IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ.
W.P. (Crl) No.325 of 2016
Dated this the 24th day of October, 2016
PETITIONER
SAKKER HUSSAIN, PALAKKAD.
BY ADV. SRI.T.K.SANDEEP
RESPONDENTS
1. THE CIRCLE INSPECTOR OF POLICE, TOWN NORTH POLICE STATION, PALAKKAD 678 001.
2. THE SUB â INSPECTOR OF POLICE, TOWN NORTH POLICE STATION, PALAKKAD 678 001. AND 2 OTHERS
R3-R4 BY ADV. SRI.NIREESH MATHEW BY SR. GOVERNMENT PLEADER SRI. K.B. RAMANAND
J U D G M E N T
P.N. Ravindran, J
The petitioner, who claims to be in love with Sumayya, daughter of the third respondent, has filed this writ petition praying for a writ of habeas corpus commanding respondents 1 and 2 to produce the body of Miss Sumayya in this court. He has averred that he has close acquaintance with Sumayya for the past two years, that after they decided to marry, they expressed their desire to their respective parents and his parents agreed for the same. He has also averred that as the third respondent, father of Sumayya, did not agree for giving her in marriage to him, Sumayya decided to go along with him and to have their marriage solemnised and registered under the Special Marriage Act, 1954. It is stated that consequently, elder members of both the families intervened and thereupon, the parents of Sumayya agreed to have the engagement conducted at the nearby mosque on 28.08.2016 and to have the Nikah performed on 01.09.2016. The petitioner has averred that to his dismay, the third respondent thereafter retracted from his promise and the fourth respondent, who is married to Sumayyaâs elder sister, threatened that he will do away with Sumayya if she does not marry a person of his choice. The petitioner has also averred that ever since 28.08.2016 Sumayya is missing and that he has reliable information that she is being physically and mentally harassed and forced to agree for another marriage against her choice and wish. The petitioner has also averred that his complaint to the Sub Inspector of Police, Town North Police Station, Palakkad, did not yield any result.
2. This writ petition which was presented on 31.08.2016, came up for consideration before a Division Bench of this court on 01.09.2016. On that day, the Division Bench passed the following order.
âThe 1st respondent is directed to conduct a discrete enquiry regarding whereabouts of the alleged detenue Ms.Sumayya. If she is available with the respondents 3 and 4, a woman Police Officer, not in uniform, shall be deputed to record her independent statement with respect to the allegations of illegal confinement against her will. Such statement shall be recorded independently, not in the presence of respondent Nos 3 and 4 or any other members of the family or others. The first respondent shall submit the report of the enquiry enclosing such a statement, if any recorded. Post on 06.09.2016.â
3. As directed therein, the Circle Inspector of Police, Town North Police Station, Palakkad, deputed a woman Civil Police Officer to interact with the detenue and submitted a report before this court along with her statement. After perusing the said report and statement, the Division Bench formed the opinion that it is necessary to direct production of the detenue. Notice was accordingly directed to be served on respondents 3 and 4 by special messenger and they were directed to produce the detenue in this court on 09.09.2016. The Circle Inspector of Police, Town North Police Station, Palakkad, was directed to ensure compliance with the said direction. Pursuant thereto, the third respondent produced his daughter in this court. The third respondentâs wife and the petitioner were also present. The detenue stated that she had earlier eloped with the petitioner, but had gone back to her home on the assurance given by her parents that they will solemnize her marriage with the petitioner. She also stated that she does not want to go back with her parents. Having regard to the said statement, this court directed the second respondent, Sub Inspector of Police, Town North Police Station, Palakkad to accommodate the detenue at Santhinikethan Hostel, Vaduthala. Her parents were permitted to meet and interact with her. This court also recorded the statement made by learned counsel on both sides that the parents of the petitioner and Sumayya would discuss among themselves and work out the modalities for conducting a marriage. The writ petition was adjourned to 22.09.2016.
4. On 22.09.2016, after interacting with the parties, the writ petition was adjourned to 29.09.2016. This was for the reason that the third respondent, father of the detenue, was not present in person on 22.09.2016. On 29.09.2016, after hearing learned counsel on both sides and after interacting with the parties, having regard to the statement made by the third respondent that the petitioner is addicted to drugs and is involved in peddling of drugs, the Division Bench directed the Superintendent of Police, Palakkad, to conduct an enquiry into the character and antecedents of the petitioner and to ascertain whether he is in any way involved in peddling drugs or is in the habit of taking drugs like ganja. The writ petition was adjourned to 07.10.2016. Custody of Sumayya was entrusted to her father, the third respondent, who was directed to produce her in this court on 07.10.2016. On 07.10.2016, after interacting with the parties, we adjourned the writ petition to today. We also directed that the third respondent shall have custody of his daughter till then. The writ petition has accordingly come up for hearing before us today.
