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