IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 379 of 2010(S)
1. O.NARAYANAN,AGED 53 YEARS,
... Petitioner
Vs
1. THE SUPERINTENDENT OF POLICE,KOZHIKODE
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. C.K.FAISAL,AGED 24 YEARS,
5. HAMSA,
6. SAKKEENA,W/O.HAMSA,
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/10/2010
O R D E R
R.BASANT & M.L.JOSEPH FRANCIS, JJ.
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WP(CRL.) No.379 of 2010
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Dated this the 11th day of October , 2010
JUDGMENT
BASANT, J.
This judgment must be read in continuation of our earlier orders
dated 4.10.2010 and 6.10.2010. Today when the case is called the
petitioner is not present. He is represented by his counsel. His wife
and his son have come before this Court representing him. We are
informed that the petitioner is facing great mental strains and that is
why he has not appeared before this Court today.
2. The alleged detenue, Nyji has been brought from the Santhi
Nikethan hostel. The fourth respondent is present. Respondents 5 and
6, the parents of the fourth respondent are also present. A counsel
appears for the alleged detenue, fourth respondent, fifth respondent and
the sixth respondent.
3. We had interacted with the alleged detenue alone initially and
later in the presence of her mother and brother. Subsequently, we
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interacted with the alleged detenue in the presence of the fourth
respondent and later in the presence of respondents 4 to 6. The
learned counsel for the alleged detenue and respondents 4 to 6, as also
the counsel for the petitioner were also present.
4. The alleged detenue states before us that she had interacted
with her parents after last date of posting. She is firm in her decision
that she does not want to return with the petitioner. She asserts that she
wants to get married to the fourth respondent. If the marriage recorded
before the Mishra Vivaha Samithy is not legally valid and sufficient,
she is willing to get her marriage solemnised and registered under the
provisions of the Special Marriage Act. She may be given time to get
such marriage, under the Special Marriage Act solemnised and
registered. Till such marriage is solemnised and registered, she shall
not cohabit with the fourth respondent as his wife. But she prays that
she may not be compelled to remain in the hostel at Kochi and she has
to appear for her M.Phil entrance examination on 14.10.2010. If the
Court has to insist that she must reside in the hostel till her marriage is
solemnised, that will cause very difficulties to her, submits the alleged
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detenue. She undertakes that she shall not cohabit with the fourth
respondent as his wife till the marriage is solemnised and registered.
5. The fourth respondent supports the alleged detenue in all
what she has stated and recorded above. He also undertakes that the
marriage between him and the alleged detenue will get solemnised and
registered under the provisions of the Special Marriage Act. Till such
solemnisation takes place, they shall not cohabit has husband and wife,
he asserts.
6. Respondents 5 and 6 submit that they would be happier if the
fourth respondent, their son had contracted a conventional marriage
with a girl from same community. But they are willing to accept the
marriage between the alleged detenue and the fourth respondent. They
shall not insist on conversion. The fifth respondent states that he has
apprehended to consider willing to accept the decision of the alleged
detenue and the fourth respondent, who are educated young persons.
The fifth respondent is not an educated person, he has not studied even
up to the 5th standard. The 6th respondent had studied up to the 7th
standard, it is submitted. Respondents 5 an 6 appear to be un-educated
W.P.(Crl) No.379 of 2010 4
persons. They are willing to accept the decision their son, fourth
respondent, an educated young man, who has already passed M.A.
(Philosophy) course.
7. 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. We are satisfied in this
case, that the alleged detenue, Nyji is not under any illegal detention or
confinement. She and the fourth respondent are pos-graduate, they are
aged about 24 years. They are M.A.(Philosphy) degree holders. They
are conscious of the importance of decision that they belong to
different communities are planning to get married. Both of them do not
want to insist on conversion of the other to their religion, but are
willing to accept the partner as one belonging to different community.
Both of them had not secured any employment now, but they are
hopeful of securing some employment. Till then they shall earn their
livelihood by working in parallel college or conducting tuition, submit
the fourth respondent and the alleged detenue.
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8. We respect the decisional autonomy of the alleged detenue.
