SEKAR REPORTER

Court News from Madras High Court

Honourable  Mr. Justice S.VAIDYANATHAN and The Honourable Mr. Justice A.D.JAGADISH CHANDIRA H.C.P.No.1538 of 2022

by ·

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED: 22.08.2022

 

Coram

 

The Honourable  Mr. Justice S.VAIDYANATHAN

and

The Honourable Mr. Justice A.D.JAGADISH CHANDIRA

 

H.C.P.No.1538 of 2022

Saran                                                                                 .. Petitioner

-vs-

  1. Commissioner of Police,

Commissioner Officer,

Veppery, Chennai-600007.

 

  1. The Inspector of Police,

J-10, Semancheri Police Station,

Chennai-600 119.

 

  1. Umar                                                   … Respondents

Prayer: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus directing the 2nd Respondent police to produce the detenue namely Faseelah Banu wife of Saran aged 21 years to this Court from illegal custody of 3rd Respondent and set her at liberty.

For Petitioner : Mr.S.Suresh
For Respondents : Mr.Babu Muthumeeran (R1 and R2)

Addl. Public Prosecutor

Mr.J.Ashok (R3)

 

O R D E R

 

S.VAIDYANATHAN.J

and

A.D.JAGADISH CHANDIRA.J

 

This Habeas Corpus Petition has been filed to direct the 2nd Respondent police to produce the detenue namely Faseelah Banu wife of Saran aged 21 years to this Court from illegal custody of 3rd Respondent and set her at liberty.

 

  1. The case of the petitioner in brief is as follows:

 

(i) The Petitioner had love affair with one Faseelah Banu for the past 4 years and after coming to know of the same, the 3rd Respondent who is the father of the detenue attempted to arrange marriage for the detenue.  Thereafter the petitioner informed about the same to his father and when his father approached the 3rd Respondent and requested to arrange marriage for the Petitioner and the detenue, he refused to accept the marriage proposal mooted out by the petitioner’s father and thereafter detained the detenue in her house and restricted her to contact the petitioner.  It is further stated that the detenue escaped and came to the house of the petitioner and requested to conduct the marriage immediately and based on her request, in the presence of the parents of the petitioner, marriage was performed and registered at the Sub-Registrar’s Office at Royapuram vide Marriage S.No.TMR/Royapuram/527/2002. After marriage the Petitioner advised her to go to her parents’ house for the purpose of getting consent from them for their marriage. When the detenue informed her marriage with the petitioner to the 3rd Respondent, she was beaten severely. It is also stated that subsequently, on 07.05.2022, the detenue left her parents’ house and joined the petitioner and both of them went to the petitioner’s relative’s house at Dindukal. Thereafter, based on the complaint given by the 3rd respondent, Police officials from the Neelankarai police station contacted the petitioner and asked him to appear before the Neelankarai Police Station along with his wife / the detenue.

 

(ii) On 09.05.2022, the Petitioner appeared before the Neelankarai Police along with the detenue. In the Police Station, the 3rd Respondent also appeared and accepted the marriage. Thereafter on 12.06.2022, the 3rd Respondent informed the detenue that her mother is seriously ill and admitted in K.L.Hospital and requested  her to come immediately and see her mother. Believing the same, the petitioner and the detenue went to the hospital and the 3rd Respondent spoke to them in a kind manner and requested the detenue to stay with them to take care of her mother in the hospital. Acceding to the request of R3, the petitioner left the detenue in the hospital and thereafter. she came back on 12.07.2022.

 

(iii) While so,  on 18.07.2022, the mother of the detenue came to his house and informed that they want to conduct marriage in a grand manner by calling all the relatives and believing her words he sent his wife to her parental home.  Thereafter from the next day her phone was switched off and when he went to his in-laws home, he did not find the detenue. Suspecting danger to life and liberty of his wife, the petitioner lodged a complaint on 26.07.2022 before the 2nd Respondent police. But the 2nd Respondent police neither assigned any CSR number nor conducted any enquiry. Aggrieved over the same, the present Petition came to be filed.

 

 

2(a). This Court directed the learned Additional Public Prosecutor to  produce the detenue and her parents before this Court through the respondent police.

