Kerala High Court
Afsal Muhammed vs State Of Kerala on 23 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 23RD DAY
OF MARCH 2023 / 2ND CHAITHRA, 1945
WP(CRL.) NO. 239 OF 2023
PETITIONER:
AFSAL MUHAMMED, AGED 29 YEARS
S/O HUSSAIN, ELAPPUNKAL HOUSE, CHETHIPUZHA, VEROOR P.O,
CHANGANASSERRY, KOTTAYAM DISTRICT, PIN - 686104.
BY ADVS.
SWAPNA VIJAYAN
K.V.ANIL KUMAR
RADHIKA S.ANIL
RESPONDENTS:
1 STATE OF KERALA, DEPARTMENT OF HOME AFFAIRS, REPRESENTED BY
ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001.
2 THE STATION HOUSE OFFICER, THRIKODITHANAM POLICE STATION,
KOTTAYAM DISTRICT, PIN - 686105.
3 THE STATION HOUSE OFFICER, CHANGANASSERY POLICE STATION,
KOTTAYAM DISTRICT, PIN - 686101.
4 SUNI SAJI, W/O SAJIMON, KANNAMKULAMVEEDU, AMARA,
AMARA P.O,,KOTTAYAM DISTRICT, PIN - 686546.
5 AJITH, KASTHURI PLAZA, FLAT NO.14 NALKAVALA, CHANGANASSERRY
P.O., KOTTAYAM DISTRICT, (MOB: NO. 9656007225), PIN -
686101.
6 SAIBU MATHEW, NEAR GURU MANDIRAM, CHAMBAKULAM BUS STAND,
CHAMBAKULAM,ALAPPUZHA DISTRICT, (MB. NO. 8606066881), PIN -
688505.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
DIRECTOR GENERAL OF PROSECUTION(AG-10)
P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR()
SHRI.SAJJU.S., SENIOR G.P.()
T.SAJI RAPHEL(K/000554/1990)
CHRISTINE MATHEW(K/001006/2017)
OTHER PRESENT:
SRI. SAIGI JACOB PALATTY-SR.GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & C.S. SUDHA, JJ.
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W.P. (Crl) No.239 of 2023
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Dated this the 23rd day of March, 2023
JUDGMENT
Alexander Thomas, J.
The prayers in the afore captioned W.P.(Criminal), are as follows:
"i) To issue a writ of Habeas corpus commanding the respondents 2
to 6 to produce the petitioner's wife Sania Rose Saji, before this
Hon'ble Court, forthwith;
ii) To issue such other writ order or direction which this Hon'ble
Court may deem fit to handover the custody of the petitioner's
wife Sania Rose Saji to the petitioner immediately;
iii) To issue such other writ, order or direction which this Hon'ble
Court may deem fit and proper to secure the ends of justice to the
facts and circumstances of this case and
iv) To dispense with the translation of the documents produced in the
vernacular language."
2. The case set up in the above writ petition (criminal) is to the
effect that the petitioner herein, aged 29 years, is having a love affair
with the alleged detenue (Ms.Sania Rose Saji, aged 18 years, D/o
Sajimon and R-4). Further that, both of them are residing in
Changanassery and that the petitioner is conducting his business there
and that, the alleged detenue is now studying for First year BBA course
in Assumption College, Changanassery. That, they had decided to
conduct their marriage and that, accordingly, their marriage has
been validly solemnised and registered in accordance with the
provisions contained in the Special Marriage Act, as evident from
Ext.P1 statutory marriage certificate dated 03.02.2023, issued by the
Registrar of Marriages, appointed under the Special Marriage Act,
1954. Further that, the petitioner belong to Muslim religion and the
alleged detenue belong to Christian religion and that, they have
decided that their marriage should be solemnised without a change
of religion of either party. That is why they have resorted to getting
their marriage solemnised and registered as per the Special Marriage
Act. Further that, the above relationship and marriage of the
petitioner with the alleged detenue was strongly opposed by the 4 th
respondent (mother of the alleged detenue), R-5 & R-6 (brothers of
R-4) as well as by the husband of R-4 (father of the alleged detenue),
who is now based in Gulf country. That, of late, R-4 to R-6 have
illegally detained and wrongfully confined the alleged detenue and
they did not allow the petitioner (who is the husband of the alleged
detenue), even, to interact with her and that, accordingly he prays for
the issuance of a writ of Habeas Corpus, in this writ proceedings, etc.