She has passed 23 = years and she wants to get married to the fourth
respondent. We accept the submission of the alleged detenue and the
fourth respondent that they shall get their marriage solemnised and
registered in accordance with the provisions of the Special Marriage
Act. Till then they shall not cohabit as husband and wife. We expect
their undertaking that the certificate under the Special Marriage Act
shall be produced before this Court, if sufficient time were granted to
them. The alleged detenue states that she shall to day return from the
Court along with the fourth respondent and that she shall return to the
hostel in the Calicut University campus, where she was residing earlier
to appear for her examination on 14.10.2010. Thereafter she shall find
accommodation herself independently and shall take steps to get her
marriage solemnised and registered under the provisions of the Special
Marriage Act.
9. We are satisfied in these circumstances, that no further
directions are necessary in this Writ Petition. We are satisfied that this
Writ Petition can be dismissed giving the alleged detenue and the
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fourth respondent time to produce their marriage certificate under the
provisions of the Special Marriage Act.
10. In the result:
(a) This Writ petition is dismissed.
(b) The alleged detenue, Nyji is informed that she is at liberty to
choose what ever course she thinks is best for her.
(c) We record the statement of the alleged detenue that she wants
to return along with the fourth respondent from the Court. We permit
her to do so.
(d) We record the submission of the alleged detenue and the
fourth respondent that they shall get their marriage solemnised and
registered in accordance with the Special Marriage Act and shall
produce the marriage certificate before this Court on the next date of
posting.
(e) We further record the submission of the alleged detenue and
the fourth respondent that they shall not cohabit as husband and wife
till their marriage is solemnised and registered under the provision of
the Special Marriage Act.
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11. Call this petition again on 30.11.2010 for appearance of the
alleged detenue and the fourth respondent along with their marriage
certificate.
12. Hand over a copy of this order to the learned counsel for the
petitioner and learned counsel for the alleged detenue and the fourth
respondent.
(R.BASANT, JUDGE)
(M.L.JOSEPH FRANCIS , JUDGE)
dl/
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R. BASANT & M.L.JOSEPH FRANCIS JJ.,
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W.P.(Crl) No.379 of 2010
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Dated this the 4th day of October, 2010.
ORDER
Basant J.,
The petitioner has come to this Court with this application for
issue of a writ of habeas corpus to search for, trace and produce his
23 year old daughter, a post graduate in Philosophy. According to
him, his daughter Ms.Nyji, an adult major woman, is being illegally
detained or confined by fourth respondent, a young man aged 25
years, in active collusion with respondents 5 and 6. The police
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have registered a crime, as Crime No. 567 of 2010 of Balussery
Police Station. The girl is missing from 17.9.2010. As the police
have not been successful in tracing the alleged detenue, the
petitioner came to this Court with this petition on 27.9.2010.
2. The petition was admitted on 28.9.2010. Notice was
ordered to respondents.
3. Today when the case is called, the petitioner is present.
He is represented by his counsel. Respondents 5 and 6 have
appeared in Court. They are represented by their counsel also.
Counsel for respondents 5 and 6 submits that the respondents 5 and
6 are also aggrieved by the missing/ dis appearance of their son, the
fourth respondent. They also want him to be traced. They are in no
way responsible for the dis – appearance of the alleged detenue.
4. The learned Government pleader submits that the police
have not been able to trace the alleged detenue and the fourth
respondent, so far. Both of them were students together in the
University and the police are making attempts to trace the alleged
detenue and the fourth respondent. The learned Government
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pleader prays that time may be granted to the police to trace the
alleged detenue and the fourth respondent.
5. We are satisfied that the request of the learned
Government Pleader, on behalf of the police deserves to be
accepted. We accordingly post this case to 18.10.10, with specific
direction to the police to make every endeavour to trace the alleged
detenue and fourth respondent by that date. If the alleged detenue is
traced by that date, needless to say, she shall be dealt with in
accordance with law and produced before the learned Magistrate,
who shall make necessary arrangements to ensure that the alleged
detenue appears/ is produced before this Court on 18.10.2010.
6. Call on 18.10.2010.
R. BASANT, JUDGE
M. L. JOSEPH FRANCIS, JUDGE.
dl/
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