033-SLLR-SLLR-2005-V-1-AHAMED-vs.-SANJEEWA-AND-OTHERS.pdf
254
Sri Lanka Lav.' Repons
(2005) 1 Sri L. R.
AHAMEDVSSANJEEWA AND OTHERSCOURT OF APPEALBALAPATABENDI, J ANDIMAM J„
CAHB 03/2003JUNE 25ANDAUGUST 27^ 2004.
Writ of habeas corpus – Constitution, Articles 14 (1) and 141 – Code of CriminalProcedure Act, No. 15 of 1979, section 115(1) -Magisterial inquiry – Corpus isa major-Married – Muslim Law – Degree of proof – Does writ lie ?
The petitioner mother prayed for a writ of habeas corpus commanding therespondents to bring up the body of the 6th respondent (daughter).
At the Magisterial inquiry it was revealed that the 6th respondent had left herhome with her purported lover the 2nd respondent to whom she was legallymarried.
Held:The 6th respondent corpus has presented herself before the ChiefMagistrate's Court, and given details as to how she left the parentalhome and subsequently got married to the 2nd respondent. The 2ndrespondent however had denied having married the corpus.
As the corpus is a major, if she was misled into marriage on a falsepretext, she is free to seek legal remedies in this matter.
The petitioner in any event has not established the fact that therespondents are unlawfully detaining the 6th respondent corpus.
A Muslim girl is freed from patria potestas on attaining 16 years of ageand her father is not entitled to claim custody of her, against her will.
APPLICATION for a writ of habeas corpus.
CA
Ahamed vs
Sanjeewa and others (Imam, J.)
255
Cases referred to :
Haniffa vs Razak – 68 NLR 288
Kadippilige Seetha vs A. E. Saravanathan and others – (1986) 2 Sri LR 228
N.M. Shahid with M. I. M. Azver for petitioner.
Sampath Gamage for 2nd respondent.
Jiffery Zainudeen for 4th respondent.
Kuvera de Zoysa for 1st and 5th respondents.
S. K. Wickramarachchi, State Counsel for 7th and 8th respondents.
Cur.adv. vult
December 17,2004 '
IMAM, J.
The petitioner instituted an application on or about 28.07.2003 prayingfor a mandate in the nature of a Writ of Habeas Corpus commanding the1st to 5th respondents to bring up the body of the 6th respondent corpusFathima Roshana Ahamed before this Court, and to deal with her accordingto law. The petitioner further prays that this Court directs the Director ofthe Criminal Investigation Department to investigate as to the whereaboutsof the 6th respondent corpus and produce the corpus before this Court assoon as possible. This application has been made under Article 141 of theConstitution of the Democratic Socialist Republic of Sri Lanka. Severalrespondents filed objections. The petitioner who is the mother of thecorpus in her application has pleaded inter alia that the corpus is theeldest of her four children, was born on 25.09.1984, and during the relevantperiod namely 20.04.2003 was 18 years and 7 months old. The petitioner’shusband Brian Shabeer Ahamed is presently employed as a Logistic cumSales Manager of Ceylon Agro Ltd. The petitioner states in her petitionthat on or about 20.04.2003, the petitioner on waking up at approximately4.30 a m. went to the room of the corpus and found her missing. Thepetitioner further points out that on inquiries being made from theneighborhood, apparently the corpus had left the house at night. Inquiriesfurther revealed that a blue coloured car had been parked outside theirresidence during the night. The petitioner further states that on examinationof the bedroom of the corpus they found a mobile phone chip bearing No.072-819135. Upon further search her husband realised that the aforesaid
256
Sri Lanka Law Reports
(2D05) 1 Sri L. R.
phone belongs to the 1st respondent. The petitioner stated that her husbandimmediately lodged a complaint at the Narahenpita Police Station withregard to the disappearance of their daughter. A certified copy of thecomplaint has been marked as P1. Subsequently the petitioner and herhusband went to the 1st respondent's house at Kelaniya. on which occasionthe 5th respondent it is alleged asked them not to make a big noise, andapparently the 5th respondent had left the house. While conversing with the5th respondent, the petitioner points out that the 1 st respondent rang him,and from the tone of the conversation, it appeared that the corpus had beentaken away by the 1st respondent. Consequently the 5th respondentpromised the petitioner and her husband that he would bring the 6threspondent corpus to their house during the course of the day, which hefailed to do. Subsequently the petitioner's husband lodged a further statementat the Narahenpita Police Station at 23.00 hours on 20.04.2003, a certifiedcopy of which is marked as P2.
