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:
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C.K. ABDUL REHIM
T.V. ANILKUMAR, JJ.
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W.P.(Crl) No. 433 OF 2018 S
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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
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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
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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
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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
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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
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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
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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.