, is unable to accept the relationship between the alleged detenue and the 5th respondent. She has not come to this Court today. Her brother Mr. K.S. James has come to this Court today to represent her. Her counsel Mr.K. Shaj is also present. 6. We have ascertained from the Family Court, Thiruvalla, and we are informed vide letter dated 22/2/10 of the Family Court, Thiruvalla, that the marital tie between the 5th respondent and his former wife now stands dissolved on an application filed by such wife for divorce as per the order dated 22/2/10 in O.P.(Div)No.925/09. 7. The learned counsel for the petitioner submits that the alleged detenue having already become pregnant through the 5th respondent and she being stead fast in her assertion that she wants to leave with the 5th respondent and the 5th respondent W.P.(Cri) No.453 of 2009 -: 4 :- having already obtained divorce and having expressed his willingness to enter valid matrimony with the alleged detenue in accordance with the provisions of the Special Marriage Act, the petitioner, though she is unable to accept the relationship, does not now want to stand against this Court permitting the alleged detenue to go with the 5th respondent. But the learned counsel for the petitioner as also the brother of the petitioner who has come to this Court today to represent her, pray that there may be a direction to the alleged detenue and the 5th respondent to produce before this Court a certificate of marriage to confirm that their marriage has been solemnized under the provisions of the Special Marriage Act along with a copy thereof to be furnished to the petitioner. Specific directions to that effect may be given. At least, the petitioner may be permitted to have the satisfaction that her daughter is legally married to the 5th respondent, submits counsel. 8. The learned counsel for the 5th respondent, and the 5th respondent who is personally present before this Court today, submit that the marriage under the Special Marriage Act shall be solemnized as early as possible - at any rate, before the next date of posting, if two months time is given. It is further W.P.(Cri) No.453 of 2009 -: 5 :- submitted that the original marriage certificate shall be produced before this Court on that date and a copy thereof shall be furnished to the petitioner. 9. The alleged detenue submits that she has received all her personal belongings except her passport and driving licence. The brother of the petitioner, after contacting the petitioner over the telephone, confirms that the passport and the driving licence of the alleged detenue shall be handed over through counsel to the alleged detenue and the 5th respondent within a period of 5 days. We accept that submission. 10. In the result: (a) This writ petition is dismissed. (b) The alleged detenue, who has appeared before this Court on 23/11/09 and has thereafter continued to reside at the Shanthinikethan Hostel as per the directions of this Court, is permitted to leave this Court along with the 5th respondent as desired by her. (c) We record the submission made on behalf of the petitioner that the passport and the driving licence of the alleged detenue shall be handed over to the alleged detenue through the learned counsel for the petitioner and the learned counsel W.P.(Cri) No.453 of 2009 -: 6 :- for the 5th respondent within a period of 5 days from this date. 11. We further take note of the undertaking of the 5th respondent and the alleged detenue that their marriage under the Special Marriage Act shall be performed and solemnized as expeditiously as possible and a marriage certificate under the Special Marriage Act along with a copy thereof to be furnished to the petitioner shall be produced before this Court on 9/4/2010. 12. Call this petition again on 9/4/10 for production of the marriage certificate along with a copy thereof. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge W.P.(Cri) No.453 of 2009 -: 7 :- R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.453 of 2009-S ------------------------------------------------- Dated this the 8th day of February, 2010 ORDER Basant,J. The petitioner and his counsel are present. Along with them, Sri. K.S. James - the brother of the petitioner, has also come to this Court. The petitioner behaves in a state of great excitement, anxiety and grief. She is unable to control herself. She states that she does not want anything to do with the alleged detenue. If the alleged detenue persists in her stand that she has to marry the 5th respondent, she states that appropriate decision may be taken by the Court. She does not then want to take the alleged detenue with her. If the alleged detenue is willing to forget the 5th respondent and come with the petitioner, the petitioner shall look after the alleged detenue and her child to be born, submits the petitioner. Stating this she withdrew from the Chamber. W.P.(Cri) No.453 of 2009 -: 8 :- 2. Sri.K.S. James - the brother of the petitioner, as also the learned counsel for the petitioner request the Court that appropriate orders safeguarding the interests of the alleged detenue - Susan Samuel, aged 26 years, may be passed by the Court. Even last time it was agreed that the 5th respondent shall now obtain divorce from his former wife who has already filed an application for divorce against him on the ground of adultery and that after securing such divorce, the 5th respondent shall take steps to get legally married to the alleged detenue. 3. The 5th respondent and his counsel are present. It is submitted that O.P.No.925/09 filed by the wife of the 5th respondent - one Eliyamma Philip, is pending before the Family Court, Thiruvalla. That petition is for divorce on the ground of adultery. That case now stands posted to 19/2/10. It is submitted that on the next date of posting, the 5th respondent shall admit his liability to suffer a divorce on the ground of adultery. It is admitted by him before us already that he is responsible for the pregnancy of the alleged detenue. The 5th respondent and his counsel, in these circumstances, submit that the 5th respondent has not been able to secure an order of divorce purely on account of procedural reasons. The learned W.P.(Cri) No.453 of 2009 -: 9 :- counsel for the 5th respondent and the 5th respondent submit that the needful shall be done to get the O.P. for divorce disposed of finally by the next date of posting. Request shall be made to the court to dispose of O.P.No.925/09 on the next date of posting it self leaving the other incidental matters to be considered later if that be necessary. At any rate, they submit that by the next date of posting, prayer shall be made for an order of divorce and that fact shall be reported to this Court. 4. Our information about the petition filed by the present wife of the 5th respondent and the reasons/grounds on which divorce is sought is purely on the basis of the submissions made by the 5th respondent and his counsel. We do, in the peculiar facts and circumstances of this case, feel obliged to call for a report from the Family Court, Thiruvalla, with a direction to the Family Court, Thiruvalla, to dispose of O.P.No.925/09 on 19/2/10 itself if possible. If divorce has been sought on the ground of adultery by the wife of the 5th respondent and the 5th respondent accepts his liability to suffer divorce subject to further directions that may be issued regarding maintenance, custody etc., we are satisfied and we feel that it must be possible for the Family Court to dispose of O.P.No.925/09 relating to the main W.P.(Cri) No.453 of 2009 -: 10 :- prayer for divorce expeditiously. 5. We do, in these circumstances, direct the Family Court, Thiruvalla, to dispose of O.P.No.925/09 as expeditiously as possible in accordance with law. We call for a report from the Family Court, Thiruvalla, on the steps taken in O.P.No.925/09 by the next date of posting. We post this case to 24/2/10. The report of the Family Court must reach this Court by then. 6. Till that date i.e., 24/2/10, it is agreed that the alleged detenue shall continue to be accommodated at the Shanthinikethan Hostel. The expenses for such accommodation shall be met by the 5th respondent. All other conditions stipulated vide earlier orders dated 23/11/09 and 23/12/09 shall continue to remain in force. 7. The petitioner has handed over to the alleged detenue a bag which is said to contain her essential clothing as well as all documents relating to her qualification etc. The alleged detenue receives the same. An acknowledgment thereof shall be given by her to the petitioner on the next date of posting. 8. The alleged detenue submits that it has not been possible for her to get medical consultations done. The learned Government Pleader offers to ensure that the alleged detenue is W.P.(Cri) No.453 of 2009 -: 11 :- taken for medical consultations from the hostel by women Constables not in uniform. 9. Call this petition again on 24/2/10 at 1.45 p.m. in the Chamber. 10. Hand over copies of this order to both sides. The Registry shall communicate this order immediately to the Family Court, Thiruvalla. R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/