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2009 DIGILAW 980 (KER)

Rajmohan M. S. v. State of Kerala

2009-10-15

M.C.HARI RANI, R.BASANT

body2009
Judgment :- Basant, J. What are the limits of the decisional autonomy of an adult daughter who has attained majority? Is she obliged to be in the “custody” of her parents until marriage? Can she be kept in such “custody” against her will and wishes? Cannot jurisdiction under Article 226 of the Constitution of India to issue a writ of habeas corpus be invoked by this Court when a grievances is made before it that the parent is detaining his adult daughter against her will and desire? Is the law to close its eyes assuming that the parent can and does no wrong in dealing with his adult daughter in the way he thinks best? These questions arise for consideration in this Writ petition, where the learned counsel for the 6th respondent, Advocate P.C. Sasidharan, questions the jurisdiction of this Court to proceed any further with this petition on the ground that the petition is not maintainable. 2. It will be apposite at the outset to refer to the basic facts in the light of which these questions arises for consideration. We have ascertained the relevant facts from the pleadings of the parties and the documents made available for perusal of the Court. Ms. Shamnamol, daughter of the 6th respondent, is an adult major woman, she having attained the age of majority, i.e. 18 years. She was born on 20.12.1989. The petitioner herein is a young man, aged above 21 years, he having been born on 18.06.1988. The petitioner and the said Shamnamol (hereinafter referred to as the ‘alleged detenue’) were friendly from very early days. The petitioner is a Hindu by religion whereas the alleged detenue is a Muslim. While she was a plus one student, she allegedly had fallen in love with the petitioner and her parents, on coming to know of that relationship, had taken her away to Sharjah, where the 6th respondent is employed. After completing her plus two course there, she came back to India and joined B.Sc (Maths) course at the T.K.M College, Kollam. She was a first year students of B.Sc (Maths) in that College. She was residing in the women’s hostel. The alleged detenue and the petitioner continued their relationship secretly. The parents of the alleged detenue were not aware of such relationship. She was a first year students of B.Sc (Maths) in that College. She was residing in the women’s hostel. The alleged detenue and the petitioner continued their relationship secretly. The parents of the alleged detenue were not aware of such relationship. They happened to come to know of that relationship and thereafter apprehending that the alleged detenue may forcibly be given away in marriage to someone, the alleged detenue eloped from her house with the petitioner on 29.08.09. A compliant was filed and Crime No.511 of 2009 was registered at the Kilimanoor Police Station under the caption “woman missing”. The petitioner and the alleged detenue went away to some place secretly and it is alleged that marriage was performed and solemnized between them on 01.09.09. It is stated that the marriage took place in a temple in Tamil Nadu. Though they allegedly wanted to get their marriage registered, they could not, for various reasons, get their marriage registered. 3. The chase became hot and the petitioner and the alleged detenue realised the need to appear before the police. Accordingly, on 02.09.09, they surrendered before the police. On 03.09.2009, the alleged detenue was produced before the Magistrate. The learned Magistrate evidently, after satisfying himself that there was no element of illegal detention, allowed the alleged detenue to go freely from the Court and she allegedly went along with the petitioner. The petitioner and the alleged detenue started residence together. 4. On 05.09.09, the petitioner and the alleged detenue gave notice before the Marriage Officer, to get their marriage registered/solemnized under the Special Marriage Act. According to the petitioner, the alleged detenue and the petitioner were thus living together at his family house along with his parents till 09.09.09. 5. On 09.09.09, it is alleged that the 6th respondent along with some others under the cover of darkness allegedly took away the alleged detenue by use of force from the house of the petitioner. A complaint was promptly lodged before the Kilimanoor Police Station on 09.09.09 by the father of the petitioner and Crime No.526 of 2009 was registered at the said police station. Investigation into that crime is proceeding. The police have reported to this Court they are satisfied that offences alleged in that crime have been committed and they are taking necessary steps to trace the alleged detenue as also the 6th respondent. Investigation into that crime is proceeding. The police have reported to this Court they are satisfied that offences alleged in that crime have been committed and they are taking necessary steps to trace the alleged detenue as also the 6th respondent. Their attempt has not been successful so far. They have already addressed the Passport Officer and are leaving no stone unturned to ensure that the alleged detenue and the 6th respondent are traced and brought before Court, submits the learned Government Pleader. 