IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940
WP(Crl.).No. 458 of 2018
AGED 38 YEARS
S/O T. SHANKERDAS, KRISHNA, 8/341-C, SNRA 179,
SUVARNA NAGAR, PALLEPONAM CANAL ROAD, EROOR WEST,
TRIPUNITHURA, KOCHI 682 306
1 DEEPA DAS
AGED 32 YEARS
D/O P.N.CHANDRADAS, G-6, FLAT NO-101, SECTOR-8,
CHIRANJEEV VIHAR, GHAZIABAD, UTTAR PRADESH 201 002.
2 P.N. CHANDRADAS,
S/O. NARAYANAN NAIR, G-6,FLAT NO.101, SECTOR -8,
CHIRANJEEV VIHAR, GHAZIABAD, UTTAR PRADESH-201002.
3 SUNITHA DAS.
W/O. P.N.CHANDRADAS, G-6,FLAT NO.101, SECTOR-8,
CHIRANJEEV VIHAR, GHAZIABAD, UTTAR PRADESH-201002.
4 THE SUB INSPECTOR OF POLICE,
TRIPUNITHURA HILL PALACE POLICE STATION,
SR GP SRI. K.B.RAMANAND FOR R1
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (Crl.) No.458/2018 -2-
C.K. ABDUL REHIM, J.
T.V. ANILKUMAR, J.
W.P (Crl.) No. 458 OF 2018
DATED THIS THE 23rd DAY OF NOVEMBER, 2018
Abdul Rehim, J:
The petitioner is approaching this court raising an allegation
that his minor daughter, ‘Kum. Jhanvi Krishna’ is under illegal
detention of the respondents 1 to 3 herein. The 1st respondent is the
wife of the petitioner, who is the mother of the minor girl.
Respondents 2 3 are the parents of the 1 st respondent. Based on
allegations of illegal confinement, the petitioner is seeking a writ of
Habeas Corpus for commanding production of the corpus of the
minor girl and to set her at liberty.
2. Brief facts stated in the writ petition are that, the marriage
between the petitioner and the 1st respondent was on 07-06-2009 and
the minor girl was born to them on 13-03-2011. Both the petitioner
and the 1st respondent were living together at Ghaziabad, where the
petitioner was employed, for about 3 years. At that time itself there
were stiff matrimonial discord existed between the petitioner and the
W.P (Crl.) No.458/2018 -3-
1st respondent. Thereafter they shifted residence to Bangalore, when
the petitioner got another job therein. According to the petitioner, the
relationship became more strained and the petitioner was compelled
to shift to Ernakulam, from October 2014 onwards. Thereafter the
spouses lived at Ernakulam along with the minor girl and the
petitioner’s mother. According to the petitioner, he suffered a heart
ailment on 28-07-2018 at that time when the 1 st respondent was not
in his house. It is stated that, eventhough she reached in the evening
on that day, she left the company of the petitioner along with the
minor child. According to the petitioner, she left to Kottayam along
with the child on 04-08-2018, even without allowing the child to
attend her school. Since then the petitioner could not have any
contact with the 1st respondent or with minor child. Enquiries made
by him revealed that, the 1 st respondent had moved to Ghaziabad
along with the minor child. Under such circumstances, alleging that
the child is kept under illegal custody of the 1 st respondent, the above
writ petition is filed.
3. When the above writ petition came up for admission on
19-11-2018, this court directed the Government Pleader appearing
for the 4th respondent to get instructions in the matter. Today when
W.P (Crl.) No.458/2018 -4-
the case is taken up, the learned Government Pleader on instructions
from the 4th respondent submitted that, the 1st respondent is now
staying along with respondents 2 3 and the minor child at
Ghaziabad, in the address of the respondents 2 3 shown in the writ
petition. Enquiries made by the 4th respondent had revealed that
there exists stiff matrimonial disputes between the petitioner and the
1st respondent and that the 1st respondent is now living separated
from the petitioner due to the said reasons.
4. This court cannot take countenance of the contention that
the minor child is detained against her free will. As long as child is a
minor, her place of residence cannot be decided based on her will or
wish. The minor girl is now in the custody of her mother. Question as
to who among the petitioner and the 1st respondent is the best
suitable parent to be entrusted with the custody of the minor child,
cannot be adjudicated and decided in this proceedings which is
instituted under Article 226 of the Constitution of India. The court
having jurisdiction under the Guardian and Wards Act is the best
forum competent to adjudicate upon the said issue and to take a
decision considering the welfare of the child, which factor need to be
examined with prime consideration. Since we could not find that the
W.P (Crl.) No.458/2018 -5-
child is under illegal custody of the 1st respondent, no writ as prayed
for can be issued in this petition.
5. Consequently, the above writ petition fails and the same is
hereby dismissed. It is made clear that, liberty of the petitioner to
approach the appropriate court seeking custody of the child, will
W.P (Crl.) No.458/2018 -6-
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE
LOCAL REGISTRAR OF MARRIAGES, GURUVAYOOR MUNICIPALITY.