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Dr.Manzoor Ahammed vs Sub Inspector Of Police on 19 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

TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940

WP(Crl.).No. 69 of 2019

PETITIONER:
DR.MANZOOR AHAMMED,
AGED 46 YEARS,
S/O.AHMMEDKUTY, PALALYIL KIZHAKKETHODI,
PUTHUR PALLIKKAL.P.O., THENHIPALAM (VIA),
PALLIKKAL VILLAGE, KONDOTTY TALUK.

BY ADVS.
SRI.T.M.ABDUL LATHEEF
SRI.K.ASHOK SARAN

RESPONDENTS:
1 SUB INSPECTOR OF POLICE,
AREEKODE POLICE STATION, MALAPPURAM DISTRICT-673639.

2 DR.SHERIN YAKOOB,
AGED 38 YEARS, D/O.YAKOOB, NEAR VAZHAYIL MOSQUE,
AREECODE, AREECODE.P.O., PIN-673639.

3 CHEEMADAN YACOOB,
RETIRED PROFESSOR, NEAR VAZHAYIL MOSQUE, AREECODE,
AREECODE.P.O., PIN-673639.

4 RUKHIYA,
RETIRED TEACHER, NEAR VAZHAYIL MOSQUE, AREECODE,
AREECODE.P.O., PIN-673639.

R1 BY DIRECTOR GENERAL OF PROSECUTION

OTHER PRESENT:

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 69 of 2019 : 2 :

C.K.ABDUL REHIM

T.V.ANILKUMAR, JJ.
———————————
W.P.(Crl) No.69 of 2019
———————————-
Dated this the 19th day of February, 2019

JUDGMENT

C.K.ABDUL REHIM, J.

Father of a minor child, namely Arish Manzoor, is the

petitioner herein, seeking a writ of Habeas Corpus for

commanding production of corpus of the child and to release

him from the alleged illegal custody of the respondents 2 to 4.

The 2nd respondent is the wife of the petitioner and the

respondents 3 and 4 are her parents.

2. Brief averments are that, there are two children born

out of the wedlock between the petitioner and the 2 nd

respondent, now aged 12 years and 5 years, respectively.

Master Arish Manzoor (hereinafter referred to as ‘the alleged

detenu’) is now aged 5 years. The spouses along with the

children were in U.A.E. At present, the 2 nd respondent and the
WP(Crl.).No. 69 of 2019 : 3 :

children are residing in the house of the 3 rd respondent. It is

alleged that the 2nd respondent is not in a mentally balanced

condition and she was undergoing treatment and counselling

etc. Averments are to the effect that, the spouses are now living

separated due to matrimonial disputes and there are many

litigations pending between them. It is stated that the 2 nd

respondent had filed M.C.No.90/2018 before the Judicial First

Class Magistrate Court-I, Parappanangadi under the Protection

of Women from Domestic Violence Act, 2005, in which she had

obtained Ext.P1 order of protection. The 2 nd respondent had

also filed O.P.No.591/2018 before the Family Court, Tirur

seeking recovery of huge amount, in which she had obtained an

interim order of attachment against immovable properties of the

petitioner. The 2nd respondent has also filed M.C.No.315/2018

before the Family Court seeking maintenance, under Section

125 of Cr.P.C. The petitioner had conceded that he had also

approached the Chief Judicial Magistrate Court, Manjeri in

Crl.M.P.No.3390/2018 seeking reliefs under provisions of the

Mental Health Care Act. In Ext.P5 order passed in the said case

the Chief Judicial Magistrate had found that there is no evidence
WP(Crl.).No. 69 of 2019 : 4 :

or circumstances to hold that the 2 nd respondent is a mentally ill

person. It was also observed in the said order that the 2 nd

respondent had filed a criminal case against the petitioner

herein alleging offence punishable under Section 498A of I.P.C.

3. According to the petitioner, when he came to the

native place during October, 2018, he took both the children

along with him and he could able to spent time with the children

to show his love and affection. It is conceded that, at that time

the 2nd respondent made complaints to police authorities

alleging that the children were illegally taken into custody by the

petitioner. It is stated that, now the petitioner came on leave to

the native place, on 15.2.2019. According to him, when he went

to see the children, the elder son came along with him. But the

2nd child was restrained by the 2 nd respondent herein and she

had declared that she will not permit the petitioner to see the

child. The petitioner alleges that the whereabouts of the child is

now not known to him and custody of the said child with

respondents 2 to 4 will be insecure and will be against the

interest and welfare of the child, especially because the 2 nd

respondent is a person of mental imbalance. Under the above
WP(Crl.).No. 69 of 2019 : 5 :

said context the petitioner is seeking relief as mentioned above.

4. Considering the circumstances as narrated above, it

is evident that the alleged detenu (the minor child) is now in the

custody of the 2nd respondent, who is his biological mother,

atleast since the year 2018. Demand of the petitioner seems to

be that, he is entitled to have interim custody of the child during

when he is available at the native place. Evidently there exists

stiff matrimonial discord and litigations between the spouses are

pending. There is no material available before this court to hold

that custody of the alleged detenu with the 2 nd respondent, who

is the mother, is in any manner illegal or detrimental to the

welfare and interest of the minor. Who among the parents of the

alleged detenu is the best suitable person to have custody of the

minor, is a question which need to be decided based on a

proper adjudication, in a properly constituted petition filed before

the appropriate court under the Guardians and Wards Act.

Whether the petitioner is entitled to have interim custody for any

particular period, when he is available in Kerala, is also a

question which needs an adjudication and decision by an

appropriate court having jurisdiction. Since we are of the
WP(Crl.).No. 69 of 2019 : 6 :

considered opinion that there exists no element of illegal

detention, it may not be proper on the part of this court to

exercise jurisdiction vested under Article 226 to issue a writ of

Habeas Corpus, especially when we do not find any

extraordinary circumstance warranting exercise of the ‘parens

patriae’ jurisdiction, by exercising the discretion vested on this

court.

Under the above mentioned circumstances, the above writ

petition is dismissed by reserving liberty to the petitioner to

approach the appropriate court having jurisdiction in the matter,

seeking appropriate reliefs.

Sd/-

C.K.ABDUL REHIM
JUDGE
Sd/-

T.V.ANILKUMAR
JUDGE
Bb
WP(Crl.).No. 69 of 2019 : 7 :

APPENDIX

PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 9.8.2018
PASSED BY THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, PARAPPANANGADI IN
C.M.P.NO.5321 OF 2018 IN M.C.NO.90 OF
2018.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 1.10.2018
PASSED BY THE FAMILY COURT, TIRUR ON
I.A.NO.1427 OF 2018 IN O.P.NO.591 OF
2018.

EXHIBIT P3 TRUE COPY OF THE SUMMONS ISSUED BY THE
FAMILY COURT, TIRUR IN O.P.NO.591 OF
2018.

EXHIBIT P4 TRUE COPY OF M.C.NO.315 OF 2018 DATED
26.9.2018 FILED BY THE 1ST PETITIONER
BEFORE THE FAMILY COURT, TIRUR.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 5.1.2019
PASSED BY THE CHIEF JUDICIAL MAGISTRATE
COURT, MANJERI IN CRL.M.P.NO.3390 OF
2018.

RESPONDENTS’ EXHIBITS:

NIL

//True Copy//

P.A. To Judge

Bb

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