Sr. Mercy Francis and Others vs The District Police Chief, Kottayam and Others

C.K. Abdul Rehim, J.—1. The petitioners herein are the siblings of one Smt.Agnes Francis (herein after referred to as the ''alleged detenue''). The respondents 3 and 4 are also siblings of the petitioners and the alleged detenue. The 5th respondent is the wife of the 4th respondent. The petitioners are approaching this Court seeking a writ of Habeas Corpus for directing production of the alleged detenue, based on an allegation that she is being illegally detained by respondents 3 to 5.

It is stated in the writ petition that the 1st petitioner is a nun engaged in missionary services in Israel for the last four years. Before that she was in Egypt for about 20 years. It is mentioned that there exists disputes among siblings with respect to property owned by their deceased father Sri Devassia Francis, who passed away in the year 2001. Their mother also expired in the year 2005. The relationship of the petitioners with the respondents 3 to 5 is not cordial. It is alleged that the respondents 3 to 5 are acting in a cruel manner towards the alleged detenue. Allegations are also raised that the respondents 3 to 5 have influenced the deceased father, who was suffering from mental illness, for getting his properties assigned in favour of them. It is mentioned that the deceased father had obtained an order of police protection against the petitioners, from this Court. It is also mentioned that, during the year 2001, the alleged detenue had ran out from custody of respondents 3 to 5 on account of the cruelty inflicted by them, seeking asylum with the neighbours and with Vicars of the church. But, under the influence of the 3rd respondent, she was taken back and the 3rd respondent took her to Delhi by force. When the 1st petitioner came on leave in the year 2004, the respondents 3 to 5 were not prepared to disclose any information about the alleged detenue. On enquiry it was found that the alleged detenue is kept in a mental asylum at Moolamattom. The 1st petitioner had rescued her from the said hospital. But, after the 1st petitioner returned, the 3rd respondent again took the alleged detenue by force and since the year 2006 onwards there is no communication between the petitioners and the alleged detenue. It is mentioned that, the petitioners does not know whereabouts of the alleged detenue since 2006 onwards. The alleged detenue had written a letter to the 2nd petitioner on 22.1.2006. According to the petitioners, whenever they attempt to contact the alleged detenue, the 3rd respondent is denying the same. The petitioners have raised an apprehension that respondents 3 to 5 have detained the alleged detenue in some mental asylum. Even though petitioners 1 and 2 have preferred a complaint before the District Police Chief, Kottayam, no action was taken, is the allegation. Therefore, the petitioners are approaching this Court.

When the case came up for admission, this Court directed the learned Government Pleader to get instructions from respondents 1 and 2 with respect to action if any, taken on the basis of complaint submitted before the District Police Chief. It was reported that, based on the said complaint a case was registered at Ponkunnam Police Station as Crime No. 151/2016 under Section 57 of the Kerala Police Act. According to the 2nd respondent, the enquiry conducted had revealed that, the alleged detenue is staying with the 3rd respondent at Delhi. Since the said fact was seriously disputed by the petitioners, this Court had issued notice to respondents 3 to 5.

Today, when the case is taken up for consideration, the respondents 3 to 5 entered appearance through counsel. The alleged detenue is produced before this Court. We interacted with the alleged detenue. She said that she is aged 56 years. According to her she is residing with the 3rd respondent. Both of them are spinsters. It is said that, during the time when the parents were alive she was staying in the ancestral home. At that time itself the 2nd petitioner was creating problem demanding share in the property. According to her, after death of both the parents she could not live in the ancestral house, because of the problems created by the 2nd petitioner. Therefore the 3rd respondent had taken her into care and protection and she was taken to Delhi, where the 3rd respondent was working in a school as Administrator. The alleged detenue said that the ancestral property was assigned by her deceased father in favour of herself and the 3rd respondent. But the 2nd petitioner is making attempts to take over possession of the said property. She said that she is now in Kerala since the 3rd respondent had retired from her job in Delhi. According to her, the 2nd petitioner is not permitting herself and the 3rd respondent to reside in the ancestral property assigned to them by the deceased father. Therefore they are now living at the house of some of the friends of the 3rd respondent. She said that she doesn''t know the exact address and place where she is staying along with the 3rd respondent. According to her, if the address is revealed the 2nd petitioner will create trouble for peaceful residence of herself and the 3rd respondent. She had denied the allegations of illegal confinement.

Learned counsel appearing for respondents 3 to 5 submitted that, even at the time when the parents were alive, they along with the alleged detenue and the 5th petitioner have filed a writ petition before this court as O.P. No. 12650/1995, seeking police protection against the 2nd petitioner and some others. In the said writ petition this Court had granted police protection to the life, liberty and property of the petitioners therein. A copy of the judgment in the said case is produced for our perusal. It is also mentioned that in the year 2015, another writ petition was filed by the 3rd respondent along with the alleged detenue, against the 2nd petitioner, seeking police protection. The ancestral property with respect to which there exists dispute, is the subject matter of the said writ petition. Complaint was that the 2nd petitioner is not permitting the alleged detenue and the 3rd respondent from residing in the said property. This court noticed the contention of the 2nd petitioner that he is residing in the said building and that he will not object the alleged detenue and the 3rd respondent from residing in the said building. Having found that the dispute is basically of civil nature, this Court observed that the remedy available to the parties is to approach the civil court in order to establish their claims. However, this Court observed that, if there is any threat or objection from the side of the 2nd petitioner with respect to residence of the alleged detenue and the 3rd respondent in the house, it is open to them to file complaint before the police authorities, who were directed to look into the same and to take appropriate action. A copy of the judgment in the above said writ petition, W.P.(C) No. 527/2015, was also produced for our perusal.

Learned counsel for the petitioners submitted that, there is a suit instituted by the 2nd petitioner seeking partition of the ancestral property and it is pending disposal before the civil court. He reiterated the contention that the alleged detenue is purposefully concealed from access of the petitioners, by respondents 3 to 5. He made a request to this Court to permit the 1st petitioner to interact with the alleged detenue. Accordingly, we permitted the alleged detenue to interact with the 1st petitioner for about one hour. Thereafter when the case was taken up for further consideration we again interacted with the alleged detenue. She expressed her strong desire to go along with the 3rd respondent to live with her.

From the circumstances enumerated as above, it is evident that there exists dispute between the parties with respect to right over immovable property. It is clearly evident that the alleged detenue is residing along with the 3rd respondent on her own wish and will. There is no basis for the allegation of illegal detention. Therefore, there exists no circumstances warranting interference of this Court to issue any writ of Habeas Corpus. Consequently, the writ petition fails and the same is hereby dismissed. The alleged detenue is set at liberty to go along with the 3rd respondent, as desired by her.