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Judgment
Arunachalam, J.—Writ petitioner Thangaraj Udayar is the father of Thenmozhi, whose production before this Court to be set at liberty, has
been sought for.
Facts which led to the filing of the writ petition will have to be narrated in brief. Thenmozhi stated to be aged about 19 years was allegedly
kidnapped by third respondent Sakthivel on 27th April, 1992. On a complaint of the writ petitioner to the second respondent, Inspector of Police,
Veeraganur Police Station, Salem District, Crime No. 126 of 1992, u/s 363 Indian Penal Code was registered, against the third respondent. While
investigation was pending, it appears that Thenmozhi and Sakthivel (R.3) appeared before Inspector of Police, Veeraganur Police Station (R.2) on
8.5.1992. Thereafter a petition was filed by the writ petitioner before Judicial Magistrate No. 1 Attur for custody of his daughter, Thenmozhi.
Custody prayed for by the writ petitioner was ordered. Radiological examination of Thenmozhi revealed that she was aged above 19 years and
was below 20 years.
While so, third respondent who got himself released on bail in Crime No. 126 of 1992, preferred a petition before the same Magistrate,
pleading for the custody of the girl Thenmozhi, alleging that he had married her on 10th April, 1992, before the Registrar of Marriages, Salem.
Learned Counsel for third respondent has produced before us, the true extract of the Marriage Register maintained by the Marriage Registrar,
Salem. Serial Number of this marriage is 240 of 1992. It appears that the writ petitioner did not produce Thenmozhi before the Magistrate in spite
of directions for some length of time and ultimately chose to produce her on 5.8.1992, before court. The second respondent appears to have felt
the need for recording of a statement under S. 164, Cr.P.C. from Thenmozhi, in view of the assertion of the third respondent, that Thenmozhi was
kept under wrongful confinement, against her wish by the writ petitioner. The learned Magistrate, if he had also felt that there was a need to record
a statement under S. 164, Cr.P.C, could have exercised his judicial discretion by directing her production, on a specified date for the said purpose.
Unfortunately, the Magistrate had chosen to forward Thenmozhi to the Protective Home for Destitute Women situated at Asthampatli, Salem,
pending recording of a statement under S. 164, Cr.P.C. The learned Magistrate fixed 11.8.1992 as the date for recording the statement of
Thenmozhi.
Meanwhile the writ petitioner chose to invoke our powers under Art. 226 of the Constitution of India on 6.8.1992, on the ground that the
impugned order of the Magistrate directing detention of Thenmozhi in the Protective Home for Destitute Women was illegal and in effect would
amount to confinement against her will for, she had already been entrusted to the custody and care of her father, after examination by the same
Magistrate on 8.5.1992.
Kailasam, J., (as he then was) In Re Muthuswami, Maheswaran, In Crl.M.P.No.4290 of 1980 and one of us (Arunachalam, J) in Mariappan v.
State 1989 L W (Crl.) 43 have categorically held, that there appeared to be no provision under the Code of Criminal Procedure warranting
detention of girls placed in the position of Thenmozhi, in Destitute Homes. Apparently the object is that victims of offences, placed similarly as
Thenmozhi should not be afforded opportunities to mingle and associate with elements not desirable, who are usually sheltered in protective,
Rescue or Destitute Homes. These shelters usually are intended to house offenders under the Suppression of Immoral Traffic Act and probably
other offenders as well. Generally there is no segregation of different classes of offenders, and naturally these Institutions may not be conducive for
the welfare of victims of crimes.
In spite of this Court having held that persons placed in the position of Thenmozhi, should not be directed to be kept in Homes intended for
Destitute Women, it appears rather strange, that learned Magistrate had chosen to pass an order contrary to law and against almost settled legal
position. It is under those circumstances, that we directed production of Thenmozhi before us yesterday (10.8.1992). For reasons beyond control
of respondents 1 and 2, Thenmozhi could not be produced before us yesterday. However, second respondent Inspector of Police, Veeraganur
Police Station, undertook to produce Thenmozhi before us today and accordingly Thenmozhi is before us now. In W.M.P. No. 16746 of 1992
preferred by Sakthivel, praying for his being impleaded as one of the respondents in the main writ petition, we allowed his plea. Mr. Dinakaran,
learned Counsel appearing on behalf of third respondent stated that Sakthivel had married Thenmozhi on 30.4.1992 and has also produced before
us the extract of the Marriage Register, which we have referred to a little earlier.
We questioned Thenmozhi, after satisfying ourselves that she is a major, her date of birth being 10.5.1973 as recorded in the Government High
School, Theydavour, Attur Taluk, Salem District. The extract of the marriage register shows her dale of birth as 15.3.1972. In any event without
doubt, she is a major and she is entitled to decide about her future. She has stated before us that she was forcibly taken away from her parent''s
house, during night time by the 3rd respondent. She did not join the third respondent out of her own free will. Much against her wish, she was
compelled to undergo a form of marriage before she was taken to the Marriage Registrar at Salem, without her consent and she is now claimed to
be the wife of third respondent. In spite of our persistent questioning, she stated that she was not willing to join the third respondent, but was
anxious to continue in the affectionate custody of her parents. She stated before us that she has an elder sister who is already married and younger
brother who is staying with her. Her parents are not keeping her in wrongful confinement. She has got freedom of movement. She is permitted to
act on her volition.
Now that Thenmozhi has categorically staled before us that she desires to be with her parents and none else inclusive of the third respondent,
she can act as she desires. She can go along with her father, the writ petitioner from this court hall. There will be no need henceforth for recording
any statement under S. 164 Cr.P.C from her by the Judicial Magistrate, Attur. The third respondent shall not directly or indirectly pressurize the
victim girl, to somehow or other take her back in the claimed matrimonial fold. If need arises or the third respondent is anxious or the writ
petitioner is so desirous, both of them can seek for appropriate remedies before the matrimonial court. This writ petition is allowed. The impugned
order of Judicial Magistrate No. 1, Attur dated 5.8.1992 directing custody of Thenmozhi, in the Protective Home for women, Asthampatti Salem,
is set aside. She is set at liberty.