JUDGMENT
Krishnamoorthy, J.
1. In both these Original Petitions a common
question arises and accordingly they are disposed of by a common judgment.
The question involved in O.P. No. 3771 of 1992 is as to whether the
petitioner is entitled to maintain a petition for the issuance of a writ of habeas
corpus for the production of a girl, Deepa Ravindran, who is the daughter of
the 1st respondent. The further question to be decided is as to whether the
custody of a parent in the circumstances can be said to be unlawful, warranting
interference by this Court.
2. Petitioner alleges in his petition that himself and Deepa Ravindran
were neighbours and that they have been in love for long eversince their childhood.
The parents and other relatives were not agreeable to their relationship
and on 11-3-1992, petitioner and Deepa eloped from their respective houses and
were staying with the petitioner’s mother’s sister’s daughter at a place called
Narakathodu. It is further alleged in the petition that they entered into a registered marriage agreement (No. 42/82) dated 12-3-1992 before the
Sub- Registrar’s Office, Thengana; a copy of the above agreement is produced as Ext. PI.
According to the petitioner, they became husband and wife by execution of
that registered document and they were residing as such in his sister’s house at
Narakathodu. While so, on 16-3-1992, father of Deepa and two other persons
represented to them that they will conduct a formal marriage between the petitioner and Deepa and on that pretext took Deepa also along with them, who is
now residing with her parents. According to the petitioner, the representation
made by the 1st respondent was only a ruse to take Deepa Ravindran out of
the custody of the petitioner and she is kept in illegal custody against her wish
by the respondents. The 1st respondent is the father of Deepa and the 2nd respondent is his sister’s son.
3. Petitioner alleges that intention of the respondents was to separate
Deepa from him and she is kept in illegal custody against her wish. It is also
alleged by him that she is a major and is capable of expressing her free will.
According to him, it is against her will and desire that the respondents have
been illegally detaining her. In these circumstances, the petitioner has filed this
petition for the issuance of a writ of habeas corpus directing the respondents to produce the body of Deepa Ravindram, wife of the petitioner, in
Court and order her release.
4. The first question to be decided is as to whether a petition for the
issuance of a writ of habeas corpus is maintainable at the instance of the
Petitioner.
Petitioner throughout in the petition maintains that he is the husband of
the girl Deepa, on the basis of a registered document executed by the petitioner
and Deepa on 12-3-1992 before the Sub Register’s Office, Thengana. Both parties
are Hindus and it is well-settled that in order to claim the status of a husband,
they should have undergone a form of marriage prescribed under law. Executing a registered document and declaring that they are husband and wife will not
confer the status of a husband on the petitioner because it is not one of the
recognised forms of marriage in law. There is no case for the petitioner that
he had married Deepa in the customary form. In these circumstances, we
have to proceed on the basis that the petitioner is not the husband of
Deepa.
5. The question involved in the case is regarding the custody of a girl,
though, no doubt, according to the petitioner, she is a major. Even assuming
that she is a major, the question is whether in such circumstances, the petitioner
is entitled to maintain an application for the issue of a writ of habeas corpus for
the production of her body and also as to whether the custody of the father in
such circumstances can be said to be unlawful. We do not think that having
control and supervision of an aged girl by the parents will amount to illegal
custody warranting the issue of a writ by this Court. Parents will naturally be
interested in the welfare of their children and unless there are extraordinary
circumstances, normally they will be the proper persons to take decisions concerning the career and future of their children. Parents will be entitled to have
control over the children, especially if they are daughters, to protect them from
the vagaries of adolescence.
6. Petitioner claims to be the husband of only on the basis of the
registered document which will not confer on him the status of a husband. A.
person like the petitioner is not entitled to maintain a petition for the issue of a
writ of habeas corpus for the release of a girl, especially when she is only in the
custody of the father. In Mohd. Ikram Hussainv. State of U.P., (AIR 1964
S.C. 1625), the Supreme Court has laid down the principles applicable in such
circumstances. The Supreme Court observed ;
“A writ of habeas corpus at the instance of a man to obtain
possession of a woman alleged to be his wife does not issue as a
matter of course. Though a writ of right, it is not a writ
of course especially when a man seeks the. assistance of the
Court to regain the custody of a woman. Before a Court accedes
to this request it must satisfy itself at least prima facie that the person claiming the writ is in fact the husband and further whether
valid marriage between him and the woman could at all have taken
place.”
As stated earlier, no valid marriage has taken place between the petitioner and Deepa and following the dictum laid down by the Supreme Court in the
aforementioned case, it has to be held that no petition will lie at the instance
of a person like the petitioner. The same view was taken by a full Bench of
this Court in Sadanandan v. Raghava Kurup, (1974 a KLT 750). That apart,
Deepa is staying with her own parents and except the allegation made in the
petition nothing has been made out to show that she is under any restraint or
is being illegally detained by the parents. In the light of what is stated above,
petitioner is not entitled to any relief in this petition.