6. As the said efforts did not fructify, the petitioner on 14.09.09 filed this petition for issue of a writ of habeas corpus to search for, trace and produce the alleged detenue. Thus petition was admitted on 15.09.09 and the case was posted to 22.09.09. 7. At this juncture, as per the report of the police, the alleged detenue was taken away by the 6th respondent to his place of employment at Sharjah. The report of the police shows that the alleged detenue was taken away on 17.9.2009 by flight by the 6th respondent from the Calicut Air Port. 8. When the case came up for hearing on 22.9.2009, the 6th respondent entered appearance though a counsel and prayed for time to file counter statement. The Division Bench which dealt with the matter on that day granted time for filing counter; but posted the case to 5.10.2009 with directions to the 6th respondent to produce the alleged detenue on 5.10.2009. 9. On 5.10.2009, when the case came up for hearing, the alleged detenue was not produced. The learned counsel for the 6th respondent prayed for 10 days ‘time to produce the child. We took note of the sequence of events and we were not satisfied about the bonafides of the request of the 6th respondent. We directed the police to take all necessary steps to ensure that the alleged detenue is produced before this Court on the next date of posting – i.e., on 12.10.2009. At the same time, we granted time to the 6th respondent to produce the alleged detenue by then, i.e., on 12.10.2009. 10. On 12.10.2009, when the matter came up for hearing, police filed a detailed statement about the stage of investigation. They expressed before Court their inability to immediately produce the alleged detenue and their inability to reach the 6th respondent. 10. On 12.10.2009, when the matter came up for hearing, police filed a detailed statement about the stage of investigation. They expressed before Court their inability to immediately produce the alleged detenue and their inability to reach the 6th respondent. The 6th respondent at that stage through his counsel raised a contention that this petition under Article 226 of the Constitution of India for issue of a writ of habeas corpus is not maintainable. Various contentions were raised, to which we shall presently refer to. A counter affidavit of the 6th respondent was also filed. The case was posted to 14.10.2009 and on the submission of the petitioner that certain applications have been filed, after hearing the counsel on the question of maintainability, the case was posted to this day. 11. Today, when the case came up for hearing, the learned counsel for the 6th respondent has filed I.A.No.12724/09 seeking leave of the Court to produce an affidavit allegedly sworn to by the alleged detenue before the Assistant Consular, Consulate General of India, Dubai (UAE). 12. We have heard the counsel. We have considered all the materials that have been placed before Court. 13. The learned counsel for the 6th respondent submits that this petition is not maintainable and proceedings are liable to be discontinued forthwith. What are the reasons? The learned counsel for the 6th respondent first of all contends that the petitioner cannot be said to be the husband of the alleged detenue. The alleged marriage which allegedly took lace in a temple cannot constitute a valid marriage between the alleged detenue and the petitioner, who belong to different religions, contends the learned counsel for the 6th respondent. We have been taken though the statement of the alleged detenue recorded by the police in the course of investigation of Crime No.511/2009. That shows that both the petitioner and the alleged detenue were under the impression that they have legally become man and wife on the basis of whatever formalities they underwent at the temple. The learned counsel for the 6th respondent is correct in his submission that the same shall not constitute valid marriage. But, the question in this petition in this petition is not about the validity of the marriage. The learned counsel for the 6th respondent is correct in his submission that the same shall not constitute valid marriage. But, the question in this petition in this petition is not about the validity of the marriage. There is an allegation that the alleged detenue has been illegally and forcibly taken away from the company of the petitioner though she was living with whom as per a valid order passed by the learned Magistrate. To maintain an application under Article 226 of the Constitution, when the Court is satisfied that prima facie there is evidence of improper restraint placed of the alleged detenue, the question of locus need not be given undue importance. The interest of the alleged detenue in the petitioner and the interest of the petitioner in the alleged detenue have been show satisfactorily and we are satisfied that even though a valid marriage between them, who belong to different religions, may not have occurred by the performance of ceremonies in the temple, the same is more than sufficient to concede locus of the petitioner to come before this Court under Article 226 of the Constitution. In all cases of improper restraint or illegal detention/confinement, it would be idle to expect the detenue to come before the Court and raise a grievance. It will always have to be done by someone else. The crucial question is whether