A person cannot be considered illegally detained if they are at liberty and not subject to any unlawful restraint.

Headnote:
HABEAS CORPUS - MISSING PERSON - MAINTENANCE - SUMMARY
Fact of the Case:

The petitioner, wife of the alleged detenu, filed a writ petition seeking a writ of habeas corpus to find her missing husband. The husband had defaulted on maintenance payments ordered by the court for the petitioner and their disabled daughter. The petitioner had filed complaints with the police, but they were unsuccessful in tracing the husband.
Finding of the Court:

The court found that the alleged detenu had been traced and produced before the court. The detenu stated that he had left home due to marital discords and was now employed as a domestic help. He also alleged that he had been assaulted at the instance of the petitioner.
Issues: 1. Whether the alleged detenu was illegally detained. 2. Whether the detenu was liable to pay maintenance to his wife and daughter.
Ratio Decidendi: The court held that the detenu was not illegally detained and that he was at liberty. The court also directed the detenu to make efforts to pay maintenance to his daughter, subject to availability of funds. The court further directed the parties to appear before the District Mediation Centre for mediatory efforts.
Final Decision: The court disposed of the writ petition, directing the parties to appear before the District Mediation Centre for mediatory efforts.

J U D G M E N T

ALEXANDER THOMAS, J.

The prayers in the instant Writ Petition (Criminal) seeking for the Writ of Habeas Corpus, are as follows:

“A. Writ in the form of Habeas corpus or any other appropriate Writ, Direction or Order directing the respondents 1 to 4 to find out the whereabouts of the husband of the Petitioner; Shaji Varghese, aged 54, S/o Raju, Bethel, Anghadikal South-Muri, Anghadikal Village, Adoor Taluk, Pathanamthitta District and bring him before this Hon'ble Court.

B. Such other relief this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.

C. Dispense the production of English translation of Documents in Vernacular language And D. Cost of the Proceedings.”

2. Heard Sri.Santhan V.Nair, learned counsel appearing for the petitioner, Sri.E.C.Bineesh, learned Prosecutor appearing for official respondents 1 to 4 and Sri.M.S.Imthiyaz Ahammed, learned counsel appearing for R-5. Though notice has been duly served on contesting respondent No.6, there is no appearance for that party.

3. The case set up in the above W.P.(Crl). is to the effect that the petitioner herein is the wife of the alleged detenu (Sri.Shaji Varghese, son of R-5 and brother of R-6) and that, their marriage was solemnized on 18.2.1992 and a girl child by name, Jeena Shaji, was born in the wedlock, who is now aged 25 years. The said daughter is differentially abled and is suffering from 87% permanent disability, as evident from Ext.P-1 medical certificate. Further that, the alleged detenu was not taking care of the financial needs of the petitioner and her daughter and so, they were constrained to approach the Judicial First Class Magistrate Court, Adoor, seeking for Maintenance Claim under the Domestic Violence Act, which resulted in Ext.P-2 order dated 22.12.2017, in M.C.No. 11/2014 on the file of the Judicial First Class Magistrate Court, Adoor, wherein it has been ordered that the alleged detenu shall pay monthly maintenance @ Rs. 2,500/- to the petitioner (wife) and Rs. 2,500/- to the mentally disabled daughter. That, the alleged detenu has consistently defaulted in making payments and all efforts for getting execution of the order have turned out to be in vain and the processes sent to the alleged detenu have been returned unserved. Further, it is reported that her husband (the alleged detenu) is missing and various complaints made by the petitioner with the Police authorities to trace out the missing husband have not turned out to be successful, etc.

4. We have issued notice in this case on 16.12.2022 and had directed the competent Police authorities to furnish instructions. Later, when the case was taken up on 21.12.2022, the learned Prosecutor has submitted, on the basis of the instructions, that steps have been taken to register FIR under Sec. 57 of the Kerala Police Act, 2011, in relation to the missing of the petitioner's husband and that, after investigation, the Police expects to trace out the missing person and produce him before the jurisdictional Magistrate Court and subsequently, before this Court as well.

5. Today, when the matter has been taken up for consideration, Sri.E.C.Bineesh, learned Prosecutor appearing for official respondent Nos.1 to 4 submits, on the basis of instructions, that the alleged detenu/missing person (petitioner's husband) was traced out and he was produced before the Judicial First Class Magistrate Court concerned and was set at liberty.

6. Further that, today, R-4 has also ensured the production of the alleged detenu/ missing person before this Court. We have interacted with the alleged detenu/ missing person, who stated that he was forced to leave his residential home due to marital discords and that, to eke out a living, he is now employed as a domestic help in the house of an aged person in Kollam. Further that, it was also alleged that he has been assaulted at the instance of the petitioner and his complaint in that regard has not been acted upon, etc.

7. On being queried as to

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