7. Counsel for the petitioner placed great reliance on the decision of
of the Supreme Court in Gian Devi v. The Superintendent, Nari Niketan, Delhi
& Others, (1976) 3 SCC 234 and also on the Division Bench decision of this
Court in Krishna Baj v. State of Kerala, ILR 1980 (1) Ker. In Gian Devi’s case
the petition was filed by the woman herself when she was ordered to be detained
in Nari Niketan, Delhi, by the Judicial Magistrate. It was in that context that
the Supreme Court said that no fetters can be placed upon her choice of the
person with whom she is to stay. In the latter decision, the question as to whether such a petition is maintainable by a person other than the husband was not
considered at all, as no such contention was taken in the case, as seen from
para 37 of that judgment to the following effect :
“37. Incidentally, we may record that Counsel for the 4th
respondent did not contend for the position that without a finding
on the alleged marriage between the petitioner and Prabha, no writ
could issue. He fairly conceded that the present case can be treated
as an application by “some other person” within the meaning of the
proviso to Rule 160.”
Thus, these two decisions can have no application to the facts of this
case.
8. In O.P. No. 2745 of 1992, the petitioner is a Hindu belonging to the
Scheduled Caste community and according to him, he fell in love with the 5th
respondent who belonged to the Muslim community. He alleged that she was
21 years old and on 2-2-92, the 5th respondent on her own will left her family
and accompanied him to his house for living as husband and wife. On 3-2-92
the petitioner and the 5th respondent contracted a register marriage at the Sub
Registry, Sreemoolanagaram in Ernakulam District; a copy of the marriage
contract is produced as Ext.Pl. According to the petitioner, on
8-8-1992, a police jeep came to his house and three police men of the Chengamanadu
Police Station arrested the petitioner, his wife and his mother and took them
to the said Police Station. Though the petitioner stated that the petitioner and
the 5th respondent are married, they took away the 5th respondent from his
custody and her whereabouts are not known to him. Petitioner alleges that he
has not seen her. thereafter. According to him, the 5th respondent is detained
against her wish and will by the 6th respondent, her father, and she is not able
to communicate with the outside world. In these circumstances, he prays for a
writ of habeas corpus commanding respondents 2, 3 and 4 to produce the 5th
respondent before Court and to release her from the illegal confinement made
by the father, the 6th respondent.
9. The 6th respondent, father of the 5th respondent, has filed a counter-affidavit in which he has alleged that she is his youngest daughter and that
she is a minor. In support of the fact that she is a minor, he has
produced as Ext. R6(B) the relevant pages of the ration card issued
during 1985-86 which shows her age. So also, the new ration card for
the year 1991 (the relevant pages produced as Ext. R6(C)) also shows her
age as 12. He denied the fact that the 5th respondent is a major. According to
him, the 5th respondent was found missing and a complaint was launched by
his son before the Vellamunda Police Station. On the basis of the investigation,
they traced the 5th respondent from the house of the petitioner. Later, the 5th
respondent was produced before the Magistrate, Mananthavady and she expressed her desire to go with her parents and the Court permitted her to do so.
According to him, she is living with them on her own free will and she is not
in illegal confinement.
10. We got down the records of the police case initiated on the basis
of the complaint made by the 6th respondent.
11. In this case also it can be seen that the petitioner is claiming to
be the husband of the 5th respondent (Nabeesa) only on the basis of a registered document dated 3-2-92 produced as Ext. PI. There cannot be any doubt
that the petitioner cannot become the husband of the 5th respondent by this
registered document alone. Petitioner has not alleged that he has married the
5th respondent in any legal manner. In that view of the matter, for the reasons
we have already stated, the petitioner is not entitled to any relief.
12. There are other reasons also for refusing the relief claimed by the
petitioner. First of all, the 6th respondent has clearly alleged in the counter
affidavit that the 5th respondent is a minor, prima facie, the ration card for
1985-86 shows that she was only 7 years old at that time. Ext. R6(C) the ration
card for the year 1991 shows her age as 12. Petitioner contended that in the
registered document Ext. PI her age is shown as 21.The age in the ration card
would have been supplied by the parents who are competent to mention the
age of the 5th respondent and it has to be remembered that it was at a time
when there was no dispute regarding her age. There is no reason why the 6th
respondent should give a false age of Nabeesa for obtaining a ration card so
that prima facie the age given in the ration card has to be accepted for the
purpose of this case at least, Petitioner has not satisfactorily proved that the
5th respondent is a major. In that view of the matter also the petitioner is not
entitled to any relief.
13. Moreover, on the basis of the cumplaint made by the 6th respondent, the police took custody of the 5th respondent and produced her before
the Magistrate, Mananthavady. The Magistrate questioned her and she had
clearly stated before him that she wants go along with her parents who were
waiting outside in the verandah. She clearly expressed her desire to go wtih
the parents and accordingly the Magistrate ordered that she is given liberty to
go with her parents. Accordingly she joined her parents and is now staying with
them. It can thus be seen that when she was questioned by the Magistrate, she
had categorically stated that she desired to go with her parents which clearly
shows that there is nothing to show any sort of illegal confinement by the
parents or that she is being kept against her wishes. We are satisfied from the
statement recorded by the Magistrate that she is staying with her parents on
her own will and there is no illegal confinement is alleged by the petitioner.
14. In the light of what is stated above,there is no merit in these two
Original Petitions and they are accordingly dismissed.