Kerala High Court
Sreekesh vs Mohammed Asharaf on 24 September, 2002
Equivalent citations: 2003(1)KLT397
JUDGMENT S. Sankarasubban, J.
1. This Original Petition has been filed for a writ of Habeas Corpus commanding the 1st and 2nd respondents to produce the third respondent before this Court and to release her from their illegal custody and to give the custody of the third respondent to the petitioner. The petitioner has filed this petition as next friend of the third respondent. According to the petitioner, he and the third respondent attained the age of majority. On 24th June 2002, both of them entered into an agreement of marriage and were living together as husband and wife. While so, respondents 1 and 2 and their relatives forcefully took away the third respondent and admitted her in a counselling centre at Ambalamukku near Peroorkada at Thiruvananthapuram in order to give her a counselling to change her attitude towards the petitioner. The third respondent informed the petitioner about her stay at counselling centre and they eloped from there.
2. On 20th July 2002, the third respondent's father complained before the fourth respondent. On receiving the complaint, the fourth respondent registered a case for man missing. On 21 st July 2002, the fourth respondent arrested the petitioner and the third respondent and produced before the Judicial First Class Magistrate Court, Thiruvananthapuram. Before the learned Magistrate, the third respondent submitted that she wants to live with the petitioner and the learned Magistrate by an order allowed them to live together and thereafter, they were residing together as husband and wife at Kizhavoor Gaurivilam, Mukhthala, Thrikovilvattom Village.
3. On 28th July 2002, the first respondent and his relatives went to the residence of the petitioner and told that mother of the third respondent is seriously ill. Without the consent of the petitioner, the first respondent took away the third respondent to her house. The petitioner went to the house of the third respondent and asked the parents to send her with him as they had been living together as husband and wife and they are matured enough to take decision on their life. However, respondents 1 and 2 never allowed the third respondent to come out of the house and they have illegally detained the third respondent in their house.
4. Thereupon, the petitioner filed complaint before the sixth respondent, the Sub Inspector of Police, Kottiyam to take appropriate action in the matter. In the complaint dated 5th August 2002 filed before the Judicial First Class Magistrate Court, Kollam, the Magistrate ordered and referred the case for investigation. Hence, this petition is filed for a writ of Habeas Corpus.
5. A counter-affidavit was filed by the first and second respondents. It is stated in the counter-affidavit that the third respondent is the eldest daughter of respondents 1 and 2. She was studying for B.Sc. Computer Science in the University Institute of Technology at Kollam and she has completed her course. The parents of the petitioner found fault with the first respondent by saying that he gave unbridled freedom to the third respondent and asked the first respondent to dissuade the third respondent from the affair. The third respondent was taken for counselling. According to him, his daughter opened her mind before her grand-father and wept before him by saying that she was responsible for the whole predicament of their family. She cursed herself and expressed her desire to appear before this Court and apprise the court that she was not under the illegal detention of her parents. According to the respondents, the boy remains unemployed and he has no permanent avocation. It is further stated that they would have accepted the relation had the parents of the boy welcomed the third respondent wholeheartedly.
6. The girl was produced before this Court on 12th September 2002. At that time, we thought that the third respondent should be given some time to think over the matter. Hence, she was put in Santhinikethan, Ernakulam and the case was posted on 23rd September 2002. When we questioned, she said that she wants to live with the petitioner
7. It is seen that what has been produced as a proof of marriage is Annexure C, which is only an unregistered document. This document is "titled as an agreement of marriage. According to us, there is no valid marriage between the petitioner and the third respondent. Can we say that the custody of the girl with the parents is illegal. The parents are entitled to have the custody of their children and in no circumstances, it can be said to be illegal, especially in the case of a girl. The parents have a duty to put their children in a correct pathway in their life. True that the third respondent has become major. But that does not mean that no duty is cast upon the parents to advise her on important matters. No doubt, the third respondent says that she legally lived with the petitioner. It is the case of the parents that the petitioner would not be able to look after her. Here, we find that there is no valid marriage. There is only an agreement in writing. That has no legal validity. It is the responsibility of the parents to see that the daughter is not cheated.
8. In the decision reported in Prasadhkumar v. Ravindran( 1992(1) KLT 729) it was stated thus: "It cannot be said that having control and supervision of an aged girl by the parents will amount to illegal custody warranting the issue of a writ by this Court. Parents will naturally be interested in the welfare of their children and unless there are extraordinary circumstances, normally they will be the proper persons to take decisions concerning the career and future of their children. Parents will be entitled to have control over the children, especially if they are daughters, to protect them from the vagaries of adolescence". In this case, a subsequent affidavit has been filed by respondents 1 and 2 saying that after the third respondent's education is over within three years, they will marry her to the petitioner, if she then wishes so at that time.
9. On a review of the entire facts and the law on this point, we don't find any ground to release the third respondent from the custody of the parents and to handover her to the petitioner. Except a bald unregistered document, there is nothing to show that the petitioner has validly married the third respondent. The parents are allowed to take the third respondent with them to their house. The Police is directed to accompany the parents and daughter till they reach their house. We make it clear that we have never said that there can be no marriage between the petitioner and the third respondent. That decision to be taken by the appropriate parties. We have only said that the custody of the parents is not illegal.
Original Petition is disposed of as above.