Kerala High Court

Shameer H vs State Of Kerala on 7 October, 2022

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                      &
                 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
         FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                        WP(CRL.) NO. 850 OF 2022
PETITIONER:
              SHAMEER H
              AGED 34 YEARS
              S/O REHUMA BEEVI, ELUVILA PUTHENVEEDU, KILLY, KATTAKKADA,
              THIRUVANANTHAPURAM - 695572

              BY ADV R.DIVAKARAN


RESPONDENTS:
     1      STATE OF KERALA
            REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695001.

     2        SUPERINTENDENT OF POLICE,
              THIRUVANANTHAPURAM RURAL, VIKAS BHAVAN, PMG,
              THIRUVANANTHAPURAM - 695035

     3        STATION HOUSE OFFICER,
              NEYYATINKARA POLICE STATION, NEYYATINKARA P.O.,
              THIRUVANANTHAPURAM - 695121

     4        JANARDANAN,
              MELETHIL VEEDU, CONVENT ROAD, NEYYATINKARA- 685121

     5        ARJUN SANKAR,
              S/O JANANDANAN, MELETHIL VEEDU, CONVENT ROAD,
              NEYYATINKARA- 685121

     6        ANJANA SANKAR,
              AGED 26 YEARS, D/O JANANDANAN, MELETHIL VEEDU, CONVENT
              ROAD, NEYYATINKARA- 685121

              BY ADVS.
              GOVERNMENT PLEADER
              S. KRISHNA
              S.KRISHNA
              GOVIND R.(K/566/2013)

              SRI. ALEX M. THOMBRA-SR.GP


     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(Crl.) No.850 of 2022
                                            1




       ALEXANDER THOMAS & SOPHY THOMAS, JJ.
            =================================
                        W.P(Crl.) No.850 of 2022
            =================================
                      Dated this the 07th day of October, 2022

                                   JUDGMENT

Alexander Thomas, J.

The prayers in the instant Writ Petition (Crl.), seeking for the plea

of Habeas Corpus, are as follows :

"(i) Issue a writ of habeas corpus directing the respondents 2 and 3 or other concerned respondents to produce Anjana Sankar before this Honourable Court and to conduct enquiry and find out Anjana Sankar from the hands of 4 th and 5th respondents and persons under them, within a time limit, in the interest of justice.

(ii) Issue appropriate writ, directing the 2nd respondent to take up Exhibit P2 representation and to direct 2nd and 3rd respondents or other concerned respondents or produce the detenue, Anjana Sankar, from the hands of 4 th and 5th respondents and persons under them, within a time limit, in the interest of justice.

(iii) Grant any other appropriate relief, which is prayed by the petitioner during the course of hearing which this Honourable Court may deem fit and proper in the facts and circumstances of the case.

(iv) To dispense with the translation of vernacular documents."

2. Heard Sri.R.Divakaran, learned counsel appearing for the

petitioner, Sri.Alex M.Thombra, learned Public Prosecutor appearing for

official respondents 1 to 3 and Smt.S.Krishna, learned Advocate

appearing for R-4 & R-5. Formal notice to R-6 (alleged detenue), who is W.P(Crl.) No.850 of 2022

personally present before this Court, will stand dispensed with.

3. The basic plea put in this writ proceedings and in the

documents produced thereto, is to the effect that the petitioner, aged

34 years, is having a love affair with R-6 herein (alleged detenue),

Ms.Anjana Sankar, aged 26 years, for the last six years. Further, it

appears that the petitioner belongs to Muslim religion and the alleged

detenue belongs to Hindu religion. It is alleged by the petitioner that,

R-6 (alleged detenue) is under the illegal detention of R-4 & R-5 (father

& brother respectively of R-6) and that she is being detained against her

wishes, in order to prevent the marriage between the petitioner and the

alleged detenue. Further that, the alleged detenue has secured Doctoral

Degree in Pharmacology and was earlier working as a teacher in an

unaided college and that she is capable of taking her own decisions, etc.

