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2017 DIGILAW 441 (KER)

Kozhuvanal Grama Panchayth v. M. A. Jose, Myladiyil House

2017-03-01

DEVAN RAMACHANDRAN

body2017
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 daughter Sameefa, a married woman aged above 21 years (date of birth - 19/3/1989). 2. According to the petitioner, the marriage between his daughter Sameefa and one Shan had taken place on 2.12.2009. The nikah had taken place in accordance with the muslim religious rites, but admittedly the marriage has not been consummated. Shan and the alleged detenue even after the nikah were residing separately and had not started residing together as husband and wife. While the alleged detenue was living at her house (the petitioner is working abroad), the alleged detenue was found to be missing from 29.9.2010. According to the petitioner, the alleged detenue was being illegally detained and confined by the third respondent, a person of the locality. A crime was registered by the Kattoor Police Station as Crime No.468 of 2010. Later, the alleged detenue was traced and produced before the learned Magistrate on 1.10.2010. She being an adult major woman, the learned Magistrate had set her at liberty. According to the petitioner, his daughter, the alleged detenue was being illegally detained and confined by the third respondent. 3. This petition was filed on 1.11.2010. It was admitted on 2.11.2010. The matter was posted to this date. Notice was issued to the respondents. 4. Today when the case was called, the petitioner is present. He is represented by his counsel. The third respondent is present. He is represented by his counsel. Along with the third respondent, the alleged detenue has also come to court. 5. As the alleged detenue comes to this court along with/in the custody of the third respondent, who is allegedly detaining and confining her, we permitted the alleged detenue to remain alone in the chamber with no opportunity for the third respondent to influence her. We, however permitted the petitioner/ the father of the alleged detenue to interact with her during the pre-lunch session. They, thus had interactions during the entire pre-lunch session. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of the petitioner, her father. Still later, we interacted with them in the presence of the third respondent. They, thus had interactions during the entire pre-lunch session. After the lunch recess, we interacted with the alleged detenue alone initially and later in the presence of the petitioner, her father. Still later, we interacted with them in the presence of the third respondent. The learned counsel for the petitioner, the learned counsel for the third respondent and the learned Government Pleader were also present. 6. The alleged detenue states that she has already secured a divorce from Sri. Shan with whom Nikah was performed, but there was no consummation. A copy of the thalak notice dated 5.10.2010 issued by the said Shan to the alleged detenue is produced to confirm that the marriage has been dissolved, in accordance with law, by the said thalak communication dated 5.10.2010. It is the case of the alleged detenue and the third respondent that they have been in love for a long period of time and that they have got married on 29.9.2010 as per the ceremonies which took place at the Akhila Kerala Misra Vivaha Sahaya Samithi. The alleged detenue and the third respondent have a further case that the alleged detenue who belonged to muslim community has converted to Hindu community on 19.10.2010 at the Bharatiya Hindu Shudhi Sabha Araya Samaja Mandir, Ram Mohan Road, Kozhikode. Both, the alleged detenue and the third respondent assert that they want to live as husband and wife. They further submit before Court that they have already taken necessary steps to issue notice for solemnisation and registration of marriage under the provisions of the Special Marriage Act. They submit that if sufficient time is granted, they shall produce the certificate of marriage by the next date of posting. 7. In a petition for the issue of a writ of habeas corpus, we are primarily concern with the response of the alleged detenue. The alleged detenue states before us categorically that she is not under any illegal detention or confinement. She was in love with the third respondent. She is willing to continue the relationship with the third respondent. The alleged detenue had married one Shan. The said Shan has already divorced her by communication dated 5.10.2010. She wants to get married to the third respondent. She and the third respondent want time to get their marriage duly solemnised and registered under the Special Marriage Act. She is willing to continue the relationship with the third respondent. The alleged detenue had married one Shan. The said Shan has already divorced her by communication dated 5.10.2010. She wants to get married to the third respondent. She and the third respondent want time to get their marriage duly solemnised and registered under the Special Marriage Act. She prays that she may be permitted to leave the court along with the third respondent. 8. We are convinced from the statement of the alleged detenue that she is not under any illegal detention or confinement. We respect her decisional atonomy. We accept her statement that she wants to go with the third respondent. We are assuming that there has been no legally acceptable marriage between the alleged detenue and the third respondent, but we note that the alleged detenue has already secured divorce from the said Shan with whom the Nikah has been performed. We accept the statement of the alleged detenue and the third respondent that they are taking steps to get their marriage properly solemnised and registered under the provisions of the Special Marriage Act. We are satisfied in these circumstances that no directions can or need be issued under Article 226 of the Constitution. 9. We sympathetically understand the plight of the petitioner who is unable to accept the relationship between his daughter, the alleged detenue and the third respondent. We find him a heart broken person as he is unable to stand the trauma. The alleged detenue has not completed her marriage with the said Shan by consummation of marriage in accordance with the Muslim religious rites. 10. Notwithstanding the disappointment and frustration of the petitioner, we are bound to respect the decisional atonomy of the alleged detenue. We accept the statement that she wants to leave the court along with the third respondent. 11. In the result, (a) this Writ Petition is dismissed. (b) the alleged detenue Shameefa, the daughter of the petitioner, an adult major woman aged above 21 years is permitted to leave the court along with the third respondent as desired by her. We accept the statement that she wants to leave the court along with the third respondent. 11. In the result, (a) this Writ Petition is dismissed. (b) the alleged detenue Shameefa, the daughter of the petitioner, an adult major woman aged above 21 years is permitted to leave the court along with the third respondent as desired by her. (c) We accept the statement of the alleged detenue and the third respondent that they shall get their marriage solemnised and registered in accordance with the provisions of the Special Marriage Act and shall produce before this court the certificate of marriage to confirm such marriage between them on the next date of posting. (d) We accordingly post the case on 20.12.2010 to enable the alleged detenue and the third respondent to produce certificate of marriage to confirm solemnisation and registration of their marriage under the provisions of the Special Marriage Act along with a copy thereof for being furnished to the petitioner.