IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

WP(Crl.).No. 35 of 2019

PETITIONER:
ARSHA S. ANIL,
AGED 22 YEARS,
D/O.SULAJA, KARUVANNUKARAM HOUSE, KADUPPESSERY P.O.,
NAMBIKUNNU, THRISSUR – 680 698

BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM – 695 014

2 THE DISTRICT POLICE CHIEF,
OFFICE OF THE DISTRICT POLICE CHIEF,
THRISSUR – 680 003

3 DEPUTY SUPERINTENDENT OF POLICE,
OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,
CHALAKUDY – 680 307

4 THE CIRCLE INSPECTOR OF POLICE,
OFFICE OF CIRCLE INSPECTOR OF POLICE,
MALA – 680 732

5 THE SUB INSPECTOR OF POLICE,
ALUR POLICE STATION, THRISSUR – 680 683

6 SANISH,
AGED 28 YEARS,S/O.SURESH,
KORATTIPARAMBIL, EDATHIRINJI, EDATHIRINJI P. O.,
THRISSUR – 680 122

R1 TO R5 BY SR.GOVT.PLEADER SRI.K.B.RAMANAND
OTHER PRESENT:

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 35 of 2019 : 2 :

JUDGMENT

Mother of a minor child, allegedly aged 2 ½ years, is the

petitioner herein, seeking a writ of Habeas corpus for directing

production of the corpus of the child and to hand over custody to

her, based on the allegation that the child is being illegally

detained by the 6th respondent, who is none other than the

biological father of the child.

2. Averments are to the effect that, the marriage between

the petitioner and the 6th respondent was on 22.4.2015 and the

child was born out of the wedlock on 31.5.2016. The 6 th

respondent had allegedly ill treated the petitioner and there arose

some matrimonial disputes. Admittedly by the petitioner, a co-

worker of the 6th respondent by name Shri.Nibin used to interfere

in the disputes between the petitioner and the 6th respondent. It is

alleged that, the petitioner and the minor child were driven out of

the matrimonial home by the 6 th respondent on 30.10.2018. She

came to her parental home along with the child. According to the

petitioner, her parents had persuaded her to re-join in matrimony

with the 6th respondent. It is stated that, under their compulsion,
WP(Crl.).No. 35 of 2019 : 3 :

the petitioner along with the child had returned to the petitioner’s

home on 26.12.2018. On the way, when she contacted the 6 th

respondent over telephone, the 6th respondent had allegedly

intimidated her and restrained her from coming back to his home.

According to the petitioner, then she called Shri.Nibin for help,

who had taken the petitioner and the child along with him.

According to the petitioner, Shri.Nibin had informed about this to

the 5th respondent, who in turn summoned the 6 th respondent to

the Station House on 28.12.2018. Rival claims were raised

before the 5th respondent for the custody of the minor child, by the

petitioner as well as by the 6th respondent. According to the

petitioner, a truce was reached at the police station, in which

custody of the minor child was handed over to the parents of the

petitioner. Accordingly they have taken the child to the parental

home of the petitioner at Sasthamcotta. It is alleged that, on

11.1.2019, the 6th respondent had clandestinely taken the child to

his house, from the parental home of the petitioner. Admittedly

the petitioner is now living along with Shri.Nibin from 26.12.2018

onwards. It is stated that, the petitioner had lodged a complaint to

the 5th respondent with respect to action of the 6 th respondent in
WP(Crl.).No. 35 of 2019 : 4 :

taking custody of the child. Alleging that the police is not taking

any action and that the 6th respondent is illegally detaining the

minor child, the above writ petition is filed.

3. From the averments itself it is evident that, the spouses

had no cohabitation since 30.10.2018. It is further admitted that

the petitioner is now living together with a third person, since

26.12.2018. According to the petitioner, custody of the minor child

was given to the parents of the petitioner on 28.12.2018. But the

6th respondent/father had taken custody of the child from the

parents of the petitioner on 11.1.2019.

4. Question to be considered is whether custody of the

child with its biological father will amount to an illegal detention.

Prima facie, we are not convinced that such a finding could be

arrived in the circumstances of this case. Contention raised by

learned counsel for the petitioner is that, the girl child of tender

age requires care and protection of the mother, especially

because of some illness of the child which is pointed out.

Custody of the child with the 6th respondent will be detrimental to

the welfare, well being and interest of the minor, is the contention.

As stated above, the petitioner herself had parted with custody of
WP(Crl.).No. 35 of 2019 : 5 :

the minor child since 28.12.2018 and she is living together with a

third person. Under such circumstances, who is the best suitable

person among the parents to have custody of the child,

considering the prime consideration of the welfare of the child, is

a question which need to be adjudicated and decided by the

appropriate court having jurisdiction under the Guardians and

Wards Act.

5. Learned counsel for the petitioner had pointed out a

decision of this court in W.P.(Crl.)No.382/2008 (judgment dated

9.1.2009) to canvass the proposition that, in exceptional

circumstances, the High Court exercising jurisdiction under Article

226 of the Constitution, in a petition filed seeking a writ of Habeas

corpus, can assume the role of Parens patriae and is entitled to

pass appropriate orders taking note of the prime consideration, in

the matter of custody of minor child. But from the facts narrated

as above, we do not think there exists any exceptional

circumstances or emergent need in the case at hand for

protecting the welfare of the child. We are of the opinion that

there is no imminent danger or detriment which will be caused

with respect to the welfare of the child if the child is continued in
WP(Crl.).No. 35 of 2019 : 6 :

custody of its biological father.

6. Under the above mentioned circumstances, we refuse

to exercise the discretionary jurisdiction vested on this court. We

think it only appropriate to relegate the parties to sort out their

rival claims with respect to custody of the child, to the appropriate

court.

Hence the above writ petition is hereby dismissed by

reserving liberty to the petitioner to approach the appropriate

court under the Guardians and Wards Act.

Sd/-

C.K.ABDUL REHIM
JUDGE
Sd/-

T.V.ANILKUMAR
JUDGE
Bb
WP(Crl.).No. 35 of 2019 : 7 :

APPENDIX

PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SECONDARY SCHOOL
LEAVING CERTIFICATE DATED 26.04.2012 OF
PETITIONER

EXHIBIT P2 TRUE COPY OF THE BIRTH CERTIFICATE DATED
08.05.2015 OF PETITIONER

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF
REGISTRATION OF MARRIAGE DATED
29.06.2016 AS BETWEEN PETITIONER AND 6TH
RESPONDENT WITH THE LOCAL AUTHORITY

EXHIBIT P4 TRUE COPY OF THE BIRTH CERTIFICATE DATED
27.06.2016 OF DAUGHTER OF PETITIONER

EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED
18.01.2019 BY PETITIONER BEFORE 5TH
RESPONDENT

RESPONDENTS’ EXHIBITS:

NIL

//True Copy//

P.A. To Judge

Bb