4. After issuance of notice, we have directed that the alleged

detenue shall be produced before the Secretary, DLSA,

Thiruvananthapuram, to enable this Court to directly interact with the

alleged detenue through video conferencing. Accordingly, the District

Legal Service Authority had arranged video conferencing on the

previous day (26.09.2022).

W.P(Crl.) No.850 of 2022

5. On interaction, she had apprised us on that day that she is

being detained by R-4 & R-5 (her father & brother), against her wishes

and that, she wants to live with the petitioner and that they are having a

love affair, etc.

6. After hearing both sides, it came to our notice that the

petitioner has suppressed vital and crucial material facts before this

Court, inasmuch as it turns out that the petitioner is already married to

another woman, since 19.01.2017 and the said lady has initiated divorce

proceedings before the Family Court, Thiruvananthapuram as O.P

No.2589/2021, in which the petitioner herein has been arrayed as the

respondent therein, with the plea for dissolution of the marriage. The

abovesaid suppression of material facts by the petitioner, is nothing but,

fraud committed by him on this Court. Accordingly, after hearing both

sides, we had passed a detailed order on 26.09.2022, which reads as

follows :

"From the facts and circumstances of the case, it appears that the petitioner has suppressed highly crucial and relevant factual aspects in the pleadings of this Writ Petition (Crl)., instituted for seeking issuance of the high prerogative writ of habeas corpus.

2. The case set up by the petitioner is to the effect that he is having a love affair with R-6 (alleged detenue) Ms.Anjana Sankar, aged 26 years, daughter of R-4 and sister of R-5 and that the alleged detenue is being illegally detained by R-4 and R-5 even though she wants to live with the petitioner. Now, it is revealed to us that the petitioner is in fact married and he would now disclose W.P(Crl.) No.850 of 2022

to us, through the learned counsel, that his wife has filed a divorce petition, which is pending as O.P.No.2589/2021 before the Family Court, Thiruvananthapuram. Further, it is also now disclosed to us by the learned counsel for the petitioner that the petitioner belongs to Muslim religion and that his wife (who has filed the divorce petition) is a Hindu and that they had solemnized their marriage as per the Special Marriage Act. The petitioner would now state before us that he has already filed No Objection Memo in the divorce petition filed by his wife and he expects that the formal decree for dissolution of the marriage will be finalised by the Family Court, Thiruvananthapuram shortly and thereafter, the petitioner and R-6 intend to solemnize their marriage, in accordance with the provisions contained in the Special Marriage Act.

3. We are really agonized that the petitioner has suppressed these crucial aspects regarding his marital status, before this Court. We had interacted with R-6 (alleged detenue) through video conferencing, arranged by the Secretary, DLSA, Thiruvananthapuram and she has reiterated that she wants to live with the petitioner and that, R-4 (her father) & R-5 (her brother) are detaining her in their house against her wishes. We are also told that the alleged detenue has secured a Doctorate Degree in Pharmacology and was teaching in an unaided college.

4. Before we proceed to consider the petition on merits, it is ordered that the petitioner will file an affidavit, explaining the reasons as to why, he has suppressed these crucial aspects and also giving the full details of his marital status, divorce proceedings, etc. The learned counsel for the petitioner would submit that the petitioner would express his unconditional apology in the said affidavit and that he would pay any exemplary cost that may be ordered by this Court. Affidavit in that regard shall be duly filed by the petitioner within one week.

5. Ordinarily, in a case of this nature, where the petitioner has suppressed vital and relevant factual aspects, the court will have to dismiss the petition filed by the petitioner, in having invoked the equitable jurisdiction with unclean hands by suppression of material facts. However, in view of the present state of affairs, we feel that the petition could be entertained, but only on the petitioner paying exemplary cost. Accordingly, it is ordered that even though the petitioner deserves heavy cost, taking a lenient view, cost amount is fixed at Rs. 25,000/- (Rupees twenty five thousand). The petitioner shall pay the cost amount to the Mediation Centre, attached to this Court within one week and shall produce the receipt evidencing payment of the said cost amount. If the abovesaid cost amount is not paid within the said time limit, W.P(Crl.) No.850 of 2022

then this petition will stand dismissed.