The petitioner further states that on or about 23.04.2003, the 7threspondent instituted proceedings at the Colombo Chief Magistrate's Courtin case bearing No. B 1164/3 under section 115(1) of the Code of CriminalProcedure Act, No. 15 of 1979 as amended, and moved for a warrant toarrest the 1 st respondent for the reasons set out in the B' report markedas P3. Although the petitioner and her husband were unaware of thisdevelopment, the petitioner alleges that the 1 st respondent appeared inCourt with the 6th respondent corpus. The 1 st respondent was representedby counsel who submitted that the 1 st respondent had not kidnapped nordetained the corpus by force, and it was further submitted that the 6threspondent had left her home with her purported lover, the 2nd respondentto whom she was lawfully married. Thereafter the 6th respondent corpusgave evidence, where she stated that she was 18 years old on 20.04.2003,she had left home with the 2nd respondent and married him on 22.04.2003at Kotahena. She further said that she came to Court at the instance ofthe 5th respondent. She indicated that the 2nd respondent was employedas an Artist in the “Sunday Obsen/er’’. The evidence of the 6th respondentcorpus is marked as P5. Subsequently the Police Officer attached to theNarahenpita Police Station informed Court that he was not proceedingwith the said case and requested the learned Magistrate to direct the 1 stand 6th respondents to make a statement to the Narahenpita Police.Accordingly the learned Magistrate made order terminating the proceedings
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Ahamed vs
Sanjeewa and others (Imam, J.)
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and discharged the 1 st respondent. The petitioner further stated that the1 st respondent made a statement on 23.04.2003 at the Police Post of theColombo Magistrate’s Court stating that he knew the father of the 6threspondent having met him when he wanted to secure foreign employment.The 1 st respondent stated that he neither helped the 6th respondent to gowith her lover, nor did he detain her, nor provide the 6th respondent and herlover with shelter. He furthermore stated that the father of the 6th respondenthad made a false complaint against him, a certified copy of which is markedas P7.
The petitioner further states that the 6th respondent corpus too madea statement to the aforesaid Police Post on 23.04.2003 a certified copy ofwhich is marked as P8. In this statement she stated that she got marriedto her lover the 2nd respondent and that she was not prepared to divulgeher address for safety reasons. She stated’that she eloped with the 2ndrespondent in the early hours of 20.04.2003 from her residence andsubsequently married him on 22.04.2003 at Kotahena which is proved byMarriage Certificate bearing N. 3967. The said marriage she claims waswitnessed by the 3rd and 4th respondents. She further states that she isliving with her husband the 2nd respondent, and she expressed a fear thather father might cause harm to them. The petitioner states that on thesame day namely 23.04.2003 at 10.45 a.m. she made a similar statementto the Narahenpita Police, a true copy of which is marked as P9, and acertified copy of the Marriage Certificate which is marked as P10respectively.
The petitioner’s position was that on making further inquiries withregard to the police statements, she came to know that the 2nd respondentdenied that he ever got married to the 6th respondent corpus and that henever knew the corpus. Thereupon she prevailed on the 7th respondent toconduct further inquiries. Strangely enough the 2nd respondent in hisstatement to the Narahenpita Police on 06.05.2003 stated that he wasemployed at Lake House, never went out of his place of employment on
and never married the 6th respondent corpus. He further statedthat he wished to marry one Chamindi Ranatunga the next year. A certifiedcopy of this statement is marked as P11. Moreover the witness to themarriage namely the 4th respondent, in his statement to the NarahenpitaPolice a certified copy of which is marked as P12 stated that the personwho appeared as the bridegroom on 22.04.2003 was not the 2nd respondent.
