Jatin Jagadish Malaviyah vs State Of Kerala

The prayers in the instant writ petition (criminal), seeking for habeas corpus are as follows:-

“(i) Issue a writ of Habeous Corpus, directing the first and second respondent to produce the body of Pushti Jatin Malaviyah, aged 20 years, D/o Jatin Jagadish Malaviyah, 6/1962, Nalpathumuri, Chakkamadom, Mattancherry, Kochi – 682002 before this Honourable Court and to secure her freedom from illegal detention and confinement.

(ii) Grant such other reliefs, which are just and necessary7, in the interest of justice.”

Heard Sri.C.R. Sanish, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Public Prosecutor, appearing for official respondents 1, 2 & 4, and Sri.C.Dheeraj Rajan, learned counsel appearing for contesting respondent No.3. Notices to respondents 5 & 6 have been served through the 4th respondent.

The case set up in the above writ petition (criminal) is to the effect that the petitioner herein, aged 50 years, who is the father of the alleged detenue (Ms.Pushti Jatin Malviya, aged 20 years), who is studying for 3rd year B.Com., at Sri. Seth Ram Bhadur Singh Gujarati College, Mattancherry, Kochi, and that she is the only child of the petitioner.

That, contesting respondent No.3 happens to be the cousin of the petitioner’s neighbour and that he is a native of Haryana and that earlier he had stayed nearby to the residence of the petitioner for about a few months during COVID period in 2019-2020 and that he used to tease the petitioner’s daughter, and that became unbearable for her. Further that, after he had gone away from the neighbourhood of the petitioner, later, from 23.12.2022, the alleged detenue was missing and that, it was learnt that she has been taken away by the 3rd respondent to his native place at Haryana, etc.

We have issued notice in this case on 05.01.2022 and had also issued notices not only to the official respondents 1, 2 & 4 and the contesting respondent No.3, but also to respondents 5 & 6, who are the State Police Chief, Haryana, and the SHO, having territorial jurisdiction of the residential area of the 3rd respondent in Haryana.

Pursuant to our directions, the official respondents have produced the alleged detenue before us on 09.01.2023. We have interacted with the alleged detenue and had recorded her version and based on that we have passed an order, dated 09.01.2023, in this case, which reads as follows:-

“Today, the alleged detenue (daughter of the petitioner-Ms.Pushti Jatin Malviya, aged 20 years) has been produced before us. Initially we have interacted with the petitioner and as per her request, we permitted the alleged detenue to interact with her parents, who are present before this Court. Later, we have again interacted with the alleged detenue. On both the occasions, the alleged detenue has told us in clear and categorical terms that she wants to reside with her parents at Mattanchery and that she wants to continue her studies. The 3rd respondent has been duly served but he has not engaged any counsel. The 3rd respondent and his relatives are present before us. The 3rd respondent has told us that the alleged detenue had voluntarily married him in Haryana and a marriage certificate has been issued by the Arya Samaj authorities, etc. On being queried, the alleged detenue has told us that she was not fully aware of the consequences and that she had agreed to undergo some marriage function out of fear and without knowing the full consequences.

We need not decide on the issue as to whether the marriage has been conducted and also as to whether the marriage has been solemnised validly in accordance with law. That may be a issue to be decided in other proceedings. However, the 3rd respondent and his relatives told us that they have come from Haryana only yesterday and they may be granted short time to engage a counsel of their choice. The above request of the 3rd respondent is reasonable. Accordingly the case is adjourned by 10 days to engage a counsel of his choice.

As decided by the alleged detenue, she is permitted to reside with her parents at Mattanchery. The alleged detenue and her parents may be present before this Court on the next posting day (24.01.2023).

List the case on 24.01.2023.”

On 09.01.2023, the 3rd respondent sought for an adjournment to enable him to engage a counsel of his choice. As ordered in the order dated 09.01.2023, we have, then, adjourned the case and had permitted the alleged detenue to go with the petitioner to reside in her parental home, as decided by her. She had then told us in clear and categorical terms that she does not want to go and live with the 3rd respondent and that she wants to reside with the petitioner in her parental home and that she wants to continue her studies.

Further that, she was not fully aware of the consequences when she was made to undergo some function claiming to be one relating to marriage with the 3rd respondent, etc.

Today also, we have interacted with the alleged detenue. She has told us in clear and categorical terms that she does not want to live with the 3rd respondent and that she wants to reside with her parents and to continue her studies.

The learned counsel appearing for the 3rd respondent has submitted that the 3rd respondent has not, in any manner, abducted or kidnapped the alleged detenue and that she has voluntarily gone with the 3rd respondent to Haryana and that a marriage function was also conducted and a Registration Certificate in that regard has been issued by the Arya Samaj authorities, etc.

We need not get into any issues other than to examine as to whether the alleged detenue wants to live with the 3rd respondent or whether she wants to reside with her parents. The alleged detenue, who is aged 20 years, has told us in clear terms that she wants to reside with her parents and to complete her education, more particularly, her B.Com. course.

As already indicated in order dated 09.01.2023, we are not deciding on the issue as to the validity or otherwise of the marriage said to have been solemnised, as pleaded by the 3rd respondent. Those are all issues which are now alien for our consideration and therefore we need not decide on any such issues.

In the light of the categorical stand of the alleged detenue, she is set at liberty to reside with her parents, as decided by her. No other orders and directions are called for.

With these observations and directions, the above writ petition (criminal) will stand disposed of.