5. The Family Court, Thiruvananthapuram, will immediately furnish a report to the Registry of this Court, regarding the details of O.P.No. 2589/2021 said to have been filed by the petitioner's wife (Aswathy) and a copy of the said petition with all the annexures thereto may also be made available by e- mail attachment, fax and speed post, within one week.

The learned counsel for the petitioner submits that this case may be adjourned to be taken on 7.10.2022. The Secretary, DLSA, Thiruvananthapuram, will arrange further session of video conferencing to enable this Court to have interaction with the alleged detenue (R-6 - Ms.Anjana Sankar) at 10.15 a.m. On 7.10.2022.

List the case at 10.15 a.m. on 7.10.2022."

7. Today, Sri.R.Divakaran, learned counsel appearing for the

petitioner, submits that the petitioner has filed affidavit dated

06.10.2022, expressing his unconditional apologies for not disclosing

the abovesaid factual aspects and that the petitioner has already paid the

cost of Rs.25,000/- (Rupees Twenty Five Thousand only) to the

Mediation Centre, attached to this Court on 01.10.2022 and receipt

thereof has also been produced along with the memo dated 06.10.2022.

We have perused through the abovesaid affidavit dated 06.10.2022, filed

by the petitioner, as well as the memo dated 06.10.2022 filed by the

learned counsel for the petitioner, producing the receipt regarding the

payment of cost amount of Rs.25,000/-. The abovesaid affidavit dated

06.10.2022, filed by the petitioner, reads as follows : W.P(Crl.) No.850 of 2022

"I, Shameer H, aged 34 years, S/O Rehuma Beevi, Elluvila Puthenveedu, Killy, Kattakkada, Thiruvananthapuram - 695572 do hereby solemnly affirm and state as follows:-

1. I am the petitioner in the above Writ Petition. I am conversant with the facts of the case. I am competent to swearing this affidavit

2. The above Writ Petition (Criminal) has been filed by me seeking to issue a writ of habeas corpus directing the respondents 2 and 3 or other concerned respondents to produce 'Anjana Sankar' before this Honourable Court from the illegal custody of her parents.

3. It is respectfully submitted that in the writ petition, I am not pleaded my earlier marriage with one 'Aswathy M'. I married the said Aswathy on 19.01.2017 as per Special marriage Act before the Marriage Officer, Kattakkada. In the wedlock, we have a girl child aged five years and the child is now in the custody of the said Aswathy. After the marriage, there are several disputes with the said Aswathy and I am residing separately from 26.12.2019 and thereafter, the said Aswathy filed a divorce petition No.2589/2021 before the Family Court, Thiruvananthapuram. I filed my written statement and also filed Memo before the Family Court, Thiruvananthapuram on 16.09.2022 that I have no objection to dissolve the marriage with the said Aswathy. The above said factgs are not aware my Counsel at the time of preparing the writ petition. So these facts are not pleaded in the Writ Petition.

4. There is no willful negligence or latches on my part in the above subject matter. So I filing my affidavit expressing my sincere unconditional apologizes. I am already paid the cost ordered by this Honourable Court on 01.10.2022 and produced the receipt. So this Honourable Court may most respectfully pleased to accept the affidavit and allow me to continue the above Writ Petition."

8. Today also, we have interacted with the alleged detenue and

she has reiterated, in clear and uncertain terms, that she is being

detained by R-4 & R-5 and that she wants to live with the petitioner. We W.P(Crl.) No.850 of 2022

have entertained this writ plea, after payment of cost, only taking into

account the interest of the alleged detenue.

9. After hearing both sides, we note that the alleged detenue is

aged 26 years and she says that she has a Doctoral Degree in

Pharmacology and that she was earlier working as a Teacher in an

unaided college, etc. Since she is a grown up adult, who is capable of

taking her own independent decisions, we have to respect her wishes.

Accordingly, it is ordered that the alleged detenue, Ms.Anjana Sankar,

aged 26 years (daughter of R-4), is set at liberty.