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Sebastian Vs. Moideen A.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ407
AppellantSebastian
RespondentMoideen A.P. and ors.
Excerpt:
.....separate affidavits stating that she was not pregnant, to be medically examined and that at the request of one like the petitioner before us. more so, because, we are thoroughly satisfied that the case of the petitioner is absolutely false. 11. a person like the petitioner is not entitled to any assistance from a court of law. wayside romeos invariably forsake such innocent girls once their lust is satisfied. no amount of love or infatuation displayed by such lovers towards a minor girl should persuade a court of law to act to the prejudice of the girl and to deny her parents their lawful custody, even if such a girl out of ignorance and innocence, agree to live with her lover and away with her parents. courts have a great duty in cases like this where the welfare and future of minor..........the court acts as a pater families with a sacred duty to safeguard the interests and future of minor girls removed from lawful custody under lure of momentary pleasure. a girl of tender age easily falls an innocent prey when initiated into mysteries of sex. wayside romeos invariably forsake such innocent girls once their lust is satisfied. no amount of love or infatuation displayed by such lovers towards a minor girl should persuade a court of law to act to the prejudice of the girl and to deny her parents their lawful custody, even if such a girl out of ignorance and innocence, agree to live with her lover and away with her parents. in such cases age should be the sole determining factor. the momentary sexual pleasure is bound to disappear before long. a faulty step by a court in.....
Judgment:

V. Khalid, J.

1. The petitioner claims to be the husband of respondent. 2. According to him, the marriage between them took place on 14-6-1982 and it was registered in the Sub-Registry, Mulam-thuruthy. Even before the said marriage, they had been on intimate terms. The 2nd respondent is pregnant, the pregnancy having advanced by about five months. The petitioner is a Christian, parents of respondent 2 did not object to the alliance. All that they wanted was that he should get himself converted to Islam. The petitioner was agreeable to this course. He even went to ponnani for this purpose. He had to come back since he was told that he had to stay there for a month to learn Arabic and religious texts before conversion. On the date of marriage, according to him, respondent 2- had attained majority.

2. The Sub-Inspector of police, Ernakulam Town North Police Station registered a case as Crime No. 134 of 1982 on the complaint of respondent 1, the father of respondent 3 and arrested respondent 2 from the house of the petitioner and produced her before the Judicial I Class Magistrate's Court, Ernakulam. The 1st respondent applied to the Magistrate that respondent 2 be released to his custody. The petitioner made a similar application for her release to his custody, The 2nd respondent also submitted a petition stating that she did not intend to go with her father and that she might be permitted to go with the petitioner. The 1st respondent had produced the certified copy of an extract of an admission register issued by the Head Master, Government High School for girls, Ernakulam. In this document, the date of birth of respondent 2 was shown as 3-4-1967. The genuineness of this document was strongly disputed by the petitioner as well as by respondent 2. The petitioner stated before the Magistrate that no offence had been reported to the Police and that therefore the Magistrate had no jurisdiction to take cognisance of the case. Disregarding the contentions of the petitioner as well as of respondent, No. 2 the court below directed release of respondent No. 2 to the custody of respondent No, l. The 1st respondent took respondent No. 2 away by force ignoring protests. The petitioner came to know that respondent No. 1 was compelling respondent No. 2 to consent to an abortion. Aggrieved by the order of the Magistrate mentioned above, the petitioner has moved this Court in this revision.

3. Along with the revision petition, the petitioner filed Crl. M. P. NO. 764 of 1982 to stay the operation of the order of the Magistrate and to direct respondent No. 1 to produce respondent No. 2 before this Court and to release her from the obligations arising from the aforesaid order.

4. These petitions come before us on reference by a learned Judge of this Court, since in his opinion, in the nature of the contentions raised, the matter had to be decided by a Division Bench.

5. Though notice was served on the respondents, there was no appearance for them before this Court, Since the petitioner's counsel submitted that respondent 2 was six months pregnant and that his client apprehended danger to her life, we directed notice by special messenger in the Crl. M. P. on 11-8-1982 and posted it to 18-8-1982. Notice was served through special messenger. There was no appearance. The case was adjourned twice. Still nobody appeared. The absence of the respondents before us prevented us from finding out the case of pregnancy put forward by the petitioner. We felt that the presence of the respondents would help us ascertain the real facts. Therefore, we directed respondent 1 to appear in court in person at 10.30 a.m. on 16-9-1982 by our order dated 14-9-1982 and also observed that a direction to produce the girl could be considered after respondent No. 1 appeared, and posted the case to 16-9-1982. On 16-9-1982 the respondent's counsel appeared before us. He told us that he had filed his vakatath in time and was awaiting for the case. He was expecting the case to come up before a single Judge since this was a criminal revision. A counter affidavit had been filed by respondent No, 1 and another counter affidavit by respondent No. 2. His vakalath was not sent up to the court. The counter affidavit filed by respondent No 2 was also not sent up because it was sworn to by a minor. Now before us. we have the affidavits filed by respondent No. 1 as well as respondent NO. 2.

