IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(Crl.).No. 468 of 2011(S) -------------------------------------- PETITIONER: ------------------- RAJAGOPAL, S/O.GOVINDAN, AGED 60 YEARS, KALIYALVILA VEEDU, SIVASAKTHI NAGAR, AKKULAM ROAD, THURUVIKKAL P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.R.T.PRADEEP, SRI.SREEKANTH S.NAIR. RESPONDENTS: ------------------------ 1. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF POLICE, OFFICE OF COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM - 695 001. 3. THE CIRCLE INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. 4. THE SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM - 695 001. 5. ANIL ALIAS MANI, AGED 32, S/O.KUMAR, THUNDATHIL VEEDU, NEERAZHI LANE, AKKULAM ROAD, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 001. W.P.(CRL.).NO.468/2011-S: *ADDITIONAL R6. IMPLEADED: 6. SANTHOSH, RESIDING AT KATTIL PUTHEN VEEDU, SREE KRISHNA NAGAR, PULAYANARKOTTA, THURUVIKKAL (P.O), THIRUVANANTHAPURAM - 695 141. *IS IMPLEADED AS PER ORDER DATED 25/10/11 IN I.A. NO. 17057/2011 IN W.P.(CRL.) 468/2011. R1 TO R4 BY GOVT. PLEADER SRI. T. RAMAPRASAD UNNI, R5 BY ADV. SRI.M.R.ARUN KUMAR, ADDL.R6 BY ADV. SRI.N.R.SURESH KUMAR. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRL.).NO.468/2011-S: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF STATEMENT RECORDED BEFORE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM. EXHIBIT P2: TRUE COPY OF THE COMPLAINT DATED 5-10-2011 BEFORE 1ST RESPONDENT. EXHIBIT P3: TRUE COPY OF THE COMPLAINT DATED 5-10-2011 BEFORE 3RD RESPONDENT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ---------------------------------------- W.P.(Crl.)No.468 of 2011 ---------------------------------------- Dated this the 31st day of October, 2011 JUDGMENT Thottathil B.Radhakrishnan, J. The petitioner complains that his daughter Nimisha is in the illegal custody of the 5th respondent Anil. At the stage of admission, we thought it wise to have Nimisha's husband also on the array of parties. He, Santhosh, was impleaded as the 6th respondent. 2. Following earlier orders, the alleged detenue is produced by the Police. Respondents 5 and 6 are present. The 5th respondent's father is also present. The 5th respondent appears to have suffered some injuries to his leg. We see that he has bandage on one leg and was unable to move freely when he came here. He was, therefore, provided the aid of a wheel chair for him to be brought before us. 3. We interacted with the petitioner. He said that he is prepared to take back his daughter Nimisha with him. He vouchsafed that Nimisha was married to the 6th respondent and they have a son. He also knows the affair between Nimisha and the 5th respondent. Neither he nor his wife accepts it. They have an elder daughter, who is WP(Crl.).No.468/2011 2 unfortunately a blind. 4. We interacted with the 6th respondent, Santhosh, Nimisha's husband. He says that their son is with him. He has his version about the incident of Nimisha and the 5th respondent Anil having been seen in an inexcusable situation of physical intimacy in the residence of Santhosh. He says that, following that, local people including the Councillor had come and that resulted in certain incidents including involvement of Police. . 5. We interacted with the 5th respondent Anil. He identifies himself. He is an Autorickshaw driver. He says that his wife's name is Sunitha. They have a child by name Arjun. He says that he knows Nimisha; that Nimisha and he were produced in the Magistrate's Court; from there she went with him for some days, and thereafter, she went to the house of her friend Laly. He does not know as to who intimated Police that Nimisha was staying with Laly. He did not get the notice from the court. His father got it. His father Sreekumar, a tailor, is present today. Anil's elder brother is in Saudi. His wife works in a medical shop. She and child live separated from him. They live in a different house. He says that if Nimisha goes with him, he would take WP(Crl.).No.468/2011 3 her with him. 6. We interacted with Anil's father. He says that he is Sreekumar, the father of the 5th respondent Anil. He is a tailor. He was not earlier aware of the issues that are now seen in this writ petition. When he returned home, he found the notice to his son on the door of the house, that is how he knew of the writ petition. 7. We interacted with the alleged detenue Nimisha. She says that her husband Santhosh is a tipper lorry driver and they have a son by name Adithyan. Nimisha says that her husband created the situation to force her off from his house and he had the modus operandi of having 5th respondent Anil, brought to their house and then make the public believe that she has an affair with him. She is no more desirous to go back with the husband. Nor would she go with her parents. She says that she is living with the 5th respondent Anil for the last couple of months and had also been taking care of him for some days in hospital. She says that, thereafter, she was in the house of Laly, one of her friend, and she is coming from there. She also says that she desires to go with the 5th respondent Anil. Whatever be the consequences or outcome in future, including legal consequences, she, on her own WP(Crl.).No.468/2011 4 volition, desires to keep herself away from her parents, her husband and the child. She told us that she is going with the 5th respondent Anil. We record this. With the aforesaid, we see that Nimisha is a well oriented person. She is not under illegal detention. No orders as sought for in this petition is, hence, called for. 8. There is no question of court permitting her to do any illegality or court vouchsafing her desire to go with any person, since we are clear in our mind that the adulterous living with the 5th respondent is one in violations of law, be it civil or criminal, consequences may follow. Equally, we also note that the 5th respondent has a wife living. He has also a child in that matrimony. Consequences cannot be prevented by any protective order of the court. 9. One thing is certain, the child of the 6th respondent Santhosh will continue with him having regard to the quality of the conduct that we noticed in Nimisha. We order so. However, we further order that the petitioner and his wife, the maternal grandparents of the child of the 6th respondent will be permitted by the 6th respondent to visit his home and interact with the child. We also think that it would be fair on his part to permit the elder sister of Nimisha to interact with WP(Crl.).No.468/2011 5 the child, if she desires, though in the physical sense she cannot see. 10. We also clarify that we have not stated finally on any of the legal issues between the parties including respondents 5 and 6 and Nimisha as also the child of Nimisha and Santhosh. Similarly, this judgment is no expression on the rights and liabilities inter se the 5th respondent Anil, his wife and child. All such issues are open. Ordered accordingly. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS/31.10.11