Niyas P vs The District Police Chief
2021 Latest Caselaw 14589 Ker

W.P.(Crl.)No.160 of 2021               1




          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT
             THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                      &
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943


                           WP(CRL.) NO. 160 OF 2021
PETITIONER/S:

             NIYAS P.
             AGED 30 YEARS
             S/O. ABDULLA, PARAVAKKAL HOUSE, MAMPAD COLLEGE
             POST, MALAPPURAM DISTRICT

             BY ADV K.RAKESH



RESPONDENT/S:

      1      THE DISTRICT POLICE CHIEF
             OFFICE OF THE DISTRICT POLICE CHIEF, PALAKKAD,
             PALAKKAD DISTRICT, PIN-678 001

      2      THE STATION HOUSE OFFICER,
             CHERPULASSERY POLICE STATION, CHERPULASSERY,
             PALAKKAD DISTRICT,PIN-679 503

      3      UBAID
             S/O. MUHAMMED , THIYYATTIL HOUSE, CHERUKODE POST,
             MALAPPURAM DISTRICT, PIN-679 336
 W.P.(Crl.)No.160 of 2021                 2




              FOR R1 AND R2 BY ADVS.
              SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR




       THIS    WRIT        PETITION   (CRIMINAL)   HAVING   COME   UP   FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.P.(Crl.)No.160 of 2021             3


                               JUDGMENT

Ziyad Rahman A.A., J.

This writ petition is filed by the petitioner

for issuance of a writ of habeas corpus directing

the 1st and 2nd respondents to produce the body of

alleged detenue named 'Shabna', the daughter of the

3rd respondent.

2. His case is that, the alleged detenue is

aged 21 years, and she is already married to another

person with a child. Due to some matrimonial

disputes between the spouses, she was living

separately from her husband in her parental house.

Later, the petitioner and the alleged detenue fell

in love and have decided to lead a life together. In

pursuance to such decision, she along with her child

left her parental house, and joined the company of

the petitioner. Based on a complaint received from

the 3rd respondent in this regard, a woman missing

case was registered by the 2nd respondent as Crime

No.240/2021. As part of the investigation of the

said crime, the alleged detenue was traced out and

was produced before the jurisdictional Magistrate on

12.6.2021. As she expressed her desire to go along

with the petitioner, she was released in the company

of the petitioner by the learned Magistrate. The

petitioner further submits that, later the 3rd

respondent conveyed that he is ready to conduct the

marriage of the alleged detenue with the petitioner,

and on that condition, the 3rd respondent had taken

the alleged detenue and child along with him.

However, the 3rd respondent retracted from the said

promise and put the alleged detenue under illegal

detention. This writ petition is filed by the

petitioner in such circumstances.

3. When the matter came up for admission on

26.6.2021, we passed an order directing the 2nd

respondent to get a statement of the alleged detenue

through a woman police officer without the presence

of her parents or any other family members. In

compliance of the said order, the 2nd respondent

placed a statement of the alleged detenue on record.

From the said statement, it is discernible that she

is acknowledging the relationship with the

petitioner and she wants to pursue the same. It is

also stated by her that, her parents have agreed to

conduct the marriage between her and the petitioner,

after dissolving the first marriage of the detenue

by following legal formalities in this regard.

4. In such circumstances, in order to ensure

that she is not in any illegal detention, as per

order dated 7.7.2021, the 3rd respondent was directed

to produce his daughter before the Secretary,

District Legal Services Authority, Palakkad so as to

enable this Court to have an interaction with the

alleged detenue through video conferencing. In

compliance of the said direction, the detenue was

produced by the 3rd respondent before the District

Legal Services Authority, Palakkad today. We had an

interaction with the alleged detenue and also the 3rd

respondent. During the course of interaction, the

alleged detenue asserted that she wants to go along

with the petitioner. When we inquired as to the

custody of the child, she stated that she intends to

take the child along with her. When we interacted

with the father of the alleged detenue (3rd

respondent), he stated that, he is prepared to

conduct the marriage of the detenue with the

petitioner, once the legal formalities relating to

the dissolution of her existing marriage with her

present husband is completed. He also pointed out

that the petitioner herein is also a married person

and certain matrimonial disputes are pending in

respect of the said relationship as well.

5. In such circumstances, we passed over the

matter for some time, so as to give some more time

to the detenue to introspect regarding her decision.

We also permitted the 3rd respondent and other family

members of the alleged detenue to have interaction

with her to enable her to take a proper decision.

After two hours, the matter was taken up again and

we interacted with the alleged detenue. Even at that

point of time, she took an adamant stand to go along

with the petitioner. We notice that she is under no

compulsion from any person and she took the decision

consciously, for which she is capable of. We also

verified from the Secretary, District Legal Services

Authority, Palakkad who informed us that the alleged

detenue is clear in her mind and not compelled or

coerced. With regard to the custody of the child, it

is brought to our notice that, the child is a

breastfed child. In such circumstances, we are not

making any observations with respect to her decision

and we allow her to take the child along with her,

by making it clear that, the observations and

findings in this judgment, shall be without

prejudice to the rights and remedies of the husband

of the alleged detenue.

As we are convinced that, she has taken a

conscious decision to go along with the petitioner,

on her free will, we allow the petitioner to do so.

This Writ Petition is disposed of with the above

observations.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk

APPENDIX OF WP(CRL.) 160/2021

PETITIONER ANNEXURE

Exhibit P1 TRUE COPY OF THE F.I.R IN CRIME NO.240/2021 OF THE CHERPULASSERY POLICE STATION DATED 12.6.2021

//TRUE COPY//

SD/-

P.S. TO JUDGE