IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 427 of 2010(S)
1. DHARMAPUTRAN,
... Petitioner
Vs
1. CIRCLE INSPECTOR OF POLICE,
... Respondent
2. SUB INSPECTOR OF POLICE,
3. GOPIKRISHNAN,
4. BINDU GOPIKRISHNAN,
5. BIJI DHARMAPUTHRAN (DETENUE),
For Petitioner :SRI.G.HARIHARAN
For Respondent :SRI.RASHEED C.NOORANAD
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :12/11/2010
O R D E R
R.BASANT & K.SURENDRA MOHAN, JJ.
***********************
W.P(Crl) No.427 of 2010
*****************************
Dated this the 12th day of November, 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
his wife Biji, a young woman, aged about 33 years (date of birth –
6.12.1977). Biji, the alleged deenue, is a graduate – B.Com. (Co-
operation). She is not employed. Her marriage with the
petitioner took place on 29.04.2003. They have no issues in the
wedlock. The spouses were getting treated for infertility. At
long last, the alleged detenue became pregnant. According to
the petitioner, from 07.10.2010, the alleged detenue Biji is being
illegally detained by respondents 3 and 4. Respondent No.4 is
the sister of Biji and respondent No.3 is the husband of
respondent No.4. Quite surprisingly, the alleged detenue Biji is
also seen arrayed as the 5th respondent in the Writ Petition.
2. It is, in these circumstances, that the petitioner came
to this Court with this petition on 02.11.2010.
3. The matter came up for admission hearing on
03.11.2010. The Court was not satisfied after hearing the
W.P(Crl) No.427 of 2010 2
learned counsel for the petitioner and perusing the petition that
prima facie there are any elements of illegal detention or
confinement. We posted the case to 10.11.2010 with direction to
the learned Government Pleader to take instructions. The
petitioner was also permitted to produce further materials, if
any.
4. On 10.11.2010 when the matter came up for hearing,
the learned Government Pleader prayed for time. It was
submitted by the Government Pleader that the presence of the
alleged detenue herself can be ensured on this day and it is
accordingly that the case was posted to this date.
5. Today when the case is called, the petitioner is
present. His brother Udayabhanu has also come to Court along
with him. The petitioner is represented by his counsel.
6. Respondents 3 and 4 have come to Court. Along with
them, the 5th respondent, the alleged detenue, has also come to
Court. A counsel appears for respondents 3 to 5.
7. The alleged detenue, the 5th respondent-Biji, stated
before us in Court that she does not want to return to
the petitioner and she is not interested in speaking to him.
W.P(Crl) No.427 of 2010 3
However, taking note of the totality of circumstances, we
requested the counsel to play a constructive role and to ascertain
whether parties can be persuaded to come to a harmonious
settlement.
8. After the lunch recess, we interacted with the alleged
detenue alone initially. Later we interacted with her in the
presence of the petitioner, her husband. Subsequently we
interacted with the alleged detenue and the petitioner in the
presence of the brother of the petitioner and the sister of the
alleged detenue. The learned counsel for the petitioner, the
learned counsel for respondents 3 to 5 and the learned
Government Pleader were also present.
9. The alleged detenue states before us that she is not
under any illegal detention or confinement. According to her,
she used to be physically and mentally harassed and tortured by
the petitioner. After a long period of treatment, she had become
pregnant. But no kindness or consideration was shown by the
petitioner towards her. She was assaulted and there was
bleeding. It was, in these circumstances, that she was
constrained to go to her sister and brother in law on 07.10.2010.
The bleeding continued, but did not respond to treatment. The
W.P(Crl) No.427 of 2010 4
pregnancy has got aborted now. She does not want to return
along with the petitioner. She wants to go back along with
respondents 3 and 4.
10. The sister of the alleged detenue, the 4th respondent,
also made submissions in tune with the submissions of the
alleged detenue.
11. The petitioner and his brother have a different version
to advance. According to them, there was no assault or physical
or mental harassment against the alleged detenue. When the
alleged detenue became pregnant, it is their case that
respondents 3 and 4 did not want the pregnancy to advance. It
is the case of the petitioner that respondents 3 and 4 are not
interested in the alleged detenue begetting a child. According to
the petitioner, after the alleged detenue returned to respondents
3 and 4, the pregnancy has been deliberately aborted. The
petitioner points out that the abortion took place not in the
hospital where the alleged detenue was getting treated for
infertility and where success was achieved ultimately, but at
some other hospital. According to the petitioner, this indicates
that respondents 3 and 4 were not actually interested in
saving the pregnancy. They were more interested in getting the
W.P(Crl) No.427 of 2010 5
pregnancy aborted. Respondents 4 and 5 deny these allegations.
According to them, it was a precious pregnancy and there was no
reason whatsoever why they should have attempted to abort the
pregnancy.
12. In a petition for issue of a writ of habeas corpus, we
are primarily concerned with the question whether the alleged
detenue is under any illegal detention or confinement. Here the
alleged detenue is an adult major woman, aged about 33 years.
She is an educated woman. We reckon her as competent to take
decisions affecting her. She states before us categorically that
she does not want to return with the petitioner and that she will
be moving for divorce shortly. We are satisfied that the
statement of the alleged detenue can be accepted. We respect
her decisional autonomy.
13. In our attempt to explore the possibilities of a
harmonious settlement, we did try to persuade the parties to
resume cohabitation if possible or to decide to separate as
friends. That attempt has not succeeded. We are satisfied that
no directions under Article 226 of the Constitution can, need or
deserve to be issued.
W.P(Crl) No.427 of 2010 6
14. In the result:
a) This petition is dismissed;
b) We record the statement of the alleged detenue that
she wants to return along with her sister and brother in law.
She is permitted to do so.
15. We make it clear that we have not intended to express
any opinion on any other aspects. We have intended only to
ascertain and hold that the alleged detenue is not under illegal
confinement or detention now.
(R.BASANT, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
rtr/
W.P(Crl) No.427 of 2010 7
W.P(Crl) No.427 of 2010 8
R.BASANT & M.L.JOSEPH FRANCIS, JJ.
***********************
W.P(Crl) No.427 of 2010
*****************************
Dated this the 3rd day of November, 2010
ORDER
BASANT, J.
The petitioner has come to this Court for issue of a writ of
habeas corpus to search for, trace and produce his wife, the
alleged detenue, who surprisingly is arrayed as the 5th
respondent. Her arrayal as the 5th respondent knocks the bottom
out of the theory that she is under illegal detention or
confinement. Marriage took place on 29.04.2003. No issues are
born in the wedlock. The alleged detenue is now said to be
pregnant. She has been missing from her house from
07.10.2010. The petitioner assumes that respondents 3 and 4,
the sister and brother in law of the alleged detenue, are
allegedly detaining her. We have heard the learned counsel for
the petitioner.
2. We have perused the records. We are unable to
perceive any elements of illegal detention or confinement in the
alleged disappearance/residence of the alleged detenue along
W.P(Crl) No.427 of 2010 9
with respondents 3 and 4. The learned counsel for the petitioner
is granted time to produce further material, if any, to induce the
requisite satisfaction in us. In the meantime, we direct the
learned Government Pleader to secure instructions and make
submissions to enable us to authentically decide on the question
of admission on the next date of posting.
2. Call on 10.11.2010.
(R.BASANT, JUDGE)
(M.L.JOSEPH FRANCIS, JUDGE)
rtr/