on the materials available before the Court, the Court is satisfied about the alleged improper r0estraint or detention/confinement. The constitutional commitment of the Court to the cherished values of freedom, liberty and rule of law must certainly prompt the Court to ignore the strict doctrine of locus standi in appropriate cases. Where the conscience of the Court is satisfied that there is negation of the cherished value of freedom and liberty and blatant violation of rule of law, the jurisdiction under Article 226 of the Constitution shall be invoked without hesitation to liberate a citizen illegally detained. The petitioner, with whom the alleged detenue was residing as man and wife, who had solemnized some form of marriage with the alleged detenue and who along with the alleged detenue had given notice for soemnisation/registration of marriage under the Special Marriage Act, has sufficient locus to maintain this Writ Petition and cannot be turned away from Court on the ground that his marriage with her may not be strictly legal. In these circumstances, the first ground of challenge against maintainability is rejected. 14. It is next contended that the 6th respondent being the father of the alleged detenue, has an unbridled right to keep her “in custody”. The keeping of an adult major woman in the custody”. The keeping of an adult major woman in the custody of her parent even against her will and desire will not amount to improper restraint or detention/confinement as to justify invocation of the jurisdiction under Article 226 of the Constitution, contends the learned counsel for the 6th respondent strenuously. The contention of the learned counsel for the 6th respondent virtually is that parental authority is sufficient to justify such “custody” even against the will and wishes of the detenue. 15. We are afraid that such a general principle of law cannot be accepted. A person who has attained majority, is in the eye of law, a person and a citizen entitled to all rights and privileges under the Constitution. There can be no question of an adult major woman being kept in the “custody” of anyone else against her wishes, desires and volition. Even if it be the parents, such custody cannot in the absence of better reasons be justified. There is no contention that she suffers from any debility which obliges her to be in the “custody” of any others. An adult major woman residing with her parents or husband cannot be held to be in the “custody” of such parent or husband as to deny to her rights to decisional autonomy and to decide what is best for her. Parental authority would certainly extend until a child attains majority. But, thereafter, though the parent and the child may be residing together, it can never be held that such child is in the “custody” of the parent. An adult major woman is not a chattel. The theory that until marriage a woman must be under the custody and confinement of her father and thereafter in the custody and confinement of her husband cannot possibly be accepted in this era. Such an adult person is certainly entitled to take decisions which affect her. Parental authority or matrimonial authority will not any rate give right to such parent or husband to keep such woman under restraint, confinement or detention against her will. Such an adult person is certainly entitled to take decisions which affect her. Parental authority or matrimonial authority will not any rate give right to such parent or husband to keep such woman under restraint, confinement or detention against her will. The parent may feel that he has the monopoly for taking correct decisions which concern his daughter, but that impression of a doting patriarchal parent cannot blindly be accepted and swallowed by a Court. The parental authority may extend to advice, counsel and guidance. But certainly, it cannot extend to confinement, detention or improper restraint against the wishes and volition of the adult major daughter. Right to take decisions affecting her will certainly have to be conceded to her even assuming that, decisions taken at times or in the long run prove to be not wise or prudent. 16. In this context, the learned counsel for the 6th respondent places reliance on two decisions of the earlier Division Benches of this Court in Prasadhkumar v. Ravindran (1992 (1) KLT 729) and Sreekesh v. Mohammed Asharaf (2003 (1) KLT 397). 17. We have been taken though the decisions in detail. We are unable to agree that they lay down a proposition that under no circumstances, when there is an allegation that parental authority is invoked to justify improper restraint or confinement/detention powers under Article 226 cannot be invoked. It depends on the facts of each case. Merely because beneficent parental authority is exercised over an adult child, this Court will not invoke its jurisdiction under Article 226 of the Constitution. Sagacity any judicial wisdom are required to identify the fit cases in which such jurisdiction can, need or need not be invoked. The observations in those decisions will have to understood carefully and cautiously. It would be myopic and obscurantist to understood those observations as sufficient to concede to the parent a right to deny liberty and freedom to this adult daughter and to move her out of the country against her will to keep her away form