IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 243 of 2010(S)
1. SHIJI JOHNSON, AGED 33 YEARS
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE COMMISSIONER OF POLICE
3. THE SUB INSPECTOR OF POLICE
4. K.B.AJAYA GOSH
For Petitioner :SMT.K.U.ANUMOL
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :29/06/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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W.P.(CRL) NO. 243 OF 2010
============================
DATED THIS THE 29TH DAY OF JUNE 2010
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
Monisha, a 21 year old adult major woman (date of birth –
6/1/1989). According to the petitioner, the alleged detenue
Monisha was an employee of hers in a Textile shop run by her
and her husband. The father of Monisha expired on 20th April
2010. He was also an employee of the petitioner’s husband. The
relationship between the alleged detenue Monisha and her
father towards the petitioner and her husband was much more
than that of employees and employer. Monisha was living like a
member of the family of the petitioner. At the time of death of
her deceased father, he had wanted the petitioner and her
husband to look after the alleged detenue Monisha. Monisha has
some ailments. She was suffering from T.B. Later she has some
further ailments consequent to the treatment taken. Even when
the father was alive, Monisha was residing in the house of the
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petitioner and her husband along with their three children. The
eldest of the three children is aged about 10 years. According to
the petitioner, the alleged detenue was being detained by the 4th
respondent, who is the brother of the deceased father of the
alleged detenue. He resides along with his wife and the mother
of the alleged detenue. He is looking after the mother of the
alleged detenue. They are not allowing the alleged detenue to
attend the shop of the petitioner. They are forcibly holding her
back. The alleged detenue is aggrieved by such illegal restraint
placed on her. She has been writing letters to the petitioner to
save her from what she described to be illegal detention and
custody. It is in these circumstances that the petitioner came to
this Court with this petition for issue of a writ of habeas corpus.
2. This petition was filed on 23/6/2010. It was admitted on
24/6/2010 and the case was posted to this date for appearance
of the parties.
3. Today when the case is called, the petitioner has come
to court along with her husband. She is represented by a
counsel. The alleged detenue has come to court along with her
mother and the 4th respondent.
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4. As the alleged detenue came to court along with/in the
custody of the 4th respondent, who is allegedly detaining her, we
permitted the alleged detenue to remain alone in the Chamber
before we ascertained and recorded her response. In court, she
stated before us that she wants to speak to the petitioner.
Accordingly, she, an adult major woman, aged about 21 years,
was permitted to interact with the petitioner.
5. After the lunch recess, we interacted with the alleged
detenue. We interacted with her alone initially. Later, we
interacted with her in the presence of her mother and the 4th
respondent. The sister of the alleged detenue was also present.
Subsequently, we interacted with the alleged detenue in the
presence of the petitioner and her husband. Their three children
were also present. Learned counsel for the petitioner was also
present. The learned counsel for the 4th respondent, the learned
counsel for the petitioner as also the learned Government
Pleader were present in the course of such interactions.
6. The alleged detenue states categorically that she does
not want to return along with her mother and the 4th respondent.
She wants to return along with the petitioner. According to her,
she is now not permitted to continue her employment and she
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very much wants to continue the employment. She wants to
reside with the petitioner. Even when her father was alive, she
was so permitted to reside along with the petitioner. She wants
to continue such residence with the petitioner.
7. The grievance of the alleged detenue is that she is being
asked to enter matrimony. Because of her illness, she is
reluctant and unable to agree to a marriage now. She does not
want to get married now. Because of the insistence of her
mother and the 4th respondent that she should get married and
because of their conduct of not allowing her to go for
employment and reside with the petitioner, she does not now
want to return along with the mother and the 4th respondent.
She may be permitted to go with the petitioner, continue her
employment and reside with the petitioner, she prays.
8. The petitioner and her husband state that they are
willing to look after the alleged detenue. The father of the
alleged detenue was an employee of theirs. He had entrusted
the alleged detenue to them to give necessary protection and
patronage to her. They are willing to do the same. She was
actually residing with them. She was being properly attended
to and medicines were being taken by her promptly and
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properly. The petitioner and her husband state that
notwithstanding the present reluctance of the alleged detenue to
enter matrimony, they hope to persuade her later to get
married. That may take some time and the apprehensions of the
alleged detenue will have to be allayed. The petitioner and her
husband agree that, if necessary, they shall meet all expenses of
the marriage of the alleged detenue. They also agree that they
shall complete construction of a house for the alleged detenue,
her mother and siblings, if they are permitted, at their own
costs.
9. We have considered all the relevant inputs. We
specifically queried when we interacted with the mother of the
alleged detenue and the 4th respondent whether the petitioner
and her husband has any improper/illegal/immoral purposes in
their offer to take the alleged detenue with them. We are
informed that there is no such dimension to the problem at all.
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10. In a petition for issue of a writ of habeas corpus, we
need only consider whether the alleged detenue is under any
illegal confinement or detention. More particularly, we have to
ascertain whether the free will of the alleged detenue is being
impeded.
11. We are convinced that the alleged detenue wants to go
with the petitioner. No objection is taken by the mother of the
alleged detenue or the 4th respondent as to why the alleged
detenue should not be permitted to go with the petitioner with
whom her father had entrusted her prior to his death. We are
satisfied that the alleged detenue, (we repeat, an adult major
woman,aged about 21 years) wants to go along with the
petitioner.
12. In the result,
a) this writ petition is allowed.
b)We have informed the alleged detenue Monisha
that she is free to go wherever she wants.
c)We respect the wishes of the alleged detenue
Monisha that she wants to go along with the
petitioner and her husband and accordingly she
leaves the court along with them.
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13. We record the submission of the petitioner and her
husband that the mother or the siblings of the alleged detenue as
also the 4th respondent can, at any time they want, go and meet
the alleged detenue at the shop or the house of the petitioner.
Similarly, we are assured that the alleged detenue shall be at
liberty to visit her mother, the 4th respondent and other relatives
at the house of the 4th respondent at any time that she wants.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.