Maryam v. Home Secretary to Government of India & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH DAY OF MARCH 2012/7TH CHAITHRA 1934 WP(Crl.).No. 73 of 2012 (S) --------------------------- PETITIONER(S): ------------- SMT.MARYAM, AGED 33 YEARS W/O.MUHAMMED SIKHANDER GORA NOW RESIDING AT ARACKAL HOUSE, H.NO.CC.11/1318 FORT KOCHI VELI, KOCHI-1. BY ADV. SRI.K.V.SABU RESPONDENT(S): - -------------- 1. HOME SECRETARY TO GOVERNMENT OF INDIA CENTRAL SECRETARIAT, NEW DELHI-110 001. 2. SECRETARY TO GOVERNMENT DEPARTMENT OF HOME AFFAIRS, GOVERNMENT OF KERALA THIRUVANANTHAPURAM.695 001. 3. DIRECTOR GENERAL OF POLICE (LAW & ORDER) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 001. 4. DIRECTOR GENERAL OF POLICE, HEAD QUARTERS, SRINAGAR-190 001. 5. SRI.NAZIR AHAMMED GHORA, AGED 60 YEARS RESIDING AT ANZIMAR KHANIYAR, SREE NAGAR TALUK SREE NAGAR DISTRICT, JAMMU & KASHMIR STATE PIN-190 001. 6. MRS.NEELU FER, AGED 31 YEARS, D/O.NAZIR AHAMMED GHORA RESIDING AT ANZIMAR KHANIYAR, SREE NAGAR TALUK SREE NAGAR DISTRICT, JAMMU & KASHMIR STATE PIN-190 001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION, SRI.TOM JOSE PADINJAREKKARA BY GOVERNMENT PLEADER SRI.SHIBU JOSEPH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 0903-2012, THE COURT ON 27-03-2012 DELIVERED THE FOLLOWING: A P P E N D I X W.P.(CRL)No.73/2012 ## PETITIONER'S EXHIBITS : EXT.P1 : A COPY OF THE CERTIFICATE ISSUED FROM SREE MUFTHY MUHAMMED BASHEER UD DIN DT. 12.6.2010 BEARING NO.7634. EXT.P2 : A COPY OF THE VISITING CARD OF COTTAGE ARTS EMPORIUM. EXT.P3 : A COPY OF THE CERTIFICATE ISSUED FOR SECONDARY SCHOOL EXAMINATION BEARING NO.375262 EXT.P4 : A COPY OF THE CERTIFICATE ISSUED BY THE PASSPORT OFFICE, SRINAGAR DT. 5.5.2003. EXT.P5 :A COPY OF THE RESIDENT ORDER ISSUED FROM THE DEPUTY COMMISSIONER, SRINAGAR ON FILE NO.967/97. TGS ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------W.P.(Crl) No.73 of 2012 ----------------------------------------------Dated this the 27[th] day of March 2012** ## **J U D G M E N T** ## **Joseph Francis, J.** This writ of habeas corpus is filed by the wife of the alleged detenu, under Article 226 of the Constitution of India for production of Muhammed Sikhander Gora, who is her husband, alleged to have been illegally detained by respondents 5 and 6, who are the father and sister of the alleged detenu, residing at Srinagar District in Jammu and Kashmir State. 2. The case of the petitioner is briefly as follows : The petitioner is a permanent resident of Kerala and she is Christian in origin. The petitioner was converted from Christianity to Islam on 12.6.2010 and she married the alleged detenu, who is a Muslim, on 16.6.2010. Respondents 5 and 6 are her father-in-law and sister-in-law and they are residing at Srinagar District in Jammu and Kashmir State. After the marriage, the petitioner and the detenu settled at his house at Srinagar along with respondents 5 and 6. Subsequently, the petitioner's entire gold ornaments and an amount of Rs.1,00,000/- had been misappropriated by her father-in-law. W.P.(Crl) 73/12 2 The petitioner was abused and assaulted by her in-laws at Srinagar and therefore, the petitioner was forced to leave her husband's residence on 27.11.2010 and the petitioner settled at Kochi. At that time, the detenu was working in Chennai and he used to come to Kerala and live with the petitioner at her rented house at Kochi. On 3.9.2011, the detenu came to the house of the petitioner and stayed there for ten days. Subsequently, he informed the petitioner that he would like to contact his parents at Sringar and sought permission of the petitioner to go to Srinagar. The petitioner gave her consent to the detenu to go to Srinagar and accordingly, he went to Srinagar on 13.9.2011. Thereafter, he has not contacted the petitioner. It is reliably known that he is in the illegal custody of respondents 5 and 6. On the above allegations, the petitioner prays for issuing a writ of habeas corpus directing respondents 1 to 4 to find out the detenu, produce him before this Court and release the detenu. 