the Court before which proceedings are initiated. We are unable to so understand those observations. It would be myopic and obscurantist to understood those observations as sufficient to concede to the parent a right to deny liberty and freedom to this adult daughter and to move her out of the country against her will to keep her away form the Court before which proceedings are initiated. We are unable to so understand those observations. Home and parental authority are not out of bounds for a constitutional court while performing its duty to translate the constitutional promise of freedom and liberty and while responding to the prayer of a citizen who has came to court complaining about negation of such rights, in exercise of his fundamental constitutional rights to move the court for enforcement of such right. 18. This Court comes across many such cases of alleged detentions/confinement/compulsive restraint placed on adult daughters by parents. We have taken a consistent stand that the decisional autonomy of such an adult daughter will have to be respected. An adult woman cannot be treated as chattel by this Court. Her rights as an equal citizen will have to be respected and cannot be denied. In cases where we feel that the decision of such alleged detenue does not appear to be voluntary and genuine, we resort to the course of granting them time to reflect, contemplate and ponder. We give them opportunity to be accommodated in neutral venues for some period to facilitate rational and dispassionate evaluation-sometimes for long periods. We give parents opportunity to counsel their children during such period. But ultimately, we do respect the decisional autonomy of such adult children. We are convinced that, that is the proper course to be followed in all cases. To do otherwise would simply be denial of human rights of an adult woman to take decisions affecting her future. That would certainly be denial of the right to life guaranteed under Article 21 of the Constitution of India. The mere fact that the decision may turn out to be incorrect or bad does not justify the denial of the right to take a decision. We do not permit our concept of what is right and good for them to override their own assessment of what is right and good for them. We do not permit the concept of others (including parents) of what is right and good for them to override their own concepts. We do not permit our concept of what is right and good for them to override their own assessment of what is right and good for them. We do not permit the concept of others (including parents) of what is right and good for them to override their own concepts. Concept of tight and good may vary with the times. This generation’s concept of right and wrong may not find acceptance with the next. No generation or parent can claim infallibility and enforce its/his concept of right and wrong on the succeeding. Suffice it to say that we do not agree with the learned counsel that Prasadhkumar and Sreekesh (supra) concede to the parents any unbridled rights to usurp the decisional autonomy of their adult daughter and keep them in “custody” against their desire in exercise of their parental authority or duty. We do not agree that the said decisions lay down that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India in such a situation. We do not agree that the mere fact that the petitioner’s marriage with the alleged detenue may not be strictly legal is sufficient to deny relief. At least it can be said that in the present era of social and societal development in this State such understanding of the dictum is impermissible. In the peculiar facts of those cases and to cater to the interests of justice in such situations, the Courts had followed such courses while considering invocation of the jurisdiction under Article 226. 19. Coming back to the facts of the case, we have no hesitation to agree that it is necessary that the alleged detenue must be brought before court so that this Court can satisfy itself that the alleged detenue is not under improper restraint, confinement or detention. The sequence of events is really shocking. After the alleged detenue was produced before the learned Magistrate and the learned Magistrate allegedly permitted her to go along with the petitioner and the petitioner and the alleged detenue started residence together, in flagrant violation of all refined and civilized norms of justice, force has been employed to take away the alleged detenue. After the alleged detenue was produced before the learned Magistrate and the learned Magistrate allegedly permitted her to go along with the petitioner and the petitioner and the alleged detenue started residence together, in flagrant violation of all refined and civilized norms of justice, force has been employed to take away the alleged detenue. The fact that this alleged act is being done by the father, the 6th respondent will not in any way militate against the gravity of the alleged contumacious conduct, nor shall it justify such improper and culpable conduct. The petitioner and the alleged detenue are adult persons to whom law concedes the right to get married in accordance with law and live together. The option of the 6th respondent to counsel, advice and guide his daughter notwithstanding, he has no business to take law into his own hands to take away the alleged detenue by use of force. The conduct of the 6th respondent, it appears, is an affront to the rule of law. After the filing of this petition and after it was admitted to file the records reveal that the alleged detenue was taken away to keep her beyond the immediate reach of this Court. We are satisfied prima facie that there is improper “custody”, objectionable restraint and negation of rule of law in the conduct of the 6th respondent keeping the alleged detenue. 