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Hazeena Nazir vs City Police Commisioner on 27 September, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

THE HONOURABLE MR.JUSTICE R NARAYANA PISHARADI

THURSDAY, THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940

WP(Crl.)No.354 of 2018

PETITIONER:

HAZEENA NAZIR, AGED 35 YEARS,
W/O ABDUL HARIS, CHOONATTUSSERIL VEEDU,
CHANGANKULANGARA MURI, VAVVAKKAVU, P.O.,
KARUNAGAPPALLY TALUK, KOLLAM – 690 528.

BY ADV. SRI.K.S.HARIHARAPUTHRAN

RESPONDENTS:

1 CITY POLICE COMMISIONER,
OFFICE OF THE COMMISSIONER OF POLICE,
KOLLAM-691 001.

2 ASSISTANT COMMISSIONER OF POLICE,
OFFICE OF THE ASSISTANT COMMISSIONER OF POLICE,
KARUNAGAPPALLY, KOLLAM DISTRICT – 690 518.

3 THE STATION HOUSE OFFICER,
OACHIRA POLICE STATION, OACHIRA,
KOLLAM DISTRICT – 690 526.

4 ABDUL HARIS, AGED 42 YEARS,
S/O. JAMALUDEENKUNJU.
PUNTHALA VEEDU, VALLYAKULANGARA MURI,
OACHIRA VILLAGE, KARUNAGAPPALLY TALUK,
OACHIRA.P.O, KOLLAM DISTRICT-690 526.

BY ADVS.

DIRECTOR GENERAL OF PROSECUTION-AG-10
DR.SEBASTIAN CHAMPAPPILLY
SRI.GEORGE CLEETUS

OTHER PRESENT:
SENIOR GOVERNMENT PLEADER SRI. K.B. RAMANAND

THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
27.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No.354 of 2018

2

JUDGMENT

C.K. Abdul Rehim, J

Mother of a minor girl child named ‘Zaerah’ is the petitioner

herein seeking a writ of Habeas Corpus for commanding production

of the corpus of the child and release her from the custody of the

4th respondent, who is the husband of the petitioner and father of

the minor child.

2. Under normal circumstances, this court would not have

entertained the above writ petition, because the averments would

reveal that the minor child is in the custody of her father. But

the facts and circumstances in the present case is slightly

different. Averments are to the effect that, the petitioner and

the 4th respondent are living separated due to matrimonial

disharmony and the minor child was in the custody of the

petitioner till 8.5.2018. It is alleged that the 4th respondent

took custody of the minor child forcefully from the petitioner on

8.5.2018, and thereafter he filed an original petition before the

Family Court, Chavara as O.P.(GW)No.323/2018. It is stated that

the petitioner and the 4th respondent got separated since 2013 and

a case instituted by the petitioner seeking dissolution of the

marriage is pending disposal before the Family Court, Chavara as

O.P.No.1148/2013. When the child was taken custody by the 4th
WP(Crl.).No.354 of 2018

3

respondent, the petitioner lodged a complaint before the police

authorities at Oachira, based on which a case was registered by

the 3rd respondent as Crime No.908/2018, under Section 57 of the

Kerala Police Act. In the case instituted by the 4 th respondent

seeking guardianship and permanent custody of the minor child, he

filed I.A.No.998/2018 seeking temporary injunction restraining the

petitioner herein from taking forceful custody of the minor child

or from causing any obstruction to the studies of the minor child.

On getting notice in the said case, the petitioner entered

appearance before the Family Court and filed I.A.No.1132/2018

seeking interim custody of the minor child. The Family Court

considered both the above said interim applications together and

passed a common order on 9.7.2018 as evidenced from Ext.P1. It was

found that, the petitioner herein was having custody of the child

till 8.5.2018 and that the 4th respondent had instituted the case

only after getting custody of the child on that day. Therefore

the Family Court found that the 4th respondent is not entitled to

get an order of temporary injunction as prayed for. Accordingly

I.A.No.998/2018 was dismissed. The application filed by the

petitioner seeking interim custody of the minor child,

I.A.No.1132/2018, was allowed by the court below. The 4th

respondent was directed to hand over custody of the minor child to

the petitioner herein, within ten days from the date of the order,
WP(Crl.).No.354 of 2018

4

failing which it was made clear that she will be entitled to

execute the order through due process of law.

3. Despite Ext.P1 order passed on 9.7.2018, the 4th

respondent failed to handover custody of the minor child to the

petitioner. On the other hand, he filed an original petition

before this court as O.P.(FC) No.438/2018, in which he obtained an

interim stay against the operation of Ext.P1 order. The

petitioner entered appearance in that case and the matter was

heard by this court on more than one occasion. Subsequently the

4th respondent had withdrawn the said original petition, on

21.8.2018. But the 4th respondent failed to produce the child

before the Family Court, Chavara in compliance with Ext.P1 order.

Hence that court had issued warrant against the 4th respondent. But

the police authorities have not taken any appropriate steps to

execute the warrant, despite Ext.P2 and P3 complaints submitted by

the petitioner herein is the allegation. Meanwhile, the 4th

respondent filed a Memo through his counsel before the Family

Court seeking for dismissal of O.P.(GW) No.323/2018 as ‘not

pressed’. On the basis of the said Memo and on the basis of an

advance petition filed before that court, the Family Court

dismissed O.P.(GW)No.323/2018 as ‘not pressed’, on 3.9.2018.

Under the above said context, raising an allegation that the minor

child is illegally detained by the 4th respondent, the above writ
WP(Crl.).No.354 of 2018

5

petition is filed.

