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 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940
WP(Crl.).No. 444 of 2018
PETITIONER:
LEO ZACHARIAS
AGED 32 YEARS
S/O. SAKARIA, PERUMPALLIL (H), POOTHAMPARA
P.O., KUTTIYADI, KOZHIKODE DISTRICT – 673 513
BY ADV. SRI.MOHANAN V.T.K.
RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE
KERALA, THIRUVANANTHAPURAM – 695 004
2 THE STATION HOUSE OFFICER,
THOTTIPALAM POLICE STATION, KOZHIKODE-673513.
3 THE DISTRICT POLICE CHIEF (KOZHIKODE RURAL)
VATAKARA, KOZHIKODE-673101.
4 JOSEPH K.T. @ JOYAN,
AGED 58 YEARS
KOCHUPARAMBIL (H), PINNAKKANAD, KALAKETTY
(P.O), KUDAGU DISTRICT, KARNATAKA PIN-571211.
5 KATHERNA @ OMANA
W/O. JOSEPH, KOCHUPARAMBIL (H), PINNAKKANAD,
KALAKETTY (P.O), NOW RESIDING AT FINE QUARTERS,
AMMATHY P.O., KUDAGU DISTRICT, KARNATAKA PIN-
571211.
OTHER PRESENT:
SR.GP. SRI. K.B. RAMANAND
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl) No. 444/2018
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C.K. ABDUL REHIM
T.V. ANILKUMAR, JJ.
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W.P.(Crl) No. 444 OF 2018 S
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Dated this the 9th day of November, 2018
JUDGMENT
Abdul Rehim, J.
The above writ petition is filed raising an allegation that
two minor children of the petitioner, named Rohan Leo and
Rose Leo, are under illegal confinement of the respondents 4
and 5. The respondents 4 and 5 are the parents of the mother
of the minor children. Admittedly, the petitioner and the mother
of the minor children are living in an estranged marital
relationship. It is stated that, there were cases instituted before
the Family Court seeking dissolution of their marriage and also
for restitution of conjugal rights, filed by the wife and the
husband respectively. The Family court had ordered restitution
of conjugal rights by allowing the case instituted by the
W.P.(Crl) No. 444/2018
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petitioner, through an order passed on 30.11.2016. It is alleged
that, the mother of the minor children as well as the
respondents 4 and 5 herein were restraining the petitioner from
permitting to see the children. It is also mentioned that, the
petitioner had approached ‘Child Welfare Committee’ of
Kottayam District and based on their direction the children were
produced before the said authority once, in the month of June,
2018. It is alleged that, thereafter the respondents 4 and 5 had
shifted their residence to ‘Kudag’ in Karnataka State, along with
the children. It is further alleged that the mother of the minor
children had left to gulf countries. According to the petitioner,
the respondents 4 and 5 are not in a position to look after the
welfare of the children, because of their old age and illnesses.
The petitioner being the father, has got a natural right to have
the custody of the children, is the contention. The petitioner
submitted a complaint before the police authorities at Vadakara
requesting to trace out the children, to which Ext.P3 reply was
W.P.(Crl) No. 444/2018
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given. It is mentioned in Ext.P3 that the enquiries made by the
police had revealed that the children are now staying with the
respondents 4 and 5 within the limits of Ammathy Police
Station in Kudag District in Karnataka State, at a rented house
at ‘Fine Quarters’. In Ext.P3 it is mentioned that the police
authorities are not in a position to take any action since the
cases touching upon matrimonial disputes are pending before
this court. The petitioner alleges that the respondents 4 and 5
are changing there residence frequently in order to evade any
process of law. Under such circumstances, alleging that the
custody of the minor children at the hands of the respondents 4
and 5 is illegal, the petitioner is seeking a writ of Habeas
Corpus commanding for production of the corpus of the minor
children before this court.
2. From the averments in the writ petition itself it is
evident that the minor children were in the custody of their
mother, even before the year 2014. This is evident from the fact
W.P.(Crl) No. 444/2018
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that the petitioner sought for restitution of conjugal rights in an
original petition filed before the Family Court in the year 2014.
Now the petitioner is raising an allegation that the mother of the
minor children had left the country and the children are now
entrusted to the custody of their maternal grandparents.
Whether the petitioner is the most suitable guardian to have
custody of the minor children, considering the welfare and well-
being of the children, is a question which requires elaborate
adjudication and decision by an appropriate court having
jurisdiction under the Guardian and Wards Act. From the
circumstances mentioned as above, this court cannot hold that
the minor children are under illegal confinement of the
respondents 4 and 5. We find no basis with respect to the
allegation that the whereabouts of the minor children are not
known to the petitioner, in view of the contents of Ext.P3 reply
issued by the police authorities.
3. Therefore we do not find any ground for interference
W.P.(Crl) No. 444/2018
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in the matter by invoking jurisdiction vested on this court under
Article 226 of the Constitution of India, for issuance of any writ
of Habeas Corpus. It is left open to the petitioner to seek
appropriate remedy before the appropriate court for getting
custody of the minor children or for establishing his visitation
rights over the children, if so advised.
The writ petition is dismissed, subject to the above
observations.
Sd/- C.K. ABDUL REHIM, JUDGE.
Sd/- T.V. ANILKUMAR, JUDGE.
ul/-
[True copy]
P.S. to Judge.
W.P.(Crl) No. 444/2018
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APPENDIX
PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER NO.8502/2018 OF
THE CHILD WELFARE COMMITTEE DATED
14.5.2018.
EXHIBIT P2 TRUE COPY OF THE PETITION SUBMITTED BY
PETITINOER TO THE DISTRICT POLICE CHIEF
(RURAL), KOZHIKODE DATED 31.5.2018.
EXHIBIT P3 TRUE COPY OF THE REPLY SENT BY THE
SECOND RESPONDENT DATED 13.6.2018.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT FILED BEFORE
THE POLICE OFFICER, SIDHAPPURA DATED
3.11.2018.