IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 309 of 2010(S)
1. SREEKUMAR, AGED 55 YEARS,
... Petitioner
2. BINU,S/O.SADASIVAN,KOVILAVILA VEEDU,
Vs
1. THE SUPERINTENDENT OF POLICE (RURAL)
... Respondent
2. CIRCLE INSPECTOR OF POLICE,
3. SUB INSEPCTOR OF POLICE,
4. SAHADEVAN,AGED 37 YEARS,
For Petitioner :SRI.R.GOPAN
For Respondent :SRI.M.SREEKUMAR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :11/08/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(Crl.) No.309 of 2010
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Dated this the 11th day of August, 2010
JUDGMENT
BASANT, J.
Petitioners – father in law and son in law, have come to this
Court with this petition for issue of a writ of habeas corpus to
search for, trace and produce Smt.Asha, a married woman and
daughter of the 1st petitioner and wife of the 2nd petitioner, aged
26 years (date of birth – 03.08.1984). According to the
petitioners, Smt.Asha (hereinafter referred to as `the alleged
detenue), was legally married to the 2nd petitioner and they were
allegedly leading a happy and contended married life. A male
child, Adithyan, was born on 14.06.2007 in that matrimony. The
2nd petitioner/husband was employed abroad. According to the
petitioners, the alleged detenue Asha developed an illicit
intimacy with the 4th respondent and she along with her minor
son Adithyan, aged 3 years, was found missing from the
matrimonial home from 27.06.2010. A crime was registered
later. The alleged detenue was produced before the learned
Magistrate. In her sworn statement dated 06.07.2010 she stated
W.P(Crl.) No.309 of 2010 2
that she is not under any illegal detention or confinement.
Accordingly she was permitted by the learned Magistrate to
freely go from Court along with her son. Thereafter nothing was
heard of the alleged detenue. According to the petitioners, they
had no opportunity to meet and interact with the alleged detenue
and the child when she was produced before the learned
Magistrate. The petitioners entertained an apprehension that
she is under the illegal detention and custody of the 4th
respondent. It is, in these circumstances, that the petitioners
came to this Court on 27.07.2010.
2. When the matter came up on 29.07.2010, the Bench
which dealt with the matter ordered notice to the respondents.
The matter has come up for hearing today.
3. Today when the case came up for hearing, both the
petitioners are present. They are represented by their counsel.
The alleged detenue has also come to Court along with her child.
She is represented by a counsel. The 4th respondent has
appeared before Court. He is also represented by a counsel.
4. We interacted with the alleged detenue and the
petitioners in the Chamber after lunch recess. The learned
counsel for the petitioners, the learned counsel for the 4th
W.P(Crl.) No.309 of 2010 3
respondent, the learned counsel for the alleged detenue and the
learned Government Pleader were all present.
5. The alleged detenue stated before us unambiguously
and categorically that she is not under any illegal detention or
confinement. It is her case that she was subjected to
matrimonial cruelty at the matrimonial home and she was
obliged to leave the matrimonial home under tragic
circumstances. She was compelled by the 2nd petitioner to leave
the matrimonial home and in sheer helplessness she had left the
matrimonial home along with the child. She has now taken
shelter in the house of a friend of hers by name Selin Sheela,
W/o.T.Mohan Raj, Moontam Pilavilai, Viricode (P.O), K.K.District.
She is now residing along with the said Selin Sheela. According
to her, she has no illicit or improper relationship with the 4th
respondent. The 4th respondent is only a neighbour. He had
given some help on an earlier occasion when the alleged detenue
suffered physical cruelty at the hands of the 2nd petitioner.
There is no other relationship. The 4th respondent is not
detaining or confining her, asserts the alleged detenue.
6. The learned counsel for the 4th respondent submits
that the 4th respondent is not interested in the dispute between
W.P(Crl.) No.309 of 2010 4
the 2nd petitioner and his wife, the alleged detenue. It is
admitted at all hands that the 4th respondent is an unmarried
neighbour residing near the matrimonial home of the alleged
detenue.
7. We attempted in the presence of the counsel to
explore the possibilities of a harmonious settlement. The
learned counsel for the petitioners and the alleged detenue were
requested during the pre-lunch session to attempt a settlement
of the disputes between the spouses. We must record that such
efforts have not borne fruit and the alleged detenue is not willing
to go with the 2nd petitioner and/or the 1st petitioner. She asserts
that she is residing with her friend S.Selin Sheela, W/o.T.Mohan
Raj, Moontam Pilavilai, Viricode (P.O), K.K.District. She will
continue to reside there. She wants to seek divorce from the 2nd
petitioner and, in these circumstances, she prays that she may
be permitted to leave the Court and continue residence at the
house of her friend, the above said S.Selin Sheela.
8. The learned counsel for the petitioners submits that
according to the petitioners, there is no friend by name S.Selin
Sheela and the alleged detenue is not residing with the said
W.P(Crl.) No.309 of 2010 5
S.Selin Sheela. According to them, it is the 4th respondent, who
is keeping the alleged detenue in his custody and confinement.
9. We have considered all the relevant inputs. We are
satisfied that the alleged detenue, an adult major woman, with a
minor child, aged 3 years, is not under any illegal confinement or
detention. 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 confinement or detention. We are
satisfied that she and her child are not under any illegal
confinement or detention. We are satisfied, in these
circumstances, that no further directions are necessary.
10. We make it clear that we have not chosen to express
any opinion on the acceptability of the versions advanced by the
petitioners, the alleged detenue or the 4th respondent. We need
only mention that we are satisfied that the alleged detenue and
her minor child are not under any illegal detention or
confinement. Needless to say, the option of the spouses to move
the courts for divorce, restitution of conjugal rights or custody of
the child shall remain unfettered by the disposal of this Writ
Petition.
W.P(Crl.) No.309 of 2010 6
11. In the result:
a) This Writ Petition is dismissed;
b) The alleged detenue Smt.Asha, an adult major woman,
aged above 26 years, is permitted to leave the Court along with
her child as desired by her. She will be at liberty to pursue
whatever course she thinks is best in her interest.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/