20. The conduct of the 6th respondent is reprehensible and deserves to be frowned upon. We are satisfied that this is not a case where the extraordinary constitutional jurisdiction under Article 226 of the Constitution can be abdicated on the basis of the alleged theory of parental authority of the 6th respondent who has flouted all norms and notions of refined and civilised justice. Both Prasadhkumar and Sreekesh also recognise and accept the jurisdiction of this Court to act under Article 226 in the peculiar facts like the instant one. 21. We do not, in these circumstances, accept the contention of the learned counsel for the 6th respondent that the petition is not maintainable and proceedings deserves to be discontinued. Proceedings will have to be continue. The presence of the alleged detenue will have to be secured. It will have to be ascertained whether she is in illegal detention, confinement or improper restraint. 22. Proceedings will have to be continue. The presence of the alleged detenue will have to be secured. It will have to be ascertained whether she is in illegal detention, confinement or improper restraint. 22. Arguments are advanced on the basis of the affidavit Exhibit R6(b) of the alleged detenue, which is produced. In the facts and circumstances of the case, we are unable to attach any significance, relevance or value o the said affidavit filed. In the nature of the facts and circumstances, we have reasons to believe that the said affidavit is not sworn to voluntarily by the alleged detenue. We need not distrust the person who has attested the affidavit. But, in the sequence of events that have unfolded before Court, such a conclusion appears to be inescapable. We do not want to depend on the satisfaction of any other. We deem it necessary that we must ourselves be satisfied about the response of the alleged detenue. 23. We are satisfied, in these circumstances, that a writ of habeas corpus must be issued to produce the alleged detenue before this Court. After her presence is secured and after her responses are ascertained, further course of action shall be decided. At any rate, we find no reason to discontinue the proceedings at this juncture. 24. As per the order in I.A.No.12668/09, additional respondents 7 and 8 have been impleaded. They are the Consulate General of India, Sharjah and the Union of India, represented by the General Secretary, Department of External Affairs, New Delhi. The learned Assistant Solicitor General of India has taken notice on their behalf. The learned ASGI undertakes to get instructions, but prays that simultaneously notice may be issued to respondent Nos.7 and 8. 25. It is hence directed that notice shall be issued to respondent Nos.7 and 8 directly. Simultaneously, the learned ASGI is directed to take instructions from respondent Nos.7 and 8 to immediately ensure that the alleged detenue and the 6th respondent are sent back to India by initiating appropriate steps in accordance with law. If the 6th respondent does not return to India forthwith with the alleged detenue and appear before this Court, the 7th and 8th respondents must take necessary action to impound their passports, cancel their visas and repatriate them to India. If the 6th respondent does not return to India forthwith with the alleged detenue and appear before this Court, the 7th and 8th respondents must take necessary action to impound their passports, cancel their visas and repatriate them to India. Respondent Nos.7 and 8 shall co-operate with respondent Nos.1 to 5 to immediately secure repatriation of the alleged detenue and the 6th respondent. 26. The needful shall be done by respondent Nos.1 to 5 and Respondent Nos.7 and 8 by the next date of posting and it shall be ensured that the alleged detenue is produced before this Court on the next date of posting. Considering the nature of the case, we deem it necessary and direct the 2nd and 3rd respondents to personally monitor and oversee the investigation and ensure that the alleged detenue is produced before this Court on 16.11.09. The learned Government Pleader shall communicate this direction to respondent Nos.2 and 3. 27. Call this petition again on 16.11.2009. If in the meantime the alleged detenue is traced, she shall be produced before the learned Magistrate having jurisdiction and the learned Magistrate shall pass appropriate orders with specific directions to the alleged detenue to appear before this Court on such date of posting. On 16.11.09, respondent Nos.2 and 7 shall file statements before this Court showing in detail the action taken by them in pursuance of these directions. 28. Call on 16.11.2009. Hand over copies of this order to the learned Government Pleader and the learned Assistant Solicitor General of India for immediate communication to respondent Nos.1 to 5 and respondent Nos.7 and 8.