4. Notice issued from this court to the 4 th respondent was

returned unserved with an endorsement that ‘the 4th respondent is

not in station’. This court became convinced that the 4th

respondent is absconding along with the child in order to

circumvent Ext.P1 order passed by the Family Court and is keeping

the child away from the petitioner in a manner denying her

legitimate rights to have access to the child. Therefore, this

court directed the respondents 1 to 3 to intensify the

investigation of Crime No.908/2018 registered based on the

complaint of the petitioner. The respondents 1 to 3 were directed

to trace out the child and to produce her before this court. Even

though an order to that effect was passed by this court on

12.9.2018, the respondents 1 to 3 could not trace out the child

and produce her before this court. Therefore, when the case came

up for further consideration on 18.9.2018, we granted further time

till today, for the production of the child.

5. Today, when the case is taken up for consideration,

learned Government Pleader appearing for respondents 1 to 3

submitted that the child was traced out in the company of the 4 th

respondent on yesterday (26.9.2018) from a place called

Kaliyikkavaila, near Thiruvananthapuram. It is submitted that the

child was produced before the Judicial First Class Magistrate
WP(Crl.).No.354 of 2018

6

Court, Karunagappally, based on the crime which was pending before

that court. The learned magistrate, taking into consideration of

the directions issued from this court, had entrusted the custody

of the child with the 4th respondent on specific directions to

produce the child before this court on today. Accordingly the

child is produced before this court on today. The 4 th respondent is

personally present and he is also represented through a lawyer.

6. We have interacted with the petitioner and the 4th

respondent, separately. We had also ascertained the wishes of the

child with respect to her interest in staying with the parents

directly from her, in isolation. Even though we made enquiries

regarding possibility of a re-union of the spouses, we do not find

any prima facie chance for the same. From the admitted facts, it

is evident that the child was staying with her maternal

grandparents, till 8.5.2018. The petitioner is at present working

abroad and she used to visit the child in her parental home,

whenever she gets leave. It is also revealed that the child was

taken abroad during the vacations in the previous years. Evidently

the 4th respondent is staying in the nearby vicinity. It was

conceded that the 4th respondent used to visit the house of the

petitioner during weekends to have interactions with the child.

The child is now studying in the 2nd standard at Vivekananda

School, Valiyakulangara.

WP(Crl.).No.354 of 2018

7

7. As already observed, under normal circumstances we

cannot hold that the custody of the minor child with her father

will amount to an illegal confinement. But in the case at hand

there are materials which would reveal that the child was in the

custody of the petitioner, staying with the maternal grandparents,

till 8.5.2018. It is also evident that, the 4th respondent had

purposefully flouted Ext.P1 order passed by the Family Court

directing to hand over the custody of the child to the petitioner.

Presumably, he had absconded with the child only with an oblique

motive to defeat that order of the Family Court.

8. It remains now settled that, while exercising

jurisdiction under Article 226 wherein custody of the minor child

is in dispute, this court had to take note of the welfare of the

child, which is the paramount consideration, in exercise of the

parents patria jurisdiction. The child when interacted expressed

her view that she is interested in staying with the mother as and

when the mother is available in India. During when the mother is

abroad, the child is interested in staying with the 4 th respondent

at his house. We are of the considered opinion that, what should

be the best arrangement regarding custody of the child which can

be made, is a matter which requires a proper adjudication by a

court having competent jurisdiction. Who among the petitioner and

the 4th respondent is the best suited person to have custody of the
WP(Crl.).No.354 of 2018

8

child and what should be the interim arrangements to be made for

visitation and interim custody during holidays and vacation etc.,

are matters which need to be decided based on elaborate

consideration of all the factual circumstances. Therefore, we are

of the opinion that the above writ petition can be disposed of by

making a temporary arrangement regarding custody of the child and

by granting liberty to the parties to adjudicate the question

before the Family Court having competent jurisdiction, in a

properly constituted case.

9. Under the above mentioned circumstances, the above writ

petition is hereby disposed of by handing over custody of the

minor child ‘Miss. Zaerah’ to the petitioner, who is the mother.

The petitioner shall keep the child in her parental home and shall

send her to the school where she is now studying. The 4 th

respondent will be at liberty to visit the child at the house of

the petitioner, during Saturdays and Sundays in every week at day

time, from 10.00 a.m till 4.00 p.m. He will be entitled to take

the child to his parental home during such time. It is made clear

that the 4th respondent will be at liberty to approach the Family

Court in a properly constituted petition filed under the Guardian

and Wards Act. If any such original petition is filed, the Family

Court shall consider it as a fresh case filed with respect to

custody of the child, instituted under the changed circumstances
WP(Crl.).No.354 of 2018

9

based on this judgment. That court will be at liberty to make

appropriate interim arrangement regarding custody of the child,

taking into consideration of all attendant circumstances

untramelled by the observations and directions contained herein.

We make it clear that, the petitioner will not be entitled to

take the child outside India, without getting permission from this

court or from the Family Court.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

JUDGE
ss
WP(Crl.).No.354 of 2018

10

APPENDIX

PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE C0PY OF THE COMMON ORDER DTD.09.07.2018
IN I.A.NO.998 OF 2018 AND I.A.NO.1132 OF
2018 IN O.P.(G AND W)NO.323 OF 2018 OF
FAMILY COURT,CHAVARA.

EXHIBIT P2 TRUE COPY OF COMPLAINANT DTD.25.08.2018
FILED BEFORE THE 3RD RESPONDENT

EXHIBIT P3 TRUE COPY OF RECEIPT DTD 28.08.2018 ISSUED
FROM THE OFFICE OF 1ST RESPONDENT

EXHIBIT P4 TRUE COPY OF COMPLAINT DTD.25.08.2018
SUBMITTED BEFORE 3RD RESPONDENT.

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