5. We heard Sri. T.K. Sandeep, learned counsel appearing for the petitioner and Sri. Nireesh Mathew, learned counsel appearing for respondents 3 and 4. We have also gone through the pleadings and the materials on record including the statements filed by the Sub Inspector of Police, Town North Police Station, Palakkad. It is evident from the submissions made at the Bar and the earlier orders passed by this court, more particularly the order passed on 29.09.2016, that the petitioner had eloped with third respondentâs daughter Sumayya and she had gone back to her parents at the intervention of elders of both sides. It is also evident that their parents had held talks to have a marriage conducted in accordance with their religious rites. It is evident from the statements made by third respondent, father of Sumayya, that though initially he was also in favour of the marriage, he is now not agreeable for the reason that a near relation of the petitioner was arrested in connection with a counterfeit case and according to his information, the petitioner is involved in peddling drugs and is in the habit of taking drugs. Taking note of that statement we directed the Superintendent of Police, Palakkad, to cause an enquiry to be conducted into the character and antecedents of the petitioner. The Circle Inspector of Police, Town North Circle, Palakkad, has, after enquiry, submitted a report dated 03.10.2016 to the effect that no criminal case has been registered against the petitioner either in Town North Police Station or in Town South Police station limits. He has also stated that a message was sent to all Police stations to find out whether the petitioner has any criminal cases against him in various stations, but no negative reports were received from the other stations. The Circle Inspector of Police has also stated that though no reports have been received regarding the allegation that the petitioner is indulged in drug peddling activities, it is revealed that he is in the habit of smoking and drinking liquor.
6. During the course of the interaction today and on earlier occasions also Sumayya had stated that she wants to go with the petitioner. The materials on record would disclose that though the third respondent has now taken a different stand, he had earlier agreed to give his daughter in marriage to the petitioner. Though the third respondentâs daughter had, as stated by her on earlier occasions, stated today also that she wants to go with Sri.Sakker Hussain, the petitioner, and marry him, she had in same breath stated that she is not in the illegal custody of her parents. Such being the situation, as the jurisdiction of this court to issue a writ of habeas corpus can be exercised only in a case where the person in whom the petitioner is interested is in illegal custody or is being illegally detained, we are of the considered opinion that the petitioner cannot be granted the relief prayed for in the writ petition. The jurisdictional fact which would warrant the issuance of a writ of habeas corpus is illegal custody or detention. Since illegal detention is lacking in the instant case, notwithstanding the fact that the petitioner is in love with the third respondentâs daughter and the third respondentâs daughter wants to live with him as his wife, we are of the opinion that this court cannot come to the aid of the petitioner to ensure that he is in a position to marry the third respondentâs daughter. That is not the purpose of a writ of habeas corpus, which as stated earlier can be issued only if it is proved that any person in whom the petitioner is interested is in illegal custody or is being illegally detained.
7. In
Prasadhkumar v. Ravindran,1992 (1) KLT 729
a Division Bench of this court held that custody of a girl who has attained majority, by her parents will not amount to illegal custody warranting the issue of writ of habeas corpus by this court. The Division Bench in that case held as follows:
âParents 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.â
8. In
Sreekesh v. Mohammed Asharaf,2003 (1) KLT 397
a Division Bench of this court held that parents are entitled to have custody of their children and it cannot be said to be illegal, especially in the case of a girl. The Division Bench held that though the daughter may have attained the age of majority, it does not mean that no duty is cast on the parents to advise her on important matters and to put her on the correct path.
9. Recently, in
Lal Parameswar v. Ullas,2014 (1) KLT 937
a Division Bench of this court, after considering the aforesaid decisions, held as follows:
â21. We agree that like in any other sphere of life, there has been changes in the social and moral values. Ours is a society which has recognized freedom to every citizen. But then, these changes that we proudly talk about, and the liberties that are guaranteed to our citizens, cannot be stretched beyond limits nor can such freedom be made weapons to destroy our fundamental values or social establishments like families, which, undoubtedly, concede authority on parents to advise and guide their children. We cannot accept as a general principle that the parents are in all circumstances, bound to concede absolute decisional autonomy to their children, even if they have attained majority and remain helpless even in situations where their wards have taken wrong and immature decisions, which will be disastrous not only to the wards themselves but also to the family itself. Such parental authority, except in cases such as those pointed out by the Chancery Division and approved in Sadanandanâs case, should be out of bounds for a writ court, because it is exercised for the ultimate benefit of the ward. It may be to the dislike of the ward, who may resist it and even turn hostile to the parents. But, such immature reactions should not be allowed to influence our judgment, since the ultimate aim and purpose of all these exercise is the welfare of the ward. This Court therefore should, except in extra ordinary situations, loathe interference in cases where the natural parental authority is exercised to the dislike of a lover or even the ward. For these reasons, we find ourselves unable to follow the judgment in Rajmohanâs case (supra) and would follow the earlier judgments.â
In the light of the fact that the third respondentâs daughter has no case that she is being illegally detained by her parents or is being kept under illegal custody and the third respondent has only exercised parental authority, on the facts placed before us, we are of the opinion that the petitioner has not made out a case justifying the grant of the relief prayed for. The writ petition fails and is accordingly dismissed.
