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2008 Supreme(Online)(KER) 29019
HIGH COURT OF KERALA
P.R.RAMAN, V.K.MOHANAN, JJ
SHAMLA – Appellant
Versus
THE SUB INSPECTOR OF POLICE, CHAVARA – Respondent
WRIT PETITION (CRIMINAL) 105/2008
The court emphasized that a writ of habeas corpus cannot be issued unless there is clear evidence of illegal detention.
Headnote:
Custody - Marriage - Habeas Corpus - Writ of Habeas Corpus - Summary: The court addressed the legality of custody concerning marriage and personal liberty, determining that, in the absence of illegal detention, it could not mandate return to the petitioner.
Fact of the Case:
The petitioner claims her husband is illegally detained by his relatives, alleging their love marriage was undone due to family opposition. The husband, however, denies the relationship and states he is not in unlawful custody.
Issues: Whether the husband was under illegal custody and if the writ of habeas corpus should be granted to enforce his return to the petitioner.
Ratio Decidendi: The court held that without proof of illegal custody, there is no basis to issue a writ of habeas corpus, leaving familial disputes to be resolved through appropriate authorities.
Final Decision: The writ petition is dismissed due to the lack of evidence of illegal detention.
JUDGMENT
Raman, J.
Petitioner alleges that her husband by name Yazar Arafeth is under the illegal custody of respondents 4 to 6 and their relatives. Both the petitioner and the said Yazar Arafeth belong to the same religion and according to the petitioner, they were in love for the last two years. It is further averred that their marriage was solemnized as per the custom prevailed in their community on 28/1/2008 at Kottukadu Muslim Jama Ath, after the interference of the police. Since the petitioner hailing from a poor family, respondents 4 to 6 are against the marriage. On 10/2/2008 respondents 5 and 6 came to the house of the petitioner and persuaded her husband to accompany them for attending a marriage at Karunagappally. Believing the words the husband went along with them; but he did not return. It is in these circumstances that this habeas corpus writ petition is filed for producing the husband of the petitioner and to release him.
2. Pursuant to the notice issued Yazar Arafeth and his father WP(Crl).No.105/2008 appeared before us. We have interacted with Yazar Arafeth. He denies the averments in the writ petition. He also denied that he had any relationship with the petitioner. We have given an opportunity to the petitioner to talk to the alleged detenue. According to Arafeth, he is not under the illegal custody of anybody. His father also stated that he is not willing for the marriage of the petitioner with his son. However, the petitioner alleges that her ornaments were taken by the said Arafeth and further that they have been living as husband and wife. We cannot however go into this question in this proceeding. Since Arafeth is not prepared to go along with the petitioner or to receive her as his wife and since he submits that he is not under the illegal custody, we can only leave open the other questions, if any, to be adjudicated by the appropriate authority and close this writ petition. We do so.
