V.A. Salam v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** **WP(Crl.).No.424 OF 2019** ## **PETITIONER/S:** **V.A.SALAM, AGED 49 YEARS S/O ADIMA, VAYALODATH HOUSE, VELIYATHUNADU P.O, ERNAKULAM DIST., PIN - 683 511.** **BY ADVS. SRI.P.K.VARGHESE SRI.R.ROHITH SMT.HARISHMA P.THAMPI** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY HOME SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR GENERAL OF POLICE, KERALA STATE POLICE HEAD QUARTERS, VAZHUTHAKKADU.P.O, THIRUVANANTHAPURAM, PIN-695 014.** - **3 DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, ERNAKULAM RURAL, ERNAKULAM DISTRICT,PIN-683 101.** - **4 AKHIL, AGED 19 YEARS, S/O.AYYAPPAN, PUTHANVEEDU HOUSE, KIZHAKKEKKARA, KAVALLUR STREET, VATTIYOORKKAVU.P.O, THIRUVANANTHAPURAM,PIN-695 013.** - **ADDL.R5 THE STATION HOUSE OFFICER, VATTIYOORKKAVU POLICE STATION, VATTIYOORKKAVU P.O., THIRUVANANTHAPURAM – 695 013. ADDL.R5 IS IMPLEADED AS PER ORDER DATED 04.12.2019 IN I.A.NO.1/2019. R1-3 BY DIRECTOR GENERAL OF PROSECUTION R1-R3 BY K.B.RAMANAND, GP** - **OTHER PRESENT:** **R4 ADV .ARUN ASHOK --FOR RESPONDENTS .** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(Crl.).No.424 OF 2019 2 ## **JUDGMENT** ## **Harilal, J** The petitioner herein is the father of the alleged detenue and this writ petition has been filed on the allegation that the alleged detenue is under the unlawful detention of the 4[th] respondent. 2. In compliance with the interim order of this Court, the detenue has been produced before this Court by the 4[th] respondent and we have interacted with the detenue. The detenue is aged 19 years. She emphatically denied the allegation that she is under the unlawful detention of the 4[th] respondent. According to her, herself and the 4[th] respondent fell in love with each other and they have decided to get married. When the petitioner WP(Crl.).No.424 OF 2019 3 came to know about the love affair, he opposed the same and consequently on 20.11.2019, she eloped with the 4[th] respondent and thereafter their marriage was solemnised, in accordance with the Hindu religious rights and ceremonies. According to the detenue, from 20.11.2019 onwards, they are living together as husband and wife. She wants to go and live along with the 4[th] respondent and she does not want to go and live along with the petitioner in her parental home. When we communicated with the 4[th] respondent, he admitted the love affair with the detenue and the marriage was allegedly solemnised, in accordance with the Hindu religious rights and ceremonies. Thus, both the detenue and the 4[th] respondent admitted that they are living together, WP(Crl.).No.424 OF 2019 4 from 20.11.2019 onwards, as husband and wife. 3. We observe that, though the 4[th] respondent has not attained the marriageable age, the detenue has attained majority and she has the right to live in accordance with her will and wish and nobody has any kind of right to obstruct her free and independent life. We observe that the detenue belongs to Muslim community and the 4[th] respondent is a Hindu, but the validity of their marriage does not come for consideration in a proceedings, under Article 226 of the Constitution of India. In **Nandakumar v. State of Kerala** [ **2018 (2) KLT 783 (SC)]** , the Supreme Court held that “even if the parties were not competent to enter into wedlock (when position itself is disputed) WP(Crl.).No.424 OF 2019 5 they have right to live together even outside the wedlock. It would not be out of place to mention that live in relationship is now recognised by the legislature itself which has found its place under the provisions of Protection of Women from Domestic Violence Act, 2005. 4. In the light of the aforesaid decision, we conclude that, even if the 4[th] respondent has not attained the marriageable age, the detenue being a major, has the right to live together with the 4[th] respondent. We hope that they will register their marriage, in accordance with law, when the 4[th] respondent attains the marriageable age. However, we find that the detenue is not under the unlawful detention of the 4[th] respondent, as WP(Crl.).No.424 OF 2019 6 alleged in this writ petition and there is no circumstance warranting interference of the writ jurisdiction, under Article 226 of the Constitution of India. Hence, this writ petition would stand dismissed. 5. When we interacted with the 4[th] respondent as well as the detenue, they expressed their apprehension that they are under the threat from the part of the petitioner and his relatives. In view of the said submission, we make it clear that the 4[th] respondent and the detenue are at liberty to approach the police, the 5[th] respondent herein, in case of any threat or obstruction from the part of the petitioner or anybody under him and in that circumstance, the 5[th] respondent shall provide WP(Crl.).No.424 OF 2019 7 adequate police protection to them and shall ensure their free and independent life, together. 6. Further, the detenue submitted that her SSLC certificate and Aadhar card are in the custody of the petitioner and she wants those documents to proceed her further study and the registration of their marriage, in accordance with law. The petitioner fairly submitted that he is in possession of the aforesaid documents and he is ready to hand over the same to the detenue, forthwith. Thus, he has handed over the aforesaid documents to the alleged detenue and she got satisfied with it. When we interacted with the mother of the 4[th] respondent, she also made an assurance that she will look after the detenue, as WP(Crl.).No.424 OF 2019 8 her own daughter and she will see that the marriage is registered, under the Special Marriage Act, when the 4[th] respondent attains majority. **Sd/- K.HARILAL, JUDGE** **sd/- C.S.DIAS, JUDGE** AMV/04/12/2019 WP(Crl.).No.424 OF 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RECEIPT IN PETITION NUMBER 61580/2019/E,ISSUED BY 3RD RESPONDENT'S OFFICE.** **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**