6. The 1st respondent has sworn to the fact that the petitioner was staying for five years along with his family as a tenant in a house belonging to res-pendent No. 1. He and the 1st respondent's children were living in brotherly affection. Gradually, the petitioner started behaving indecently towards his daughter Subaida (respondent No. 2) who reported it to him. On this, he terminated the tenancy arrangement and sent the petitioner away from his house. Thereafter, the petitioner had been threatening his school going daughter from the road and elsewhere in various places. On 14-6-1982 his daughter did not return from the school. He made enquiries. Thereafter he complained to the Ernakulam Town South Police. On 3-8-82, the Police took respondent No. 2 from the petitioner's custody and produced her before the I Class Magistrate. The 2nd respondent is aged 15 years and four months. The petitioner had obtained the signature of respondent No. 2, on stamp papers. She was kept in unlawful custody by the petitioner till 3-8-1982. The fact that respondent No. 2 is pregnant is denied. In the affidavit filed by respondent No. 2 the fact that the petitioner had been staying as a tenant for five years and all of them were living in brotherly affection, is reiterated. It is stated that on 14-6-82 as she was coming from the school, the petitioner took her to some sirker office and got her signature in some register, the contents of which she did not know. When the Police produced her before the Magistrate on 3-8-1982 the petitioner got her signature on some paper prepared by him. Her date of birth is 3-4-1967. She denied that she was pregnant. She does not want to go with the petitioner. She was living with her parents of her own free-will.

7. We have looked into the application purported to have been filed by respondent No. 2 before the Magistrate. We do not think it necessary to make any strong observation? about that application. Suffice it to say that the said application on its face bears the imprint of untruth and its contents betray the sinister motives of the petitioner. We do not think it necessary to make strong observations on the averments in the petition filed by the petitioner before us either, though we have our own reservation about the truth of those averments, for the reason, that for the disposal of this petition, such observations are not necessary.

8. The short question for consideration in this revision petition is whether the court below was right in directing release of respondent No. 2 to respondent No. 1. We have no hesitation to hold that it was the only proper order that could have been passed in the circumstance of the case. In the face of the admission register from a Government High School showing the age of respondent No. 2 as 15 years and 4 months, a court would be abdicating its function if any other direction had been made in this case. The court below was perfectly justified in making the order directing release of respondent 2 to respondent 1. We confirm the order and dismiss the Criminal Revision Petition.

9. In view of this dismissal, no further order is necessary. Even so, in view of the apprehension expressed by the petitioner regarding the danger to respondent 2's life and the manner in which some medical bills and a certificate were furnished before us to substantiate the case that respondent 2 was advanced in pregnancy, we feel it necessary to express ourselves on the morality behind a case like this and to outline the duties of this Court in such cases. That respondent 2 is only 15 years and 4 months old cannot be disputed with the materials on record. According to the petitioner, the so-called marriage was on 14-6-1982. We refrain from saying anything about this marriage. But we cannot refrain from expressing our surprise at the submission made at the Bar how in August 1932 when this petition was presented before this Court, the girl could be five months pregnant from the loins of the petitioner, if the marriage was only in June. It is perhaps to explain this inconvenient predicament that the petitioner had to say in his petition that even before the marriage he and respondent 2 had been on intimate terms. The inference that the petitioner wants us to draw is that even before the alleged marriage he had intercourse with respondent 2 a minor. It is not for us in this case to consider the nature of the offence that results from this illicit relationship between the petitioner and a minor who was removed from the custody of her parents. We have looked into the medical certificate and the medical bills shown to us by the petitioner's counsel. They do not relate to respondent 2 Subaida. They relate to one Mrs. Sibi Kunjukunju. One of them is from Trivandrum. Perhaps the petitioner wanted to describe respondent 2 as his wife which accounts for the description of the girl as Mrs. Sibi. That one of them was from Trivandrum shows that the petitioner had been moving with the girl from place to place.

10. The petitioner's counsel made an impassioned plea before us on these materials to direct the girl to be medically examined to ascertain whether she was pregnant or not. The respondents' counsel readily agreed that she be subjected to medical examination. In the light of the materials before us, we felt that it was unnecessary to subject a girl, who along with her father had sworn to separate affidavits stating that she was not pregnant, to be medically examined and that at the request of one like the petitioner before us. More so, because, we are thoroughly satisfied that the case of the petitioner is absolutely false.

11. A person like the petitioner is not entitled to any assistance from a court of law. The petition before us is not one in the nature of a habeas corpus or of such a nature as would compel this Court to get the body of the person alleged to be detained produced before court. It was our anxiety to get at the truth that persuaded us at one stage to ask respondent 1 to appear in person before court and if necessary to direct production of the girl after his appearance. Now, we find that the respondents had not been keeping away from court. Now we find that the petitioner has approached this Court without any bona fides. The petitioner's counsel invited us to a decision of this Court in O. P. No. 3538 of 1982, where this Court had directed release of a girl who was 17 and a few months old with her lover and requested us to adopt that principle in this case also. Since that judgment was rendered in a hebeas corpus petition and the judgment does not contain any detailed discussion, we do not propose to go into it in detail. Our confirmed view in such cases is that the court acts as a pater families with a sacred duty to safeguard the interests and future of minor girls removed from lawful custody under lure of momentary pleasure. A girl of tender age easily falls an innocent prey when initiated into mysteries of sex. wayside Romeos invariably forsake such innocent girls once their lust is satisfied. No amount of love or infatuation displayed by such lovers towards a minor girl should persuade a court of law to act to the prejudice of the girl and to deny her parents their lawful custody, even if such a girl out of ignorance and innocence, agree to live with her lover and away with her parents. In such cases age should be the sole determining factor. The momentary sexual pleasure is bound to disappear before long. A faulty step by a court in such circumstances would always imperil the life of a minor girl and her future. Courts have a great duty in cases like this where the welfare and future of minor girls are involved. No lover actuated by amorous feelings can be a substitute for the natural love and affection of the parents. From the averments in the affidavits filed before us by respondents 1 and 2 we have no hesitation to say that the petitioner misused the affection extended to him and betrayed the trust reposed in him by respondent 1 as a neighbour for five years. To go to his aid and assistance and direct the minor girl of 15 years to his custody from the custody of the parents, would be a travesty of justice and would break up family ties and render an otherwise happy, home desolate. We are not in any case prepared to do so.

12. These petitions are devoid of all merits and we dismiss the same.


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