T.D. Suresh vs State of Kerala and Others

R. Basant, J.—The petitioner has come to this Court with this application for issue of a writ of habeas corpus to search for, trace and produce his daughter Dhanu Suresh aged 19 years. He apprehended that his daughter Dhanu Suresh is under the illegal detention and confinement of the 5th respondent. The 5th respondent faces indictment in a prosecution for the offence of alleged rape against the alleged detenue Dhanu Suresh. The said incident, it is submitted at the Bar, occurred at a time when she was under the age of consent. That prosecution is pending and the alleged detenue has already been examined as a witness in S.C. No. 308/07 pending before the Sessions Court, Kottayam. It is after tendering evidence in that case that the alleged detenue was found missing. According to the petitioner, his daughter was being illegally detained and confined by the 5th respondent.

This petition was filed on 10/09/2009. It was admitted on the same day. Notice was ordered to the respondents and the case was posted to this date. Today when the case is called, the petitioner and his wife are present along with their counsel. The 5th respondent is present along with his counsel. Along with the 5th respondent, the alleged detenue has also come to court.

As the alleged detenue comes from the custody of the 5th respondent, we permitted the alleged detenue to remain in the chamber without being influenced by the 5th respondent. The parents of the alleged detenue were permitted to interact with the alleged detenue. Later, we interacted with the alleged detenue in the chamber.

The alleged detenue Dhanu Suresh, aged 19 years (date of birth 24/02/1990), asserts that she is not under illegal confinement or detention by anyone. According to her, she is a student of the B.Sc Nursing course (3rd year). She was in love with the 5th respondent from her early childhood. That relationship was not approved by her parents; but the alleged detenue and the 5th respondent continued such relationship. According to the alleged detenue, vexatious legal proceedings have been initiated against the 5th respondent to dissuade him from continuing the relationship with the alleged detenue. The alleged detenue asserts that she had willingly and voluntarily married the 5th respondent in accordance with law and that she, as the legally married wife of the 5th respondent, wants to go along with him.

The 5th respondent has filed a counter affidavit. Along with such counter affidavit, he has produced the copy of the relevant marriage register of the S.N.D.P Sakha Yogam, Kumarakam South which shows that the marriage between the alleged detenue and the 5th respondent had taken place on 20/08/2009. He has also produced certificate to show that such marriage which took place on 24/08/2009 has been duly registered with the Kumarakam Grama Panchayath.

The petitioner and his wife are unable to accept the marriage between the 5th respondent and the alleged detenue. They submit that they have valid reasons to take up that stand.

Though we attempted to persuade the parties to come to a harmonious settlement, we have not been successful in doing the same. We are satisfied, in these circumstances, that appropriate orders on merits can be passed.

The alleged detenue submits that her clothes, books, certificates etc. are available with her parents. The parents of the alleged detenue accept that submission and state that whatever personal articles belonging to the alleged detenue are available in their house, shall be handed over to the alleged detenue through the Sub Inspector of police, Kumarakam within a period of seven days. The petitioner and his wife further submit that though they are not able to accept the marriage between the alleged detenue and the 5th respondent, they shall not cause any hindrance and shall not indulge in acts of vexation or harassment against the alleged detenue and the 5th respondent. They also submit that the alleged detenue may be requested to complete her professional course so that she will be able to stand on her own feet later in life. They further request that as there is some doubt/confusion about the validity of the marriage already performed, the alleged detenue and the 5th respondent may be requested to get their marriage solemnised/registered under the Special Marriage Act.

The alleged detenue and the 5th respondent readily accept that they shall get their marriage solemnised/registered under the provisions of the Special Marriage Act though they do not accept the assertion that the marriage already performed is legally not adequate or sufficient. They pray that time may be granted to them to produce the marriage certificate.

We are, in these circumstances, satisfied that the alleged detenue is not under the illegal confinement or detention of the 5th respondent. She is an adult major woman, she having already crossed the age of 19 years. In these circumstances, we are satisfied that no further directions are necessary in this writ petition. However, to ensure that the agreement to hand over personal belongings of the alleged detenue shall be over to the alleged detenue by the petitioner and his wife within a period of seven days through the Sub Inspector of Police, Kumarakam and to ensure that the alleged detenue and the 5th respondent get married in accordance with the provisions of the Special Marriage Act as desired by the petitioner and his wife, we are satisfied that the case can be posted to another date for compliance to these stipulations.

In the result,

a) This writ petition is dismissed.

b) The alleged detenue Dhanu Suresh is permitted to return from court, as desired by her, along with the 5th respondent, with whom she has come to court today and with whom she is shown to have entered matrimony.

c) It is directed that the case shall be called again on 09/11/2009. On that date, the parties shall appear. The alleged detenue and the 5th respondent shall appear and produce the certificate of marriage issued under the Special Marriage Act with a copy to be furnished to the petitioner herein. On that day, parties shall report to the court that the personal belongings of the alleged detenue have all been handed over, as already agreed.

The 5th respondent accepts and undertakes that the alleged detenue shall complete her B.Sc Nursing course. That submission of the 5th respondent is also taken note of and recorded.