3. We had earlier issued notice in this case on 07.03.2023
and had directed the respondent (SHO) to ensure the production of
the alleged detenue before the Secretary, District Legal Services
Authority (DLSA) Kottayam at 9.30 a.m. on 10.03.2023, to enable us
to directly interact with her, etc.
4. Accordingly, we had interacted with the alleged detenue,
through video conferencing session conducted by the Secretary,
DLSA, Kottayam, on 10.03.2023. After hearing both sides, we had
passed a detailed order dated 10.03.2023, in this case, which reads as
follows:-
"Pursuant to the orders passed by this Court on 07.03.2023, the
alleged detenue (Ms.Sania Rose Saji, aged 18 years, daughter of Sajimon
& R-4/wife of the petitioner), has been produced before the Secretary,
District Legal Services Authority (DLSA), Kottayam, who has arranged a
video conferencing, which has enabled us to directly interact with the
alleged detenue.
2. The learned Prosecutor would submit on the basis of
instructions of the competent Police authorities that, based on the First
Information Statement given by the alleged detenue, a crime has now
been registered initially at Koratty Police Station, Thrissur District,
which has now been transferred to the Thrikkodithanam Police Station,
Kottayam District and the re-numbered case is Crime No.391/2023 of
Thrikkodithanam Police Station, in which the petitioner herein has been
arrayed as the sole accused for offences punishable under Secs.376(2)(f),
363 of the IPC read with Sec.4(l), 6 read with Sec.5(l) of the POCSO Act,
on the allegation that the petitioner had sexual intercourse with the
alleged detenue at a time when she had not completed the majority age
of 18 years, etc. Further it is also submitted that the petitioner was
arrested and thereafter, remanded on account of his involvement in the
abovesaid crime.
3. We have interacted with the alleged detenue, who has told us
that she was having a love affair with the petitioner and that they have
voluntarily decided to get married and since they belong to different
religions, they got their marriage solemnized and registered under the
Special Marriage Act on 03.02.2023, as evident from Ext.P-1 Statutory
Marriage Certificate. Further that she is under the wrongful confinement
in her parental home, where her mother is now residing and that, her
parents are not allowing her to live with the petitioner, who is her
husband. Further that she does not want to reside in her parental home
and wants to live with the petitioner. We specifically queried to her, as to
whether she had voluntarily decided to marry the petitioner knowing
fully the consequences, etc., and she has told us in clear terms that, her
decision was voluntary and that, she wants to live with the petitioner,
who is her husband.
4. We apprised the alleged detenue that now the petitioner is
under judicial remand and therefore, we queried as to whether she is
willing, for the time being, to live in the Ladies' Hostel attached to the
Assumption College, Changanassery, where she is now studying for first
year BBA course. The alleged detenue told us that she is willing for the
said course of action. We also interacted with R-4 (mother of the alleged
detenue) and she told us that she and her husband (father of the alleged
detenue) have not in any manner illegally detained the alleged detenue
and they had only guided her, on account of their parental responsibility,
etc.
5. We do not now want to get into the details of the crime
registered against the petitioner. We also interacted with the R-2 (SHO),
who has assured that he will give instructions regarding the above crime
to the Prosecutor, as to the details of the lodging of the FIS, the
registration of the initial FIR and the transfer of the FIR to the present
Police Station and also the details of the Police investigation so far
conducted by way of recording of Sec.161 statements as well as the
Sec.164 statement, etc.
6. The learned counsel for the petitioner, on the basis of
instructions, would submit that the petitioner has also no objections to
the abovesaid course of action suggested by the Court. Accordingly, it is
ordered that the Secretary, DLSA, Kottayam as well as the respondent
(SHO) will ensure that the alleged detenue secures admission in the
Ladies' Hostel attached to the Assumption College, Changanassery,
where the alleged detenue is studying for first year BBA.
