Judgment:
Krishnamoorthy, J.
1. In both these Original Petitions a commonquestion arises and accordingly they are disposed of by a common judgment.The question involved in O.P. No. 3771 of 1992 is as to whether thepetitioner is entitled to maintain a petition for the issuance of a writ of habeascorpus for the production of a girl, Deepa Ravindran, who is the daughter ofthe 1st respondent. The further question to be decided is as to whether thecustody of a parent in the circumstances can be said to be unlawful, warrantinginterference by this Court.
2. Petitioner alleges in his petition that himself and Deepa Ravindranwere neighbours and that they have been in love for long eversince their childhood.The parents and other relatives were not agreeable to their relationshipand on 11-3-1992, petitioner and Deepa eloped from their respective houses andwere staying with the petitioner's mother's sister's daughter at a place calledNarakathodu. It is further alleged in the petition that they entered into a registered marriage agreement (No. 42/82) dated 12-3-1992 before theSub- Registrar's Office, Thengana; a copy of the above agreement is produced as Ext. PI.According to the petitioner, they became husband and wife by execution ofthat registered document and they were residing as such in his sister's house atNarakathodu. While so, on 16-3-1992, father of Deepa and two other personsrepresented to them that they will conduct a formal marriage between the petitioner and Deepa and on that pretext took Deepa also along with them, who isnow residing with her parents. According to the petitioner, the representationmade by the 1st respondent was only a ruse to take Deepa Ravindran out ofthe custody of the petitioner and she is kept in illegal custody against her wishby the respondents. The 1st respondent is the father of Deepa and the 2nd respondent is his sister's son.
3. Petitioner alleges that intention of the respondents was to separateDeepa from him and she is kept in illegal custody against her wish. It is alsoalleged by him that she is a major and is capable of expressing her free will.According to him, it is against her will and desire that the respondents havebeen illegally detaining her. In these circumstances, the petitioner has filed thispetition for the issuance of a writ of habeas corpus directing the respondents to produce the body of Deepa Ravindram, wife of the petitioner, inCourt and order her release.
4. The first question to be decided is as to whether a petition for theissuance of a writ of habeas corpus is maintainable at the instance of thePetitioner.Petitioner throughout in the petition maintains that he is the husband ofthe girl Deepa, on the basis of a registered document executed by the petitionerand Deepa on 12-3-1992 before the Sub Register's Office, Thengana. Both partiesare Hindus and it is well-settled that in order to claim the status of a husband,they should have undergone a form of marriage prescribed under law. Executing a registered document and declaring that they are husband and wife will notconfer the status of a husband on the petitioner because it is not one of therecognised forms of marriage in law. There is no case for the petitioner thathe had married Deepa in the customary form. In these circumstances, wehave to proceed on the basis that the petitioner is not the husband ofDeepa.
5. The question involved in the case is regarding the custody of a girl,though, no doubt, according to the petitioner, she is a major. Even assumingthat she is a major, the question is whether in such circumstances, the petitioneris entitled to maintain an application for the issue of a writ of habeas corpus forthe production of her body and also as to whether the custody of the father insuch circumstances can be said to be unlawful. We do not think that havingcontrol and supervision of an aged girl by the parents will amount to illegalcustody warranting the issue of a writ by this Court. Parents will naturally beinterested in the welfare of their children and unless there are extraordinarycircumstances, normally they will be the proper persons to take decisions concerning the career and future of their children. Parents will be entitled to havecontrol over the children, especially if they are daughters, to protect them fromthe vagaries of adolescence.
6. Petitioner claims to be the husband of only on the basis of theregistered document which will not confer on him the status of a husband. A.person like the petitioner is not entitled to maintain a petition for the issue of awrit of habeas corpus for the release of a girl, especially when she is only in thecustody of the father. In Mohd. Ikram Hussainv. State of U.P., (AIR 1964S.C. 1625), the Supreme Court has laid down the principles applicable in suchcircumstances. The Supreme Court observed ;
'A writ of habeas corpus at the instance of a man to obtainpossession of a woman alleged to be his wife does not issue as amatter of course. Though a writ of right, it is not a writof course especially when a man seeks the. assistance of theCourt to regain the custody of a woman. Before a Court accedesto this request it must satisfy itself at least prima facie that the person claiming the writ is in fact the husband and further whethervalid marriage between him and the woman could at all have takenplace.'
7. Counsel for the petitioner placed great reliance on the decision ofof the Supreme Court in Gian Devi v. The Superintendent, Nari Niketan, Delhi& Others, (1976) 3 SCC 234 and also on the Division Bench decision of thisCourt in Krishna Baj v. State of Kerala, ILR 1980 (1) Ker. In Gian Devi's casethe petition was filed by the woman herself when she was ordered to be detainedin Nari Niketan, Delhi, by the Judicial Magistrate. It was in that context thatthe Supreme Court said that no fetters can be placed upon her choice of theperson with whom she is to stay. In the latter decision, the question as to whether such a petition is maintainable by a person other than the husband was notconsidered at all, as no such contention was taken in the case, as seen frompara 37 of that judgment to the following effect :
'37. Incidentally, we may record that Counsel for the 4threspondent did not contend for the position that without a findingon the alleged marriage between the petitioner and Prabha, no writcould issue. He fairly conceded that the present case can be treatedas an application by 'some other person' within the meaning of theproviso to Rule 160.'
