Nelson J Vadassery v. Paulson K.M. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944** **WP(CRL.) NO. 10 OF 2023** ## **PETITIONER:** **NELSON J VADASSERY, AGED 47 YEARS, S/O V.J.JOHN, VADASSERY HOUSE, PALLURUTHY NADA, KOCHI, PIN - 682006** **BY ADV SRI. M.H.HANIS** ## **RESPONDENTS:** |**1**|**PAULSON K.M., AGED 36 YEARS,**| |---|---| ||**S/O MICHEAL, KALAPARAMBATHU HOUSE, NEAR DLB QUARTERS,**| ||**PALLURUTHY, KOCHI – 682006, MOB:8075688388.**| |**2**|**STATION HOUSE OFFICER,**| ||**PALLURUTHY KASBA POLICE STATION, KOCHI, PIN - 682006**| |**3**|**ASSISTANT COMMISSIONER OF POLICE,**| ||**MATTANCHERY SUB DIVISION, MATTACHERRY, KOCHI- 682002**| ||**SRI. SAIGI JACOB PALATTY-SR.GP**| ## **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON** **30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS & C. S. SUDHA, JJ. ====================================== W. P. (Crl.) No. 10 of 2023 ====================================== Dated this the 30[th] day of January, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the above Writ Petition (Criminal) seeking for _Habeas Corpus_ are as follows: “ - _i. Issue a writ of habeas corpus commanding the respondents to produce the body of the detenu viz. Aielien Fernado Nelson, aged 18 years, Vadassery House, Palluruthy Nada, Kochi-682006, the daughter of the petitioner before this Hon'ble Court and set her at liberty forthwith._ - _And_ - _ii. grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Criminal).”_ 2. Heard Sri. M. H. Hanis, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for the official respondents 2 & 3. Though R-1 has been duly served, he has not entered appearance through counsel, but R-1 has personally appeared before us and made his submissions. 3. The case set up in the above Writ Petition (Criminal) is to the effect that, the petitioner herein, aged 47 years, is the father of the alleged detenue – 'Ms. Aielien Fernado Nelson' and that, her Date of W. P. (Crl.) No. 10 of 2023 - : 2 :- Birth is 29.10.2004 and she has just completed the age of 18 years on 29.10.2022 and that, she is a First Year B.Sc.Nursing student at St.Philominas Nursing Institute, Koramangala, Bangalore. That, the petitioner's daughter had returned home during Christmas Holidays and she was residing with her parents and was later found missing. According to the petitioner, he could reliably learn that she was under the wrongful confinement of the 1[st] respondent. The 1[st] respondent is living in immediate neighbourhood of the petitioner and that, his antecedents are far from satisfactory and that, he has involved in at least 3 crimes. Further that, the petitioner could reliably learn that his daughter was forcibly intoxicated with liquor by the 1[st] respondent, etc. 4. We had issued notice in this case on 6.1.2023 and had directed R-2 (SHO) to ensure the production of the alleged detenue before this Court at 10.15 A.M. on 11.1.2023. On 11.1.2023, the alleged detenue was produced before us. She kept on telling us that, she wants to immediately go and live with the 1[st] respondent. From our assessment after interacting with her, we had reasons to believe W. P. (Crl.) No. 10 of 2023 - : 3 :- that she appeared to be immature and has been taken a stand without thinking about consequences. Moreover, we noted that the 1[st] respondent is aged about 34 years old and the difference in age between the 1[st] respondent and the alleged detenue is about 16 years. 5. We interacted with her parents as well as her younger sister. We thought it fit, in the better interest of the alleged detenue, that she be accommodated in a ladies' hostel for some time, so that she can ponder over and duly reflect to take a decision in the matter. 6. Since the counsel for the petitioner had strongly submitted that the 1[st] respondent is drug addict and that, he is involved in crimes and that, it is due to his bad influence that the alleged detenue has been forcibly intoxicated, etc. we had requested the learned Prosecutor to get specific instructions from the competent police authorities as to whether the 1[st] respondent has any negative antecedents and also, to convey the said information to us through a report, for our perusal. Further, we also directed the Secretary, District Legal Services Authority, Ernakulam (DLSA) to ensure that the alleged detenue is given counselling through one of the W. P. (Crl.) No. 10 of 2023 - : 4 :- Counsellors/Psychologists of the Family Counselling Centre attached to this Court and the Counsellor was also requested to give a report directly to this Court. Accordingly, the alleged detenue was accommodated in a ladies' hostel in this city. She was also given counselling by a Counsellor of the Family Counselling Centre attached to this Court. 