8. In this case, of course, the learned counsel for the petitioners had a contention that the detenue was abducted by respondents 1 and 2 and a police case is pending. But when she had informed us that she had voluntarily left with the first respondent, we do not think that it is possible for us to assume, atleast in this proceeding that she was illegally detained. True that they were not married, and now that the notice period had already expired, it is open for them to solemnize their marriage whenever they wish. We do not want to express any opinion in regard to the pending criminal case against the 1st respondent and others.
Therefore, when a major girl exercises her fundamental rights under Article 21 of the Constitution of India by choosing her partner, Court cannot resist such expression of opinion. True that the decision is pitted against the wish of the parents, but, when a fundamental right is being exercised by a major girl, the Court will have to enforce the same.
In the High Court of Kerala at Ernakulam
(Before A.M Shaffique and Anu Sivaraman, JJ.)
T.M Shareef v. Abdulla K.B
W.P(Crl) No. 213 of 2017
Decided on July 24, 2017
Citation:2017 SCC OnLine Ker 10186
The Judgment of the Court was delivered by
A.M Shaffique, J.:— This writ of habeas corpus is filed by the father and mother of the detenue. The petitioners have three children and the detenue is the second child. She was born on 25/11/1998 and she is named Nasni. She is studying in the 12thstandard at Little Hearts, North Paravur.
2. Six months back, she complained that the first respondent was bothering her by calling her on the telephone. First petitioner made enquiries and it was noticed that he was a person having criminal antecedents. The first petitioner, who was employed at Sharjah came down and requested the first respondent not to bother his daughter. He went back on 18/5/2017. Later, he learnt that 1st respondent was still bothering her. First petitioner again came back, called upon the first respondent and asked him not to bother his daughter. The first respondent requested the first petitioner that she should be given in marriage to him. Petitioners did not agree for the same. First respondent therefore threatened him with dire consequences. On 24/5/2017, first respondent had come to the petitioners' house and demanded that he should see Nasni. He was denied access by petitioner's son. On the same day, first respondent along with his father had come to the petitioners' residence at 7 P.M along with respondents 3 to 6 and ten others. They had made a demand to give in marriage Nasni to the 1st respondent. Petitioners refused them access inside the house and they tried to break open the door. They also smashed the windows. First petitioner and his son Mohammed Ali were assaulted. People in the locality arrived at the scene and thereafter police help was sought. It is after the police had interfered in the matter that respondents 1 to 6 left the place. He further contends that, on the same day, when petitioners along with their children were proceeding to Mala in their car, the first respondent and his friends followed the petitioners' car, blocked the vehicle at about 11.45 in the night near Peruvaram temple on Mannam-Peruvaram road. After assaulting the persons inside the car, Nasni was taken by respondents 1 and 3 to 6 and others. Immediately, a compliant was lodged before the North Paravur Police station. The first petitioner's statement was taken by the police at abut 12.30 in the noon and a case was registered as Crime No. 1051/17 under Sections 143, 148, 341, 323, 308, 366 and 506(1) and 149 of the Indian Penal Code. Ext.P1 is the copy of the FIR. It is alleging that the detenue Nasni was being illegally held by respondents 1 to 6 that this writ petition has been filed.
3. This Court, by an interim order dated 5/6/2017 directed the police to conduct appropriate investigation and to produce the detenue before this Court. The detenue was produced before this Court on 9/6/2017. We interacted with her. According to her, she had gone with the first respondent voluntarily and she is having a love affair with him. She further stated that she would like to marry the first respondent and they have given notice of intended marriage before the Sub Registrar on 3/6/2017 and the convenient date for solemnization of the marriage is fixed on 5/7/2017. After hearing either parties, we directed the detenue to be housed at S.N.V Sadanam Hostel until further orders and the parents of the detenue alone were permitted to meet the detenue at the hostel. She was directed to be produced on 5/7/2017. On 5/7/2017, an application has been filed as IA No. 10430/2017 by the counsel for petitioners seeking for a psychiatric evaluation of the detenue. The said application was allowed by order dated 5/7/2017. We directed a psychiatric evaluation of the detenue to be done by Dr. C.J John of Medical Trust Hospital, Ernakulam and the police was directed to file a report of the Psychiatrist in a sealed cover. When the case was taken upon 20/7/2017, the report has been produced before this Court. In the report, the Psychiatrist had mentioned that the examination does not reveal any manic disorder or other psychotic disorders. However, taking into account the temperamental problems in childhood and teenage pointed towards her personality disorder, a diagnostic psychometry was conducted by a Clinical Psychologist Miss Mable Davis. In her report, Miss Mable Davis had given her impression of the detenue as under:—
“Psychometry reveals personality disorder characterized by immaturity, impulsivity, rebelliousness, inability to emphathize with others and unstable emotional control.”
4. Learned counsel for the petitioners has filed certain additional documents along with an affidavit of the first petitioner. In the affidavit, it is stated that first respondent is currently an accused in three crimes, Crime No. 411/2016 of the N. Paravur Police Station under Sections 341, 323, 324 and 34 I.P.C Crime No. 255/17 pending before the Aluva West Police Station under Sections 447, 341, 323 354 I.P.C and Crime No. 585/17 of the Aluva West Police Station under Sections 143, 147, 341, 427 read with Section 149 of the Indian Penal Code. That apart, his father is involved in 9 criminal cases which are also narrated in the affidavit. The additional documents pertain to various crimes which have been described in the affidavit. They have also produced documents in Crime No. 1300/2012 of North Paravur Police Station and a statement of a witness by name Sulafa dated 24/7/2012.
5. Learned counsel for the petitioners argued that the detenue was studying abroad for quite some time and she was admitted to a school at North Paravur only later when she had reached 9th standard. She is immature and does not have the capacity to take a decision on her own. The first respondent, whom she intends to marry, is a person having criminal background. He is involved in various criminal cases and is also involved in cases relating to abuse of women, as evident from Exts.P6 and P7. The detenue does not understand the pros and cons of marrying such a person and therefore, this Court should not permit the detenue to remain in the custody of first respondent and others. He also placed reliance upon the judgment of the Division Bench of this Court in Lal Parameswar v. Ullas (2014 (1) KLT 937) and also the judgment in Asokan K.M v. Superintendent of Police [2017 (3) KHC 73 (DB)]. It is contended that the evaluation of the Clinical Psychologist clearly indicates that the detenue is immature. The very decision taken by her to have a marital relationship with a person involved in several crimes itself is an instance of immature decision. The first petitioner being the father and the second petitioner being the mother are very much concerned with the life of their daughter and it is for them to take a decision whether a marital tie with the first respondent would benefit their daughter or not. He argued that parents authority over a major daughter had been upheld by this Court in Lal Parameswar's case (supra). It is argued that the said judgment emphasizes on the parental authority being exercised for the ultimate benefit of the ward, though it is disliked by the ward, who may resist it, and even turn hostile to the parent. Such immature reaction should not be allowed to influence the judgment since the ultimate aim and purpose of all such exercises is the welfare of the ward. In the judgment, this Court further held that in extra ordinary situations, this Court should not interfere when natural parental authority is exercised to the dislike of a lover or even the ward. It is argued that inAsokan's case (supra), another Division Bench of this Court had placed reliance upon the judgment in Lal Parameswar's case (supra).
6. On the other hand, learned counsel for respondents 1 and 2 submitted that the detenue had been brought from the custody of the first respondent. She had in clear terms expressed her desire to marry the first respondent. They have already given notice of intended marriage and the period is already over and therefore they should be permitted to solemnize the marriage. In so far as she does not have any psychological disorder, the fact that there is a finding that she was immature by itself should not stand against her in exercising her right to marry a person of her choice. Despite the fact that she was housed in a hostel and the parents were permitted to interact with her for a quite long time, there is no change in her attitude. In so far as she has taken a conscious decision to marry the first respondent, the father cannot, in exercise of parental authority, pull her out from the custody of the first respondent and illegally detain the detenue. It is argued that the only aspect to be considered in a habeas corpus petition is whether the detenue is being illegally detained by the first respondent. When she appears before this Court and makes a submission that she had voluntarily gone with the first respondent, the writ of habeas corpus requires to be dismissed. It is also argued that the judgment cited by the learned counsel for petitioners has no application to the facts of the case as those were cases where a lover had filed the petition alleging that the girl was being illegally detained by the parents and it is in such an event that the Court had upheld the parental authority and found that the detention was not illegal. Such is not the situation in the present case and, therefore, this Court should dismiss the habeas corpus petition and permit the detenue to go along with the first respondent.
7. There is no dispute about the fact that the expression of interest shown by the detenue is to have a marital tie with the first respondent. It is true that parental authority can be exercised by the parents while their son or daughter remains as a minor. But the moment they become major, the exercise of parental authority gets limited. Becoming a major gives them the authority to exercise all their rights as a citizen and once they attain the age of marriage, they can choose their partner. The choice may not be to the liking of the parents. He/she may opt for a criminal or a convict, a person of different religion, caste, colour, language or even decide not to marry at all. The parental authority in such instances are of a limited nature. In the social scenario involved in our country, the parents have a say in all matters and loving children do accept their wishes and act in accordance with their opinion and advice. But that is only a wishful thinking of the parents and those parents who could make their children act in accordance with their reasonable wishes can only be termed as a fortunate lot, a God given gift. This Court in Lal Parameswar's case(supra) has exercised an extra ordinary jurisdiction stretching the limits of habeas corpus in respect of a major girl in a situation where the custody was with the parents.
8. In this case, of course, the learned counsel for the petitioners had a contention that the detenue was abducted by respondents 1 and 2 and a police case is pending. But when she had informed us that she had voluntarily left with the first respondent, we do not think that it is possible for us to assume, atleast in this proceeding that she was illegally detained. True that they were not married, and now that the notice period had already expired, it is open for them to solemnize their marriage whenever they wish. We do not want to express any opinion in regard to the pending criminal case against the 1st respondent and others.
9. In Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14), the Apex Court held as under:—
“22. The celebrated writ of habeas corpus has been described as “a great constitutional privilege of the citizen” or “the first security of civil liberty”. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our Founding Fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc.”
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“25. In Halsbury's Laws of England (4th Edn., Vol. 11, Para 1454, p. 769), it is stated:
“1454. In any matter involving the liberty of the subject the action of the Crown or its ministers or officials is subject to the supervision and control of the Judges on habeas corpus. The Judges owe a duty to safeguard the liberty of the subject not only to the subjects of the Crown, but also to all persons within the realm who are under the protection of the Crown and entitled to resort to the courts to secure any rights which they may have, and this whether they are alien friends or alien enemies. It is this fact which makes the prerogative writ of the highest constitutional importance, it being a remedy available to the lowliest subject against the most powerful. The writ has frequently been used to test the validity of acts of the executive and, in particular, to test the legality of detention under emergency legislation. No peer or lord of Parliament has privilege of peerage or Parliament against being compelled to render obedience to a writ of habeas corpus directed to him.”
10. Therefore, when a major girl exercises her fundamental rights under Article 21 of the Constitution of India by choosing her partner, Court cannot resist such expression of opinion. True that the decision is pitted against the wish of the parents, but, when a fundamental right is being exercised by a major girl, the Court will have to enforce the same.
11. Under these circumstances, taking into consideration the over all factual situation involved in the matter and since there is no change in the attitude of the detenue, even after one month of her being housed at S.N.V Sadanam hostel, we do not think that any useful purpose will be served in preventing the detenue from exercising her legal rights.
12. In so far as there is no legal marriage between the detenue and the first respondent so far, it may not be possible to send her along with the first respondent unless there is a valid marriage.
13. Writ petition is therefore disposed of as under:—
(i) That the detenue shall be free to proceed on her own wish in respect of her marriage.
(ii) The detenue shall remain at SNV Sadanam Hostel, Ernakulam until solemnization of the marriage.
(iii) The police shall make arrangements for the detenue to appear before the concerned Sub Registrar Office for solemnization of marriage.
(iv) On solemnization of the marriage, detenue shall be free to take her own decision in the matter.
(v) If the solemnization of marriage does not take place within a period of one month from today, it shall be open for the petitioners to approach this Court for further directions.
(vi) Until she remains at the hostel, all expenses shall be met by the parents of the detenue and they alone shall be permitted to interact with her.
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