IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940

WP(Crl.).No. 29 of 2019

PETITIONER:
ANJU PAPPACHAN,
AGED 28 YEARS,
D/O.PAPPACHAN.S.,
CHARUVILA VEEDU,
OZHUKUPARACKAL P.O.,
MAKKULAM, PERUNGALLOOR, EDAMULACKAL VILLAGE,
AYOOR, KOLLAM DISTRICT.

BY ADV. SRI.ANCHAL C.VIJAYAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF HOME AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM – 695 001.

2 THE SUPERINTENDENT OF POLICE,
KOLLAM RURAL, KOTTARAKKARA P.O.,
PIN – 691 506.

3 THE STATION HOUSE OFFICER,
CHADAYAMANGALAM POLICE STATION,
CHADAYAMANGALAM P.O.,
KOLLAM DISTRICT, PIN – 691 534.

4 SOBY JOHN,
D/O.THANKACHEN K.M.,
NO.177, BREEZE GARDEN,
ATHIPALAYAM, OPPOSITE RANGANATHAN ENGG COLLEGE,
COIMBATORE, TAMIL NADU, PIN – 641 110.

R1 TO R3 BY SR.GOVT.PLEADER SRI.K.B.RAMANAND
R4 BY ADV.SRI.NOBEL RAJU

OTHER PRESENT:

THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 29 of 2019 : 2 :

JUDGMENT

C.K.ABDUL REHIM, J.

The mother of a minor girl, allegedly aged 5 years,

named Charis Sony, is the petitioner herein, seeking a writ of

Habeas Corpus for directing production of the minor child and

to hand over custody to her, based on an allegation that the

minor child is under illegal detention of the 4 th respondent,

who is the sister of the father of the child.

2. Brief averments are that, the marriage between the

petitioner and Sri.Sony John, who is the brother of the 4 th

respondent, was solemnized on 28.6.2012 and the above

said minor child was born out of their wedlock, on 2.4.2013.

Marital life between the petitioner and her husband was not

cordial. They got separated on 21.7.2018, when the

petitioner along with the child started residence at her

parental home. According to the petitioner, the child was
WP(Crl.).No. 29 of 2019 : 3 :

admitted in U.K.G. at a school at Anchal, with effect from

11.9.2018. It is admitted that the petitioner had instituted

various litigations against her husband before the Family

Court, Kottarakkara, for getting maintenance for herself and

the child, seeking dissolution of the marriage and for return of

gold ornaments, as M.C.No.405/2018, O.P.

(Divorce)No.634/2018 and O.P.No.635/2018, respectively. It

is stated that the petitioner is an experienced Fashion

Designer and she went to Abu Dhabi in search of job on

29.11.2018, after entrusting the minor child with the parents

of the petitioner. Allegation is that, on 21.12.2018 at about

5.00 p.m., the 4th respondent along with two other persons

trespassed into the parental home of the petitioner and

kidnapped the minor child in a car. It is stated that, based on

a complaint made by the parents of the petitioner, the 4 th

respondent and others along with the child was taken into

custody by the police. But the police had handed over

custody of the child to the 4 th respondent, without registering

any case. Knowing about this, the petitioner came back on

29.12.2018 and approached the police authorities and
WP(Crl.).No. 29 of 2019 : 4 :

insisted for registering a case. Accordingly, the 3 rd

respondent had registered Ext.P3 case for offences

punishable under Sections 363 and 34 of the I.P.C. on

7.1.2019. Alleging that the 4 th respondent is detaining the

minor child illegally since 21.12.2018, the above writ petition

is filed.

3. When the above writ petition came up for

consideration, this court issued notice to the 4 th respondent

through special messenger. Report of the messenger is to

the effect that, when he made attempts to serve notice on the

4th respondent in the flat where she is residing, he was

threatened and driven away by the owner of the flat.

Therefore the messenger could not effect service of notice on

the 4th respondent.

4. When the case was taken up for consideration on

today, the 4th respondent appeared in person. She is also

represented through a lawyer. The father of the minor child,

who is the husband of the petitioner, is also personally

present along with the child. Counsel appearing for the 4 th

respondent submitted that, the child is in the custody of its
WP(Crl.).No. 29 of 2019 : 5 :

father at Coimbatore and the child is admitted to a school

therein. According to the 4th respondent, the child was taken

custody from the maternal grand parents, at a time when the

petitioner had left to Bangalore by leaving the child in the

custody of the grand parents. It is submitted on behalf of the

4th respondent that the child was handed over custody to its

father by the maternal grand parents. It is further submitted

that, the father of the child had already instituted a case

before the Family Court at Coimbatore, seeking declaration of

guardianship and custody of the child, as GW

O.P.No.45/2019.

