High Court Kerala High Court

Dharmaputran vs Circle Inspector Of Police on 12 November, 2010

Kerala High Court
Dharmaputran vs Circle Inspector Of Police on 12 November, 2010
       

  

  

 
 
  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/