7. Further we also queried to the alleged detenue whether she is
interested to secure counselling by a clinical psychologist/psychologist.
To this, the alleged detenue said that she is willing for that. Accordingly
it is ordered that the Secretary, DLSA, will ensure that the alleged
detenue is given counselling by a clinical psychologist/psychologist
preferably at Changanassery, during the next few days. The clinical
psychologist/ psychologist will ensure that the report of the counselling
process shall be submitted to the Secretary DLSA, who in turn shall make
it available only for the perusal of this Court. During our interaction, the
alleged detenue told us in clear terms that she had given the statement/
information to the Police not on her own will.
8. On being queried, the learned Prosecutor has submitted that he
has just now received written instructions dated 10.3.2023 of R-2 (SHO),
wherein it has been inter alia stated that although the case is registered,
Sania (alleged detenue) was not willing to file a complaint and she has
done it not of her own will.
List the case at 10.15 AM on 23.03.2023.
Handover to both sides."
5. Today also we have interacted with the alleged detenue,
R-4 (mother of the alleged detenue) as well as the petitioner through
video conferencing mode. We have also heard Sri.K.V. Anil Kumar,
learned Advocate, instructed by Smt.Swapna Vijayan, learned
counsel appearing for the petitioner as well as Sri.Saigi Jacob Palatty,
learned Public Prosecutor, appearing for official respondents 1 to 3
and Sri.T. Saji Raphel, learned counsel appearing for contesting
respondents 4 to 6.
6. We are now told by the learned Public Prosecutor as well
as the learned counsel appearing for the petitioner that,
subsequently, this Court has granted regular bail to the petitioner,
consequent to his remand in the afore referred PoCSO case and he
has, thus, secured bail as per order dated 15.03.2023 in B.A.
No.2221/2023 and that, he is now released on bail.
7. Since the petitioner was under remand, the alleged
detenue has been residing in her College hostel. She has also
undergone counselling process. We have also gone through the
report of the Counsellor, wherein it has been, inter-alia reported
that, she is a normal adult person, etc. Even in today's interaction,
the alleged detenue has told us that she wants to live with the
petitioner, who is her husband and that she also intends to continue
her BBA studies in the local College and that this Court may issue
directions in that regard. In the interaction, the petitioner told us
that, he is running a Tea Business in Changanassery and other
nearby areas and that the petitioner and the alleged detenue has
decided to live with the petitioner in his house near Changanassery
and that steps should be taken to ensure that the alleged detenue
regularly attends her college education, etc. We have also interacted
with R-4, who is the mother of the alleged detenue.
8. There is no dispute that the marriage of the petitioner
and the alleged detenue has been duly solemnised and registered as
per the Special Marriage Act, as per Ext.P1, on 03.02.2023.
9. The date of birth of the alleged detenue is 18.01.2004 and
that, she has completed the majority age of 18 years on 18.01.2022.
She is now studying for first year BBA course in the local college and
she is a young lady, who has completed the majority age and she
appears to be fully capable of taking of her voluntary and
independent decisions.
10. In the light of these aspects, it is clear that, the alleged
detenue, who is a young lady should be enabled to carry out her
wishes.
11. Accordingly it is ordered that the alleged detenue is
set at liberty in order to carry out her wishes, as above. No other
orders and directions are called for.
With these observations and directions, the above writ petition
(criminal) will stand disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
C.S. SUDHA,
JUDGE
Skk//2303
APPENDIX OF WP(CRL.) 239/2023
PETITIONER'S EXHIBITS:-
EXHIBIT-P1 A TRUE COPY OF THE MARRIAGE CERTIFICATE
OF THE PETITIONER
EXHIBIT-P2 A TRUE COPY OF THE COMPLAINT WITH
RECEIPT SUBMITTED BEFORE THE 3RD
RESPONDENT DATED 04.03.2023
RESPONDENTS' EXHIBITS:- NL
