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Leo Zacharias vs The Director General Of Police on 9 November, 2018

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
-:2:-

C.K. ABDUL REHIM

T.V. ANILKUMAR, JJ.
—————————————————–
W.P.(Crl) No. 444 OF 2018 S
——————————————————-
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
-:3:-

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
-:4:-

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
-:5:-

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
-:6:-

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
-:7:-

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.

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