 

  1. Today, the detenue along with her parents appeared before this Court and the Petitioner along with his father also appeared in person.

 

  1. On enquiry with the detenue, she has deposed that she is pursuing her Physiotherapy (BPT) course and she has 1½ more year to complete the said course. Though she has not denied her marriage with the petitioner, she has stated that the marriage did not take place in the hall, namely, S.V.Mini Party Hall, as averred in the petition and she was simply made to sign on the papers given by the father of the petitioner. She has further deposed that since she is much interested in completing her studies, she has decided to remain in her parents’ house and may join the petitioner after completion of her course.

 

  1. Even though the parents of the detenue has no objection for the decision taken by the detenue, learned counsel for the 3rd Respondent has stated that despite registration of the marriage, their marriage is a voidable / irregular one, for the reason that the place of marriage is highly questionable and the petitioner has not consummated the norms to be followed in respect of conversion into Muslim religion and marrying a Muslim girl. He has further stated that insofar as a Sunni marriage is concerned, it will become automatically invalid, if it is performed without the presence of witnesses endorsed in the Jamaath Register. Moreover, it is not known as to whether the marriage has been solemnized in the presence of Chief Imam / Khatheeb or his representatives in the venue mentioned in the certificate given by him. He has pointed out that though a sum of Rs.5,000/- is stated to be paid as Mehr (dower), there is no signature of the detenue in the certificate issued by Chief Imam with regard to receipt of Mehr (dower), which is mandatory before solemnizing the marriage.

 

  1. It is pertinent to state here that in terms of Mohammed Law, marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and a social need. Marriages in Muslims have a nature of civil contract. When the marriage is solemnized in consonance with the prescribed norms, it creates various rights and obligations on both the parties, as otherwise, it can be construed as voidable / irregular. A marriage of this nature should not be conducted in a hurried manner by the Chief Imam or his office without verifying the authenticity of documents and it is not known what necessitated the Chief Imam to issue such a certificate without proper verification.
  2. It is to be remembered that in the Habeas Corpus Petition, the scope is very limited and it cannot be expanded in a wider sense. The disputed question of facts, as raised by the 3rd respondent cannot be looked into in this petition and it is open to the 3rd respondent to agitate these points before the appropriate forum, if necessity arises / he is aggrieved. The intent of this provision is to ensure that no one is kept under any illegal custody and set at liberty after production on verifying the age of that person.
  3. As on date, the detenue is major and expressed her willingness to go with her parents for the purpose of continuation of her studies. Accordingly, she is set at liberty and is permitted to stay with her parents.
  4. At this juncture, the petitioner has stated that the parents of the detenue are not allowing the detenue to speak to him over phone and hence requested to permit him to speak to her through phone. The petitioner has further stated that he will not disturb his wife unnecessarily and will not cause any hindrance for completion of her studies.

 

  1. This Court cannot compel anybody to speak to other side over phone as and when called, which is purely personal and is based on the mood. However, if at all, the detenue wants to speak to the petitioner, the parents of the detenue shall not prevent her to do so.

 

  1. Finding that the detenue is not in the illegal custody of anyone, warranting issuance of a writ of habeas corpus, this Habeas Corpus Petition stands closed.

                                                                        (S.V.N.,J.)      (A.D.J.C,J.)                                                                                  22.08.2022

Index: Yes/No

arr/ar

 

Note: Issue order copy on 30.08.2022

 

 

 

 

 

To:

 

  1. The Commissioner of Police,

Office of the Commissioner,

Veppery, Chennai-600007.

 

  1. The Inspector of Police,

J-10, Semancheri Police Station,

Chennai-600 119.

 

  1. The Chief Imam / Khatheeb

No.7, Akber Nagar,

Kalpalayam, Chennai-600 099.

 

  1. The Public Prosecutor,

High Court, Madras.                    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

S.VAIDYANATHAN,J.

and

 A.D.JAGADISH CHANDIRA,J.

arr/ar

 

 

 

 

 

 

 

 

 

 

 

 

 

H.C.P.No.1538 of 2022

 

 

 

 

 

 

 

 

 

 

 

 

 

22.08.2022

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