## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON**
**&**
## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**TUESDAY,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940**
## **WP(C).No. 1627 of 2019**
## **PETITIONER:**
**SAYID NAZEER, AGED 42 YEARS,**
**PULICKAL KALITHUNDI HOUSE, VENNALA P.O., KOCHI, RESIDING AT CHANAPARAMBU, VADACODE, KANGARAPPADY, ERNAKULAM DISTRICT**
**BY ADV. SRI.M.J.SANTHOSH**
## **RESPONDENTS:**
- **1 THE CIRCLE INSPECTOR OF POLICE KALAMASSERY POLICE STATION-683 014**
- **2 M.D.BABU, S/O. KUNJACHEN, MULLACHETH (H), S.N.PURAM, CHOORNIKARA VILLAGE, ALUVA-683 101**
- **3 TONY JOHN S/O. JOHN, PORUTHUKARAN (H), IRINJALAKUDA P.O., PIN680 121 R2 AND R3 BY ADV. SMT.P.SAREENA GEORGE**
**R1 BY SR.GOVT.PLEADER SRI.P.P.THAJUDEEN**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **WP(C) NO.1627 OF 2019**
## **JUDGMENT**
## **N.ANIL KUMAR,J:**
The petitioner has filed this writ petition seeking a writ of mandamus or any other appropriate writ, order or direction directing the first respondent to provide adequate protection to the life and business of the petitioner and his family.
2. The facts as borne out in the writ petition are as follows:-
Ms.Silpa Babu, aged 21 years, who is unmarried and had completed B.Com degree course, is madly in love with the petitioner. She was found missing from her house from 13.8.2018 onwards. The second respondent, who is her father, lodged a complaint before the Police under Section 57 of the Kerala Police Act. While so, the second respondent filed W.P(Crl.) No.350/2018 before this Court seeking a writ of habeas corpus for commanding production of the corpus of his daughter based on an allegation that she was under illegal confinement of the petitioner. As ordered by this Court, Ms.Shilpa Babu was produced before another Division Bench of this court and she expressed her strong determination to marry the petitioner. She stated before court that she had taken a decision to convert to Islam and to solemnise a customary marriage with the petitioner in accordance with the personal law governing the petitioner. Finding that she had taken an independent decision at her own will to
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leave the parental house and to lead a life with the petitioner, the writ petition was disposed of by setting the alleged detenue at liberty to go along with the petitioner as desired by them.
3. According to the petitioner, subsequent to the disposal of Ext.P1, Ms.Shilpa had joined in a religious institution at Ponnani for conversion as Islam. He would state that the respondents 2 and 3 made several attempts to attack the petitioner and he is living under the fear of attack from the party respondents. Various complaints made to the Police having no avail, the petitioner has filed this writ petition seeking indulgence from this Court.
4. Second and third respondents entered appearance in this case. Second respondent filed counter affidavit for and on behalf of the third respondent as well. Second respondent submits that due to the emotional toll on him from the frustrating incidents in his life, his health has become deteriorated. His blood pressure and blood sugar levels have increased at an alarming rate and while he was travelling in a scooter on 23.8.2018 as a pillion rider, he fell down from the vehicle and was under treatment initially at Lakshmi Hopsital, Aluva and thereafter at Renai Medicity, Ernakulam till 23.11.2018. He also produced Ext.R2E to prove his bona fides that he was under treatment at Renai Medicity, Palarivattom from 16.11.2018 to 23.11.2018. On 1.1.2019, he was taken to Renai Medicity, Palarivattom for treatment of diabetic foot. Ext.R2F would show that
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he is undergoing treatment even now and not in a position to travel without the help and support of others. Under the circumstances, the learned counsel for the party respondents contend that the contention of the petitioner that on 14.1.2019, the party respondents attempted to intercept the petitioner and threaten him, is a cock-and-bull story.
5. Ext.P1 would show that the Division Bench of this Court interacted with the alleged detenue and it was disclosed that she had left the parental home on 13.8.2018 along with the petitioner and was roaming around different places in Kerala. During the pendency of the above writ petition, Smt.Fasna.K.S, the wife of the petitioner had filed an application to get herself impleaded in the writ petition. She was impleaded as a party to the proceedings and she submitted before the court that she was carrying a second child of the petitioner. In Ext.P1, the Division Bench noted that Ms.Shilpa Babu was aware of the fact that the petitioner is a person having a legally wedded wife and a child born out of that wedlock and that his wife is carrying a second child of the petitioner. However, Ms.Shilpa Babu stood by what she said and she had taken a decision to marry the petitioner in accordance with the personal law of the petitioner.
