IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 400 of 2009(S)
1. JITHESH, AGED 23, S/O. RAGHAVAN,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE,
... Respondent
2. ABDURAHMAN HAJI, KUNDUNGARA HOUSE,
For Petitioner :SRI.B.S.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :12/10/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(Crl.) No.400 of 2009
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Dated this the 12th day of October, 2009
JUDGMENT
BASANT, J.
The petitioner has come to this Court with this petition for
issue of a writ of habeas corpus to search for, trace and produce
Ms.Sumayya, daughter of the 2nd respondent, who, the petitioner
claims, is his wife.
2. This petition was filed on 01.10.09. The same was
admitted on 05.10.09 and the case was posted to this date.
3. Today when the case is called, the petitioner is
present along with his counsel. The 2nd respondent, his wife-
Suhara Beevi and his brother Shamsudhin are present. They are
represented by a counsel. The 2nd respondent has brought the
alleged detenue Ms.Sumayya along with him.
4. We interacted with Ms.Sumayya in open court. She
stated that she is aged above 22 years, she having been born on
16.04.1987. She has passed her T.T.C examination and has been
working as a teacher in Ishad Public School for some time. As
W.P(Crl.) No.400 of 2009 2
she comes from the custody of the 2nd respondent, we permitted
the alleged detenue to remain in the Chamber without being
influenced by anyone. We told her that she should think over
and contemplate and give us her response to our questions when
we meet her after lunch recess.
5. After lunch recess, we interacted with the alleged
detenue, the petitioner and his uncle-Mohandas as also the 2nd
respondent, his wife and his brother. We interacted with them
separately initially and thereafter jointly. Their counsel as also
the learned Government Pleader were also present. The 2nd
respondent has filed a counter affidavit explaining his stand.
6. The alleged detenue Ms.Sumayya states before us that
she wants now to go with the petitioner herein. She states that
they are in love. They had decided to get married. They were
residing together from 07.06.09 to 26.06.09. On 26.06.09, they
appeared before the learned Judicial Magistrate of the First
Class, Thamarassery in pursuance of the directions of this Court
in Ext.P2. There, since the 2nd respondent raised an allegation
that the alleged detenue has some mental abnormality, she was
sent to the medical expert. She was housed temporarily in a
rescue home. The learned Magistrate thereafter passed Ext.P4
W.P(Crl.) No.400 of 2009 3
order after recording Ext.P3 statement. As per Ext.P4 order
dated 06.07.09 she was permitted to go along with her parents.
Accordingly she was residing there along with her parents from
06.07.09. The petitioner asserted and the alleged detenue
admitted that she had sent Ext.P5 letter to the petitioner while
she was residing with her parents. Even though the alleged
detenue did not want any action to be taken against her parents,
she stated that she wants to go with the petitioner. She was kept
in the house of her parents.
7. The petitioner and his uncle agree and accept that the
petitioner has married the alleged detenue. They are willing to
take her along with them. They relied on Ext.P1 marriage
certificate issued by the Marriage Officer of the Trichur
Corporation. In response to a specific query by this Court the
petitioner and the alleged detenue as also the uncle of the
petitioner assert and accept that they shall get the marriage
between the petitioner and the alleged detenue solemnised and
registered again under the Special Marriage Act should there be
any defect or inadequacy in Ext.P1. In these circumstances, the
alleged detenue prays that she may be permitted to go along
with the petitioner herein.
W.P(Crl.) No.400 of 2009 4
8. In a petition for issue of a writ of habeas corpus, this
Court is primarily concerned with the question whether the
alleged detenue has been detained and confined against her
wishes/desire. We are satisfied, in the facts and circumstances
of the case, that the alleged detenue is now in the custody of the
2nd respondent and his wife against her wishes and desire. She
is a woman, who has attained majority. She is above the age of
22 years. She has T.T.C qualification and has been working as a
teacher. We respect her wishes and desire. We respect her
decisional autonomy.
9. The 2nd respondent and his wife are unable to accept
the decision of their daughter. They submit that the alleged
detenue is mentally not alright. This question was considered by
the learned Magistrate in Ext.P4 and it has been recorded that
the medical certificate obtained shows that she is normal and
capable of taking her own decision. Even admittedly they are
planning to give her away in marriage to some others. We are
satisfied in the course of our interaction with Ms.Sumayya that
she does not suffer from any mental ailment or aberration that
must or can induce in us any dissatisfaction against the response
made by her and the decision taken by her.
W.P(Crl.) No.400 of 2009 5
10. We are, in these circumstances, of the opinion that
this Writ Petition can be allowed and the alleged detenue can be
permitted to leave the Court in accordance with her choice. As
stated earlier, she wants to go along with the petitioner herein.
We note the submission of the petitioner and the alleged detenue
that they shall get their marriage registered under the Special
Marriage Act and produce before us certificate to confirm such
marriage if time is given.
11. There is also one surviving irrelevant dispute. The 2nd
respondent and his wife submit that some ornaments were taken
away by the alleged detenue when she left their house. The
alleged detenue and the petitioner agree and accept that on the
next date of posting whatever ornaments of the alleged detenue
are available with them shall be returned by them to the 2nd
respondent. We make record of that submission.
12. This Writ Petition is accordingly allowed. We permit
the alleged detenue to leave the Court in accordance with her
own wishes and desire. In tune with her decision, we permit her
to accompany the petitioner from this Court. We accept the
submission of the petitioner and the alleged detenue that they
shall get their marriage registered under the provisions of the
W.P(Crl.) No.400 of 2009 6
Special Marriage Act and produce before this Court certificate to
prove such marriage on 23.11.2009. We further accept their
submission that on 23.11.09, they shall return to the 2nd
respondent whatever ornaments of the alleged detenue that are
available with them.
13. Call on 23.11.09.
14. The petitioner and the alleged detenue express an
apprehension of physical harm, but the learned Government
Pleader accepts that necessary action shall be taken by the
police if there be any complaints or grievance by either side.
The learned Government Pleader agrees that the police shall
escort the petitioner and the alleged detenue to the house of the
petitioner at Edappal.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-