5. Learned Government Pleader appearing on behalf

of respondents 1 to 3 submitted on instructions from the 3 rd

respondent that, based on a statement given by the father of

the petitioner a case was registered as Crime No.28/2019

under Sections 363 and 34 of I.P.C. with respect to the

alleged kidnapping of the child on 21.12.2018 by the 4 th

respondent and her husband. It is mentioned that, the

investigation of the said case is under progress. Enquiry

conducted so far had revealed that, the child was taken
WP(Crl.).No. 29 of 2019 : 6 :

custody from the maternal grand parents by the 4 th

respondent along with the father of the child. It is also

revealed that the child is now in the custody of its father at

Coimbatore, in the address of the 4 th respondent shown in the

above writ petition.

6. We directed the 4th respondent and the father of

the child to hand over custody of the child to the petitioner for

sometime, from the morning till the afternoon. Thereafter the

child was returned custody to the father Sri.Sony John, as

directed by this court.

7. From the circumstances as mentioned above, we

are convinced that the minor child is in the custody of its

father and the allegation that the 4 th respondent is keeping

custody of the child illegally, is not true and correct. Question

to be considered is whether there exists any exceptional

circumstances for this court to invoke the Parens patriae

jurisdiction, to direct the father of the child to hand over

custody to the petitioner/mother. Case of the petitioner is that

the child was forcibly taken custody from the maternal grand

parents by the 4th respondent. Contention of the 4th
WP(Crl.).No. 29 of 2019 : 7 :

respondent that the child was given custody to its father by

the maternal grand parents. The version put forth by the 3 rd

respondent is also supporting this. Evidently there exists

matrimonial disputes between the parents of the child, with

respect to which litigations are pending before the Family

Court at Kottarakkara. Now it is submitted by the 4 th

respondent that there is a case instituted by the father of the

child under the Guardians and Wards Act, before the Family

Court at Coimbatore.

8. Under the above mentioned circumstances, in

order to decide the question as to who among the parents is

the best suitable person to be entrusted with custody of the

minor, considering the welfare and interest of the child, an

elaborate adjudication is required. Such an adjudication can

only be undertaken by an appropriate court having jurisdiction

under the Guardians and Wards Act. It will not be

appropriate on the part of this court to issue any direction in

this regard without a proper adjudication, especially when we

could not find that the child is under illegal custody.

Admittedly the child was in custody of the petitioner till
WP(Crl.).No. 29 of 2019 : 8 :

21.12.2018. If the petitioner has got a case that the child was

taken forcible custody, either by the 4 th respondent or by the

father of the child, from the petitioner’s parents, from their

house in Kollam District, it is left open to the petitioner to

approach the appropriate court having jurisdiction seeking

permanent custody of the child. It will also be left open to the

petitioner to seek appropriate interim relief in such a petition if

filed, for getting interim custody of the child during pendency

of such original petition. We think it appropriate to relegate

the matter to be decided by the Family Court having

jurisdiction.

9. Therefore, the above writ petition is hereby

dismissed by relegating the petitioner to seek appropriate

relief before the Family Court having jurisdiction in the matter.

The child is permitted to be in the custody of its father,

Sri.Sony John, until appropriate order is passed by any

Family Court having jurisdiction in the matter. It is made clear

that if any interim application with respect to custody is filed

before the Family Court having jurisdiction, that court shall

pass appropriate orders taking note of the prime
WP(Crl.).No. 29 of 2019 : 9 :

consideration, which is the welfare and interest of the child,

without any further delay.

Sd/-

C.K.ABDUL REHIM
JUDGE

Sd/-

T.V.ANILKUMAR,
JUDGE

Bb
WP(Crl.).No. 29 of 2019 : 10 :

APPENDIX

PETITIONER’S/S EXHIBITS:

EXHIBIT P1 COPY OF THE BIRTH CERTIFICATE OF
CHARIS SONY, DAUGHTER OF THE
PETITIONER

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED
BY THE PRINCIPAL, ST.GEORGE CENTRAL
SCHOOL, ANCHAL.

EXHIBIT P3 TRUE COPY OF THE FIR IN CRIME NO.

28/2019 OF CHADAYAMANGALAM POLICE
STATION.

EXHIBIT P4 TRUE COPY OF THE PETITION SUBMITTED
BY THE PETITIONER TO THE DEPUTY
SUPERINTENDENT OF POLICE, PUNALUR
DATED 31.12.2018.

RESPONDENTS’ EXHIBITS:

NIL

//True Copy//

P.A. To Judge

Bb