3. When the Writ Petition (Crl) came up before this W.P.(Crl) 73/12 3 Court for admission, we originally issued notice. Thereafter we posted the matter. The arguments advanced by the learned counsel for the petitioner and the learned A.D.G.P. were heard on the question of jurisdiction of this Court. Learned counsel for the petitioner submitted that this court has jurisdiction to entertain this Writ Petition as the part of the cause of action arose within the jurisdiction of this Court. 4. In the decision reported in **Om Prakash Srivastava v. Union of India and another** [(2006) 6 SCC 207), at paragraphs 6 and 7, it is held as follows : “6. Clause (2) of Article 226 of the Constitution is of great importance. It reads as follows : “226.(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” W.P.(Crl) 73/12 4 7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof.” ## In the decision reported in **Appukuttan v. Co-optex** [1999 ## (2) KLJ (NOC) 32], it was held : “Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse. It is a bundle of facts which gives the plaintiff a right to relief against the defendant. In the wider sense they mean the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. But it does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved to enable the plaintiff to obtain a decree.” W.P.(Crl) 73/12 5 ## In the decision reported in **B.Shareefa Ummer v. Joint Secretary & Others** [1997(2) KLT 313], it was held : “In a petition for habeas corpus, detention is one of the important facts which has to be established for securing the release of the detenu. Thus, the detention forms part of the cause of action to be proved in a petition for habeas corpus. So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. These are essential facts which form part of the cause of action. Hence, we hold that this Court has got jurisdiction and hence, the Original Petition is maintainable in this Court.” ## In the decision reported in **Nakul Deo Singh v. Deputy Commandant** [1999(3) KLT 629 (F.B.)], it was held : “Action complained of taking place outside territorial jurisdiction of High Court and appeal therefrom dismissed by an authority located outside the jurisdiction of the High Court - Merely because the order of appellate authority was communicated while petitioner was in Kerala, does not confer jurisdiction in the High Court of Kerala.” 5. We may also notice the judgment of the Division W.P.(Crl) 73/12 6 Bench of this Court reported in **Somanathan v. Umaithlal Shah** (1976 (1) ILR Ker. 328). Therein, the Bench held as follows : “A writ has to be issued to the person who has illegally detailed or in whose custody or control a person is said to be detained. At the time the rule nisi is issued the person under whose custody the detenue is, has to be within the jurisdiction of the court.” 6. In the present case, as per the allegations in the Writ Petition, it is clear that the alleged detenu left the house of the petitioner at Kochi with her consent and by his own will. There is no allegation that respondents 5 and 6 forcibly took the detenu from Kerala or they invited the detenu to their residence at Srinagar for the purpose of detaining him there. There is also no allegation in the Writ Petition that the alleged detenu is detained in a place within the jurisdiction of this Court. The averments in the Writ Petition clearly indicate that the detenue and respondents 5 and 6, who are said to have been detaining the detenu, are not within the jurisdiction of this Court and no part of cause of action had arisen within the jurisdiction of this W.P.(Crl) 73/12 7 Court. Therefore, we are of the view that this Court has no jurisdiction to entertain this Writ Petition. Accordingly, this Writ Petition (Criminal) is dismissed as this Court has no jurisdiction to entertain the Writ Petition. There is no order as to costs. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)