Philomina Saiman v. Sub Inspector of Police, Kattoor Police Station; The Superintendent of Police, Thrissur District; Visakh (the detenue)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** **- WP(Crl.).No. 31 of 2019 S** ## **PETITIONER:** **PHILOMINA SAIMAN AGED 45 YEARS D/O.THOMAS, KIZHAKKEMAATTUMMAL HOUSE, PADIYOOR P.O., THRISSUR.** **BY ADVS. SRI.V.MAHENDRANATH SMT.C.B.ABHINAVA SMT.K.CAROLINE IGNATIUS SMT.M.VISHNUPRIYA SRI.R.SYLESHWAREN NAIR** ## **RESPONDENTS:** **1 SUB INSPECTOR OF POLICE KATTOOR POLICE STATION, THRISSUR-680001. 2 THE SUPERINTENDENT OF POLICE THRISSUR DISTRICT, THRISSUR-680001. 3 VISHAK, AGED 20, VADAKKOOTTU PARAMBIL HOUSE, VETTUKAD - 680 014, THRISSUR. BY ADVS. DIRECTOR GENERAL OF PROSECUTION SRI.P.DEEPAK** ## **OTHER PRESENT:** **GP-SMT. K.K.SHEEBA** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl) No.31/2019 -:2:- ## **C.K. ABDUL REHIM** ## **& T.V. ANILKUMAR, JJ.** **----------------------------------------------------W.P.(Crl) No. 31 OF 2019 S -------------------------------------------------------** _Dated this the 30[th] day of January, 2019_ ## **J U D G M E N T** ## _**Abdul Rehim, J.**_ Mother of a girl named Miss Soni, aged 18 years, is the petitioner herein, seeking a writ of Habeas Corpus for commanding production of the corpus of Miss Soni(hereinafter referred to as 'the alleged detenue') and to set her at liberty from the alleged illegal detention of the 3[rd] respondent. 2. Averments in the writ petition in brief are that, the alleged detenue is the younger daughter of the petitioner and she was living for some time with her elder sister at Mettupalayam, in Tamil Nadu State. On her way back from Tamil Nadu, she was missing from Thrissur, since 01.01.2019. The petitioner had lodged a complaint before the 1[st] W.P.(Crl) No.31/2019 -:3:- respondent, as evidenced from Ext.P3. Enquiries made by the petitioner revealed that the alleged detenue was taken into custody by the 3[rd] respondent and the 3[rd] respondent is illegally detaining her against her free will. Raising an allegation that the police is not taking effective steps to get the allleged detenue released, the above writ petition is filed. 3. Based on notice received from this court, the 3[rd] respondent appeared and produced the alleged detenue before this court, on today. The 3[rd] respondent is also represented through a lawyer. When we interacted with the alleged detenue she said that, she is in deep intimacy with the 3[rd] respondent since the last one year. When the petitioner came to know about their relationship she compelled her to shift to her sister's house at Tamil Nadu. The petitioner and other family members started proposals for the marriage of the alleged detenue with somebody else. Under such circumstances, it is stated that, she had voluntarily gone along with the 3[rd] respondent on W.P.(Crl) No.31/2019 -:4:- 01.01.2019 and was living in the house of a relative of the 3[rd] respondent. She said that, they have performed a ceremony of marriage at a temple near to the house of the 3[rd] respondent, on 02.01.2019. She had denied the allegations of illegal detention. She is not willing to go back to her parental house, along with the petitioner. 4. Learned counsel appearing for the petitioner contended that, the alleged detenue is a Christian by religion, whereas the 3[rd] respondent is a Hindu. It is pointed out that the alleged ceremony of marriage has no legal sanctity. Therefore it is requested to this court that the alleged detenue may not be permitted to go along with the 3[rd] respondent, since there exists no valid marriage between them. 5. We have also interacted with the 3[rd] respondent. The 3[rd] respondent said that he is a 'welder' by profession. It is stated that he will attain the age of 21 years(marriageable age) only on 19.10.2019. According to the 3[rd] respondent, after he W.P.(Crl) No.31/2019 -:5:- attains the marriageable age, it is proposed to solemnize a valid marriage either by converting the alleged detenue into Hindu religion or through solemnization of the marriage under the Special Marriage Act. He said that, till then he is ready and willing to keep the alleged detenue at this house. According to the 3[rd] respondent, his parents are also willing to accept the alleged detenue as their daughter-in-law. 6. It is evident that the alleged detenue is now living along with the 3[rd] respondent on her own wish and will. The allegation of illegal detention has no basis. We take note of the fact that, a valid marriage between the alleged detenue and the 3[rd] respondent could be solemnized only on the 3[rd] respondent attaining the marriageable age, in October, 2019. But the alleged detenue expressed her strong desire to live together with the 3[rd] respondent and she is not willing to go back to her parental home. 7. In the decision in _**Nandakumar v. State Of Kerala**_ W.P.(Crl) No.31/2019 -:6:- _**[AIR 2018 SC 2254]**_ the hon'ble apex court had observed that, even if the parties are not competent to enter into a wedlock, they have a right to live together even outside the wedlock. It is held that, _“It would be out of place to mention that live-in relationship is now recognized by the legislature itself, which has found its place under provisions of the Protection of Women from Domestic Violence Act, 2005.”_ It is further held that, _“In a Habeas Corpus petition, the role of the Court is to see that the detenue is produced before it, find out about his/her independent choice and see to it that the person is released from illegal restraint. The issue will be a different one when the detention is not illegal. What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed_ W.P.(Crl) No.31/2019 -:7:- ## _status as the Constitution guarantees.”_ 8 _._ In the case at hand, we are convinced that the alleged detenue has taken her choice to live-in together with the 3[rd] respondent, on her own wish and will. Liberty to that extent, which is guaranteed under the Constitution, cannot be curtailed by this court. Under the above mentioned circumstances, the above writ petition fails and the same is hereby dismissed. The alleged detenue is set at liberty to go along with the 3[rd] respondent, as desired by her. **Sd/- C.K. ABDUL REHIM, JUDGE** . **Sd/- T.V. ANILKUMAR, JUDGE** . ul/- [True copy] P.S. to Judge. W.P.(Crl) No.31/2019 -:8:- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AADHAAR CARD OF THE PETITIONER'S MISSING DAUGHTER.** **EXHIBIT P2 TRUE COPY OF THE COLLEGE IDENTITY CARD OF THE PETITIONER'S MISSING DAUGHTER.** **EXHIBIT P3** **TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SHO KATTUR POLICE STATION, THRISSUR.**