Thottathil B.Radhakrishnan, J. This petition is filed seeking issuance of a writ in the nature of habeas corpus.
2. On 21.10.2014, it was noted that a prima facie case for granting of the application is made out and therefore, a rule nisi was issued calling upon respondents 3 and 4 to appear on 24.10.2014 to show cause why such order should not be made and also to produce the alleged detenue in Court. We may recall here that there was some uncertainty as to whether the petitioner has to take out notice at his expense, even if it is ordered to be served through a special messenger. If the Court is not satisfied at the stage of admission to issue a rule nisi, process will go at the expenditure of the petitioner. If a rule nisi is not issued, an application for issuance of a writ in the nature of habeas corpus will not be treated as admitted. But, when a rule nisi is issued, it discloses the fact that the High Court is satisfied that a prima facie case for granting the reliefs sought for in the application is made out. Rule 161 of the Rules of the High Court of Kerala, 1971 provides as follows:
“161. Issue of Rule Nisi.- If the Court is of opinion that a prima facie case for granting the application is made out, a rule nisi shall be issued calling upon the person or persons against whom the order is sought, to appear on a day to be named therein, to show cause why such order should not be made and at the same time to produce in Court the person or persons alleged to be illegally or improperly detained to be dealt with according to law. Copies of the application and the affidavit shall be served on each of the respondents along with the notice.”
Once that happens, the lis becomes one where the State would proceed to zealously guard the liberty of the person found, prima facie, to be under illegal detention or confinement. Then, it is within the Sovereign domain and obligation to secure the availability of the alleged detenue, be it in person or in body. That is the gospel of a writ in the nature of habeas corpus. Hence, when rule nisi is issued, the Sovereign has to spend to protect the citizen or person in restraint. Therefore, when rule nisi is issued, process thereon shall be forthwith at State expense.
3. Parents of the alleged detenue are present. Respondents 3 and 4 are present. The alleged detenue, who appears to have come with respondents 3 and 4, is also present.
4. This Court interacted with the alleged detenue, her parents and respondents 3 and 4. Having carried out such interactions to judicial satisfaction, it is seen that the alleged detenue is not in illegal detention. The rule nisi is hence discharged.
5. We have heard the learned counsel for the parties, to the extent relevant on issues of law.
6. The alleged detenue and the third respondent appear, for the present, to be on intimate cordiality. We record the statement of the fourth respondent, the mother of the third respondent that she kept her son and the alleged detenue, physically apart, in her house. She is employed as a nurse. Her husband is abroad as a driver. They have a girl child, younger to the third respondent. On the basis of fourth respondent's statements, which, in our assessment are frank, and, having noted her demeanor disclosing frankness, we have no hesitation to believe her in that regard.
7. The alleged detenue is a Christian and the third respondent is a Hindu. Going by the laws in India, the only manner in which the alleged detenue and the third respondent can enter into a lawful marriage is under the provisions of the Special Marriage Act, 1954. The undisputed fact, as spoken to by the alleged detenue and the third respondent, is that both of them are only 19 years of age. The third respondent is therefore incompetent to enter into a valid marriage in terms of that Act. It would also be in violation of Prohibition of Child Marriage Act, 2006.
8. The third respondent and the alleged detenue are pursuing Diploma Course in Engineering in an institution. The fact of the matter remains that this Court, having regard to its duty and authority to sit as sentinel on the qui vive on an application for issuance of a writ in the nature of habeas corpus, cannot accept the desire of the alleged detenue and the third respondent to cohabit now, for the simple reason that it will be against the format of protective measures that should be available to a boy who is yet to reach the age of marriage under the relevant laws and to a female who cannot lawfully enter into a marriage with a male who has not reached the age to enter into a lawful marriage in terms of the laws in India.
9. We have had fruitful interactions and deliberations with the parents of the alleged detenue and the fourth respondent, the mother of the third respondent. The third respondent's father is working abroad. Some other close relatives of the parties on either side are also present in court. As a result of the interactions and deliberations, the alleged detenue has agreed that she will go with her parents. Her parents have assured that the alleged detenue will be taken care of with all love and affection and they will not act against her interest. It is also told that they would not force her to enter into any marriage without her consent. We record that statement of the parents of the alleged detenue. With that, the alleged detenue has agreed to go with her parents and the third respondent has agreed to go with his mother, the fourth respondent.
10. The alleged detenue and the third respondent have understood that they have to further pursue their education and to grow so that they could stand by themselves. It is said that they would do that without in any manner interfering with the studies of either. But, they ought to have privacy and insulation from being unnecessarily scouted disturbing the process of education. We also clarify that this judgment will not stand in the way of the third respondent and the alleged detenue taking any decision at any appropriate time when they are empowered by law to do in their matrimonial life in the course of time.
We record all the aforesaid as a result of the deliberations which we had in the open court. This judgment is dictated in the open court in the presence of the parties. All of them agreed to undertake by the said. Recording the aforesaid, this petition is closed as unnecessary any further. This petition is ordered directing that the alleged detenue will go with her parents to their home and there will be no dispute to such procedure being carried out by them from any quarters.
THOTTATHIL B. RADHAKRISHNAN JUDGE sou.
BABU MATHEW P. JOSEPH JUDGE