6. As early as on 14.5.2018, it is disclosed that the petitioner submitted Ext.R2B application before the Marriage Officer, Edappally to get the marriage of the petitioner and Shilpa got registered by submitting false affidavit suppressing the first marriage of the petitioner. On the
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basis of Ext.R2B, the second respondent submitted a complaint before the Station House Officer, Elamakkara Police Station to take legal action against the petitioner and others for committing forgery. Since no action was taken by the police, the second respondent filed a complaint before the Judicial First Class Magistrate- II, Aluva and the same was forwarded to the Police for investigation under S.156(3) of Cr.P.C. Consequently, the Police registered Crime No.1022/2018 for the offences under Sections 465,468, 471 r/w 34 of IPC against the petitioner, Ms.Shilpa Babu and other identifiable person as Ext.R2D.
7. Learned counsel for the party respondents submitted that second and third respondents have never threatened the petitioner as alleged. Ext.P2 petition is dated 3.10.2018. On going through Ext.R2E and R2F, it is clear that the second respondent was seriously ill and was under treatment. Under the circumstances, it appears that the cause of action alleged by the petitioner is not true to facts. Going by the entire pleadings in this case, suppression of material facts is writ large from the conduct of the petitioner.
8. Suppression of material facts is viewed seriously by the superior courts exercising their discretionary jurisdiction. In **M/s.S.J.S. Business Enterprsies (P)Ltd.** v. **State of Bihar and others** [AIR 2004 SC 2421], the Apex Court held as follows:-
“ _As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out_
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_of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case.........”_
## In **Prestige Lights Ltd** . v. **State Bank of India** [(2007)8 SCC 449], the
Apex Court held as under:-
“......................... _The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain the petition and dismiss it without entering into the merits of the matter. “_
In view of this legal position, since the petitioner is guilty of suppressing material facts, on this ground alone, the petition deserves to be dismissed.
9. Looking from any angle, there is no merit in this petition. The petitioner has suppressed material facts and alleged falsehood. The petitioner is a married man, having wife and children. Ms.Shilpa Babu, the daughter of the second respondent is eager to get married with him. She has every right to live independently at her own will and pleasure and the law does not permit her to restrict her autonomy to live independently. However, suppression of fact by way of non-
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disclosure would certainly affect the petitioner's right of access to justice under Art.226 of the Constitution of India. We accordingly refuse to exercise our discretionary jurisdiction under Art.226 of the Constitution of India. The writ petition is accordingly dismissed.
Sd/-
**P.R.RAMACHANDRA MENON** , JUDGE
sd/-
**N.ANIL KUMAR** , JUDGE
MBS/
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 THE TRUE COPY OF ORDER OF HON'BLE COURT DATED 24/9/18 IN WP(CRL) NO.350/2018**
**EXHIBIT P2 THE TRUE COPY OF COMPLAINT DATED 3/10/18**
## **RESPONDENTS' EXHIBITS:**
**Ext.R2A:TRUE COPY OF MARRIAGE CERTIFICATE BEARING NO.3068/2016 DTD.21.5.2016 ISSUED BY KUNNATHUNAD GRAMA PANCHAYATH.**
**Ext.R2B: TRUE COPY OF APPLICATION DTD.24.-9-2018 SUBMITTED UNDER RTIACT.**
**EXT.R2C: TRUE COPY OF ANSWERS OBTAINED UNDER RTI ACT.**
**EXT.R2D: TRUE COPY OF FIR NO.1022/2018 OF ELAMAKKARA PS.**
**EXT.R2E: TRUE COPY OF DISCHARGE SUMMARY FOR THE PERIOD FROM 16-11-2018 TO 23-11-2018 ISSUED BY RENAI MEDICITY, PALARIVATTOM.**
**EXT.R2F: TRUE COPY OF DISCHARGE SUMMARY DTD.1.1.2019 ISSUED BY RENAI MEDICITY, PALARIVATTOM.**