Thus, these two decisions can have no application to the facts of thiscase.
8. In O.P. No. 2745 of 1992, the petitioner is a Hindu belonging to theScheduled Caste community and according to him, he fell in love with the 5threspondent who belonged to the Muslim community. He alleged that she was21 years old and on 2-2-92, the 5th respondent on her own will left her familyand accompanied him to his house for living as husband and wife. On 3-2-92the petitioner and the 5th respondent contracted a register marriage at the SubRegistry, Sreemoolanagaram in Ernakulam District; a copy of the marriagecontract is produced as Ext.Pl. According to the petitioner, on8-8-1992, a police jeep came to his house and three police men of the ChengamanaduPolice Station arrested the petitioner, his wife and his mother and took themto the said Police Station. Though the petitioner stated that the petitioner andthe 5th respondent are married, they took away the 5th respondent from hiscustody and her whereabouts are not known to him. Petitioner alleges that hehas not seen her. thereafter. According to him, the 5th respondent is detainedagainst her wish and will by the 6th respondent, her father, and she is not ableto communicate with the outside world. In these circumstances, he prays for awrit of habeas corpus commanding respondents 2, 3 and 4 to produce the 5threspondent before Court and to release her from the illegal confinement madeby the father, the 6th respondent.
9. The 6th respondent, father of the 5th respondent, has filed a counter-affidavit in which he has alleged that she is his youngest daughter and thatshe is a minor. In support of the fact that she is a minor, he hasproduced as Ext. R6(B) the relevant pages of the ration card issuedduring 1985-86 which shows her age. So also, the new ration card forthe year 1991 (the relevant pages produced as Ext. R6(C)) also shows herage as 12. He denied the fact that the 5th respondent is a major. According tohim, the 5th respondent was found missing and a complaint was launched byhis son before the Vellamunda Police Station. On the basis of the investigation,they traced the 5th respondent from the house of the petitioner. Later, the 5threspondent was produced before the Magistrate, Mananthavady and she expressed her desire to go with her parents and the Court permitted her to do so.According to him, she is living with them on her own free will and she is notin illegal confinement.
10. We got down the records of the police case initiated on the basisof the complaint made by the 6th respondent.
11. In this case also it can be seen that the petitioner is claiming tobe the husband of the 5th respondent (Nabeesa) only on the basis of a registered document dated 3-2-92 produced as Ext. PI. There cannot be any doubtthat the petitioner cannot become the husband of the 5th respondent by thisregistered document alone. Petitioner has not alleged that he has married the5th respondent in any legal manner. In that view of the matter, for the reasonswe have already stated, the petitioner is not entitled to any relief.
12. There are other reasons also for refusing the relief claimed by thepetitioner. First of all, the 6th respondent has clearly alleged in the counteraffidavit that the 5th respondent is a minor, prima facie, the ration card for1985-86 shows that she was only 7 years old at that time. Ext. R6(C) the rationcard for the year 1991 shows her age as 12. Petitioner contended that in theregistered document Ext. PI her age is shown as 21.The age in the ration cardwould have been supplied by the parents who are competent to mention theage of the 5th respondent and it has to be remembered that it was at a timewhen there was no dispute regarding her age. There is no reason why the 6threspondent should give a false age of Nabeesa for obtaining a ration card sothat prima facie the age given in the ration card has to be accepted for thepurpose of this case at least, Petitioner has not satisfactorily proved that the5th respondent is a major. In that view of the matter also the petitioner is notentitled to any relief.
13. Moreover, on the basis of the cumplaint made by the 6th respondent, the police took custody of the 5th respondent and produced her beforethe Magistrate, Mananthavady. The Magistrate questioned her and she hadclearly stated before him that she wants go along with her parents who werewaiting outside in the verandah. She clearly expressed her desire to go wtihthe parents and accordingly the Magistrate ordered that she is given liberty togo with her parents. Accordingly she joined her parents and is now staying withthem. It can thus be seen that when she was questioned by the Magistrate, shehad categorically stated that she desired to go with her parents which clearlyshows that there is nothing to show any sort of illegal confinement by theparents or that she is being kept against her wishes. We are satisfied from thestatement recorded by the Magistrate that she is staying with her parents onher own will and there is no illegal confinement is alleged by the petitioner.
14. In the light of what is stated above,there is no merit in these twoOriginal Petitions and they are accordingly dismissed.