7. When the matter came up on 27.1.2023, the alleged detenue again kept on repeating that she wants to immediately go and live with the 1[st] respondent. We had also gone through the report of the Counsellor (Psychologist). The Counsellor had also reported that the alleged detenue was quite immatured in her interaction. The learned Prosecutor then reported that there are at least 3 crimes against the 1[st] respondent, most of which were regarding intoxication in public places and drunken driving etc. Moreover, it was brought to our notice that the Psychologist attached to the Family Counselling Centre was not then available. Accordingly, we ordered that the alleged detenue should be assessed by a Psychologist and the alleged detenue was, thus, assessed W. P. (Crl.) No. 10 of 2023 - : 5 :- by the Psychologist - Smt. T. S. Seema (who has taken M.A. Psychology and Specialization in Clinical Psychology) on 28.1.2023 from 10 A.M. to 1.30 P.M. as well as today (30.1.2023) from 10 A.M. to 1.30 PM. 8. Today we initially interacted with the Psychologist, the alleged detenue, her parents as well as her sister in our Chambers. We are given to understand that the alleged detenue had lived with the 1[st] respondent under the same roof for about 15 days. We are given a distinct impression that, the alleged detenue, who was hardly aged 18 years, was even given some liquor by the 1[st] respondent which she had consumed. We queried to the alleged detenue about this and she replied that she did not feel it to be wrong for her age. We also interacted with the Psychologist - Smt. T. S. Seema, who has told us, in clear terms, that despite her diligent and consistent efforts, the alleged detenue is still adamant and that, the alleged detenue wants to live with the 1[st] respondent, at any cost. We then interacted with the parents as well as the alleged detenue. The alleged detenue has again insisted before us that she wants to live with the 1[st] respondent, at any cost. W. P. (Crl.) No. 10 of 2023 - : 6 :- 9. On all the 3 occasions, we had done our best to enlighten the alleged detenue about the consequences of her action and that, she should seriously think about, at least, continuing her studies before she thinks in terms of living together with the 1[st] respondent. All our efforts were in vain. We also told the parents to bear the present issues with fortitude and to face the reality. 10. Thereafter, we had heard the case in the Court. Sri.M.H.Hanis, learned counsel appearing for the petitioner, has placed reliance on the decision of the Division Bench of this Court in _**Lal Parameswar v. Ullas** [2014 (1) KLT 937]_ , wherein it has been held that, it cannot be accepted as a general principle that the parents, in all circumstances, are 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. Further, it was held that, such parental authority, except in cases such as those pointed out by the Chancery Division and approved in W. P. (Crl.) No. 10 of 2023 - : 7 :- _**Sadanandan's**_ case _**(1974 KLT 650)**_ , should be out of bounds for a Writ Court, because it is exercised for the ultimate benefit of the ward. In that case, the detenue was with the parents and the writ petitioner was the alleged detenue's lover who had sought the remedy of _Habeas Corpus_ . 11. In _**Sadanandan's**_ case supra _**(1974 KLT 650),**_ the alleged detenue was a 21-year-old married lady and she wanted to stay with her parents and the petitioner therein (the alleged detenue's husband) claimed that she was under the illegal detention of her parents. The alleged detenue had taken the stand that she was staying with her parents on her own will and that, her marriage has been repudiated. In those circumstances that this Court had held that, there was no illegal detention and that, the act of the alleged detenue, in staying with her parents, is not illegal, etc. 12. In the present case, the alleged detenue was in the company of the 1[st] respondent (lover) and it was the parents who sought the remedy of _Habeas Corpus_ . On all occasions, the alleged detenue has told us, in clear and categorical terms, that she had W. P. (Crl.) No. 10 of 2023 - : 8 :- voluntarily gone and stayed with the 1[st] respondent and that, she wants to continue living with him. The only issue that concern us is, as to whether the alleged detenue is under the illegal detention or wrongful confinement of the 1[st] respondent or anyone else. The definite answer was given to us, after due interaction with the alleged detenue on 3 occasions (out of which, in 2 occasions, it was after due counselling and assessment by the Psychologist) and at a time when she was staying in a ladies' hostel. In all the 3 occasions, the alleged detenue has told us firmly that she is not under the illegal detention of the 1[st] respondent and that, she wants to live with him. 13. We are also equally concerned about the dilemma faced by the parents. Even the Psychologist has reported before us that the alleged detenue has taken an immature decision. True, that the Psychologist has apprised us that the alleged detenue has taken an adamant and immatured stand. The alleged detenue has completed the age of 18 years about 3 months back. She has been given sufficient time to reflect and ponder over her future course of action. After this due process, we will not be justified to hold that the W. P. (Crl.) No. 10 of 2023 **==> picture [30 x 9] intentionally omitted <==** alleged detenue is under the illegal detention of the 1[st] respondent and that, she should be brought to the control of her parents. In other words, the plea set up in the above writ proceedings that, the alleged detenue is under the illegal detention and wrongful confinement of the 1[st] respondent is not factually tenable. Accordingly, the alleged detenue is at liberty to carry out her wishes. We place on record our appreciation for the service rendered by Smt. T. S. Seema, Psychologist. With these observations and directions, the above Writ Petition (Criminal) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- C. S. SUDHA, JUDGE MMG ## **APPENDIX OF WP(CRL.) NO. 10/2023** ## **PETITIONER's EXHIBIT:** **EXHIBIT P1 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT**