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Sudheesh Mohan vs State Of Kerala on 8 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

THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA,
1940

WP(Crl.).No. 433 of 2018

PETITIONER/S:

SUDHEESH MOHAN, S/O.MOHAN, S.M.HOUSE,
KUNNILPAALELI, KATTAKKADA P.O,
THIRUVANANTHAPURAM, PIN-695572.

BY ADVS.
SRI.K.P.SUJESH KUMAR
SMT.KEERTHI K.NARAYANAN

RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.

2 THE SUB INSPECTOR OF POLICE,
MUSEUM POLICE STATION, THIRUVANANTHAPURAM,PIN-
695571.

3 P.VIJAYAN, VAISAKH, MRA 236, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM,PIN-695035.

4 SUVARNAKUMARI, W/O.P.VIJAYAN,VAISAKH, MRA 236,
VANCHIYOOR P.O., THIRUVANANTHAPURAM,PIN-695035.

BY ADV. DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SR. GP SRI. K.B.RAMANAND

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 08.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl) No. 433/18
-:2:-

C.K. ABDUL REHIM

T.V. ANILKUMAR, JJ.
—————————————————–
W.P.(Crl) No. 433 OF 2018 S
——————————————————-
Dated this the 8th day of November, 2018

JUDGMENT

Abdul Rehim, J.

The petitioner herein is the father of a minor child named

Navaneeth Omkar, who is said to be aged 8 years at present.

The respondents 3 and 4 herein are the maternal grandparents

of the minor child. Mother of the child, who is the former wife of

the petitioner, is now employed abroad. There were various

litigations pending before the Family Court,

Thiruvananthapuram between the petitioner and his former wife

with respect to their matrimonial disputes. There arrived at a

settlement of all those issues through mediation, based on

which M.C.No.16/2014 which was pending before the Judicial

First Class Magistrate Court-IV, Thiruvananthapuram was
W.P.(Crl) No. 433/18
-:3:-

disposed of on 24.03.2015, by recording the terms incorporated

in a ‘Memorandum of Agreement’ executed between them. As

per the terms of settlement, it was agreed upon that the custody

of the minor child will be with the mother. The petitioner was

permitted to have interim custody on every second Saturdays

and fourth Sundays, from 10 a.m. till 5 p.m. The marriage

between the petitioner and the mother of the child was

dissolved on mutual consent, in accordance with the terms of

the above said settlement. According to the petitioner, after the

above said settlement and disposal of the cases, the mother of

the child went abroad, leaving the child in the custody of the

grandparents, who are the respondents 3 and 4 herein. It is

stated that the petitioner used to have interim custody of the

minor child in terms of the settlement, on every second

Saturdays and fourth Sundays, till 08.09.2018. It is alleged that,

on 08.09.2018 the petitioner went to pick up the minor child as

usual, but the child was not available in the house of the
W.P.(Crl) No. 433/18
-:4:-

respondents 3 and 4. According to the petitioner, the

respondents 3 and 4 were reluctant to divulge the whereabouts

of the minor child. On enquiry made by the petitioner at the

school where the child was studying, it came to his notice that

the respondents 3 and 4 have obtained Transfer Certificate of

the child from the said school. According to the petitioner, his

efforts to find out the child ended in vain. Therefore he

submitted a complaint before the 2nd respondent, as per Ext.P2.

By raising an allegation that the 2 nd respondent is not taking any

action based on Ext.P2, and also raising an allegation that the

respondents 3 and 4 are illegally detaining the minor child, the

above writ petition is filed seeking issuance of a writ of Habeas

Corpus to order production of the child and to set him at liberty.

2. When the above writ petition came up for admission,

this court directed the 2nd respondent to conduct an enquiry into

the whereabouts of the minor child and to file a report to this

court. Today, when the case is taken up for consideration, the
W.P.(Crl) No. 433/18
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learned Government Pleader has submitted the report of the 2 nd

respondent. It is mentioned therein that the minor child, Master

Navaneeth Omkar, is now admitted to ‘Sabarigiri Residential

School’, Anchal, Kollam, since 09.11.2018. At that time when

the admission was taken the 4th respondent as well as the

mother of child Smt.Sajna S. Vijay were present at that school.

The minor child is admitted to S.T.D. IV and is now staying in

the school hostel. Enquiry conducted by the 2 nd respondent had

revealed that, the petitioner had visited the said school on two

occasions in order to see the child. He could see the minor

child only on his first visit, because at the time of the second

visit the child was not present in the school since he was with

the 4th respondent due to some illness. From the records kept

in the school it is evident that the minor child was admitted by

assigning the 4th respondent as his local guardian. Along with

the report the 2nd respondent had produced a certificate issued

by the Principal of the Sabarigiri Residential School, which
W.P.(Crl) No. 433/18
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would reveal that the minor child is a student of that school

since the month of September 2018. Along with the report the

2nd respondent had also enclosed statements of the Principal

and the Class Teacher of the above said school, which would

also indicate that the child is studying there since 09.09.2018.

The report would indicate that the child was absent in the

school from 06.10.2018 till 12.10.2018, because he was not

keeping well. The statement of the Principal would also fortify

that the petitioner had once visited the minor child in the said

school.

3. Under the above mentioned circumstances, this court

do not think that there is any basis for the allegations of illegal

detention. The child is now staying in the school hostel as

admitted by his mother and grandmother. It seems that the

petitioner was having knowledge about the said fact. Evidently,

the minor child is in the custody of his mother based on a

settlement arrived between the parties. Now the grandparents
W.P.(Crl) No. 433/18
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are keeping custody of the child on behalf of its mother.

Whether the petitioner/father of the minor child is entitled to

have custody under any changed circumstances or whether the

respondents 3 and 4 have denied his right of visitation, are

matters which cannot be agitated before this court. If the

petitioner has got any such grievances, it is for him to approach

the appropriate court having jurisdiction under the Guardian and

Wards Act. Since we do not find that the child is under illegal

custody, the above writ petition cannot be entertained.

Consequently, the above writ petition fails and the same is

hereby dismissed, by reserving liberty to the petitioner to take

appropriate steps as mentioned above, if so advised.

Sd/- C.K. ABDUL REHIM, JUDGE.

Sd/- T.V. ANILKUMAR, JUDGE.

ul/-

[True copy]
P.S. to Judge.

W.P.(Crl) No. 433/18
-:8:-

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER IN
M.C.NO.16/2014 ON THE FILE OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-
IV, DATED 24.3.2015.

EXHIBIT P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE PETITIONER DATED 26.89.2018 BEFORE
THE SECOND RESPONDENT.

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