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P.S. Krishnaraj vs Deepa Das on 23 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 23RD DAY OF NOVEMBER 2018 / 2ND AGRAHAYANA, 1940
WP(Crl.).No. 458 of 2018

PETITIONER:

P.S. KRISHNARAJ
AGED 38 YEARS
S/O T. SHANKERDAS, KRISHNA, 8/341-C, SNRA 179,
SUVARNA NAGAR, PALLEPONAM CANAL ROAD, EROOR WEST,
TRIPUNITHURA, KOCHI 682 306

BY ADVS.
SRI.SUNIL V.MOHAMMED
SMT.K.A.THANU MOL
SMT.M.S.NEETHUMOL

RESPONDENTS:
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,
ERNAKULAM DISTRICT-682301.

OTHER PRESENT:

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

JUDGMENT

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

stand reserved.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG
W.P (Crl.) No.458/2018 -6-

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE
LOCAL REGISTRAR OF MARRIAGES, GURUVAYOOR MUNICIPALITY.

RESPONDENTS’ EXHIBITS

NIL

AMG

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