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Sri Lanka Law Reports
(2005) 1 Sri L. R.
The petitioner complained that she received an anonymous phonecall at midnight admonishing and threatening her, and since this call sheis suffering from mental trauma fearing danger to the 6th respondent corpus.A certified copy of her complaint to the Narahenpita Police is marked as P13.
Under the aforesaid circumstances the petitioner is seeking a mandatein the nature of a Writ of Habeas Corpus as mentioned earlier.
Article 141 of the Constitution states as follows: “ The Court of AppealJj»^y grant and issue orders in the nature of Writs of Habeas Corpus tobring up before such Court.
the body of any person to be dealt with according to law ; or
the body of any person illegally or improperly detained in public or
private custody”
This Court examined the petition, the objections filed by therespondents, and the written submissions tendered by the parties.
The 6th respondent corpus is by the petitioner's own admission, anin her own evidence before the Magistrate, a major and thus entitled to thebenefit of Article 14(1 )(h) of the Constitution which states that “Every citizenis entitled to (h) the freedom of movement and of choosing his residence
within Sri Lanka" Although this Court tends to extend some sympathy
towards the petitioner, the question to be considered is whether thepetitioner can obtain any relief from this application. The petitioner's ownpetition does not concede the fact that the 6th respondent corpus is heldin the custody of the respondents and thus prayer (a) of the petition cannotbe maintained. The petitioner has further failed to satisfy Court as to inwhich manner the 6th respondent corpus should be dealt with accordingto law.
The 6th respondent corpus on the contrary has presented herselfbefore the Chief Magistrate’s Court, Colombo and given details as to howshe left her parental home, and subsequently got married to. the 2ndrespondent. The 2nd respondent subsequently denied having married thecorpus, which fact is corroborated by the 4th respondent. As the corpusis a major if she was misled into a marriage on a false pretext, she is free
CA
Ahamed vs259
Sanjeewa and others (Imam, J.)
to seek legal remedies iri this matter. The petitioner has not establishedthe fact that the respondents are unlawfully detaining the 6th respondentcorpus. The complaint made to the Police by the petitioner’s husband,marked "P2" illustrates that the corpus has informed her father of herunwillingness to come back home due to the fear that her father wouldassault her. This is manifested by the father stating himself that on
the 6th respondent corpus said that “®®SS®
25id<;dc3ss{ 25ty ©jQO 0033255 dstei S)cs<3”
The petitioner and the 6th respondent corpus being Muslims aregoverned by the Muslim Law. In the case of HanifaVs Razak(1) it washeld that as a Muslim girl is freed from Patria Potestas on attaining 16years of age, and her father is not entitled to claim custody of her againsther will. In the case of Kodippilige Seetha vs A. E. Saravanathan andothers(2>, the Court held that an allegation which if true would amount to acrime, should be proved beyond reasonable doubt. This is a cardinal principleof criminal law, and in this case the fact that the mobile phone with thechip bearing No. 072-819135 as belonging to the 1st respondent has notbeen proved beyond reasonable doubt by the petitioner. The petitioner hasfailed to prove beyond reasonable doubt that the 6th respondent corpus isin the custody of the 1st to 5th respondents. Furthermore the 6threspondent corpus in her evidence could have mentioned any allegationagainst the 1st to 5th respondents, which she failed to do. Under thesecircumstances, the only conclusion this Court can arrive at, is that the 6threspondent corpus had nothing to say against the 1 st to 5th respondents.However is accordance with the judgment in Kodippilige Sita vsSarvananthan, (supra) the mere denial by the respondents of the detentionof the corpus does not prevent this Court from proceeding to consider thefacts in order to decide that question.,
Having considered the facts and connected matters in this case, forthe aforesaid reasons, I am of the view that the petitioner has failed toprove that she is entitled to a habeas' corpus remedy as prayed for inprayer (a) of her petition. Hence I dismiss the application of the petitionerwithout costs.
BALAPATABENDI, J. -1 agree,Application dismissed.