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Alfiya vs State Of Kerala on 25 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940

WP(Crl.).No. 73 of 2019

PETITIONER:

ALFIYA
AGED 30 YEARS
D/O. NAJUMINIZA, PRESENTLY RESIDING AT ALFIYA
MANZIL, CHANDANATHOPPU P.O, KUZHIYAM CHERRY,
PERINADU VILLAGE, FROM NASIM NIVAS,
THRIKKOVILVATTAM VILLAGE, KANNANALLOOR P.O,
KOLLAM DISTRICT.

BY ADV. SRI.V.VENUGOPALAN NAIR

RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682 031

2 THE DISTRICT POLICE CHIEF.
KOLLAM-691 001

3 THE INSPECTOR SHO OF POLICE
KANNANALLOOR POLICE STATION, KOLLAM DISTRICT-
691 001
W.P.(Crl) No.73/2019
-:2:-

4 THE CIRCLE INSPECTOR OF POLICE
KOTTIYAM, KOLLAM DISTRICT.-691 001

5 NASSIMUDEEN
AGED 45 YEARS, S/O. P.A. ABDUL LATHEEF, NASIM
NIVAS, THRIKKOVILVATTAM VILLAGE, KANNANALLOOR
P.O, KOLLAM DISTRICT-691 001.

6 NAVAS
AGED -, S/O. P.A. ABDUL LATHEEF, PUTHEN VEEDU,
KANNANALLOOR P.O, THRIKKOVIL VATTAM VILLAGE,
KOLLAM DISTRICT-691 001

7 SHIHAB
AGED S/O. P.A. ABDUL LATHEEF, S.S. PARADISE
KANNANALLOOR, P.O THRIKKOVIL VATTAM VILLAGE,
KOLLAM DISTRICT-691 001

8 NASSILA
D/O. AMINA BEEVI, NAZ VILLA, PALLIMUKKU P.O,
KOLLAM DISTRICT-691 005

OTHER PRESENT:
SR.GP.SRI.K.B.RAMANAND

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl) No.73/2019
-:3:-

C.K. ABDUL REHIM

T.V. ANILKUMAR, JJ.
—————————————————–
W.P.(Crl) No. 73 OF 2019 S
——————————————————-
Dated this the 25th day of February, 2019

JUDGMENT

Abdul Rehim, J.

Mother of a girl named Hanna, aged 14 years, is the

petitioner herein, seeking a writ of Habeas Corpus for

commanding production of the corpus of the minor girl and to

order her release from the alleged illegal detention of the

respondents 5 to 8, subject to any orders which may be passed

by the Family Court, Kollam in OP(GW)No.1186/2018, filed by

the 5th respondent before that court.

2. Brief facts are as follows. The 5th respondent is the

father of the minor girl, who is alleged to be suffering from

psychological problem of ‘Bipolar Affective Disorder’. The

petitioner and the 5th respondent are living separated since
W.P.(Crl) No.73/2019
-:4:-

22.06.2018. The minor girl was stated to be in the custody of

the petitioner. She was studying in the 8 th standard in a school

owned by the brothers of the 5th respondent. It is stated that on

an earlier occasion on 24.09.2018, the respondents 6 to 8 have

taken forcible custody of the minor girl from the petitioner.

According to the petitioner, based on a complaint lodged before

the police authorities at Kottiyam, Police Station, the girl was

sent along with the petitioner, after ascertaining her choice.

3. According to the petitioner, she came to know about

the fact that the 5th respondent had filed OP 1186/2018 before

the Family Court, Kollam with respect to custody of the minor

child, only when the counsel appearing for the 5 th respondent in

MC 287/2018 before the Family Court had disclosed about the

same. It is stated that, on 30.01.2019 the minor girl was again

taken forcible custody by the 5th respondent and his mother,

from the school, at the instance of the brothers of the 5 th

respondent. Even though the petitioner had lodged a complaint
W.P.(Crl) No.73/2019
-:5:-

before the police, it is alleged that, no effective action was

taken. Alleging that the minor girl is now being illegally detained

by the respondents 5 to 8, the above writ petition is filed.

4. Questions as to, who was in custody of the minor girl,

whether the allegations of forcible custody is correct or not,

who among the parents of the minor girl is the best suitable

person to have custody of the minor girl etc. are matters which

require adjudication, based on factual materials and evidence.

The appropriate court having jurisdiction under the Guardians

and Wards Act is the Family Court. Evidently, there is already a

litigation pending before that court with respect to custody of the

minor girl. The petitioner ought to have approached the said

court seeking appropriate relief, if the allegations are true.

5. However, as far as the jurisdiction vested on this

court is concerned, we do not find any extraordinary

circumstances existing, apart from the rival claims of the

parents of the minor girl with respect to entitlement for custody.
W.P.(Crl) No.73/2019
-:6:-

In order to invoke the parens patriae jurisdiction, vested on this

court, we are of the opinion that, the petitioner has to approach

the Family Court to seek appropriate remedy. We do not find

any ground to hold that the child is being kept under illegal

custody, because the 5th respondent is the biological father of

the minor girl.

6. Under the above mentioned circumstances, this court

is reluctant to interfere. Hence the above writ petition is hereby

dismissed, with liberty reserved to the petitioner to approach the

Family Court seeking appropriate reliefs.

Sd/- C.K. ABDUL REHIM, JUDGE.

Sd/- T.V. ANILKUMAR, JUDGE.

ul/-

[True copy]
P.S. to Judge.

W.P.(Crl) No.73/2019
-:7:-

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE AVAILABLE TREATMENT
RECORD OF THE 5TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE COMPLAINT DTD.

26.9.18 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT C.I. OF
POLICE KOTTIYAM.

EXHIBIT P3 A TRUE COPY OF THE COMPLAINT LODGED BY
THE PETITIONER BEFORE THE 4TH
RESPONDENT C.I. OF POLICE KOTTIYAM DTD
30.1.19

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