IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940
WP(Crl.).No. 405 of 2018
PETITIONER/S:
SUMAYYA K.S.,
AGED 26 YEARS
D/O E.A.SULAIMAN, POOMKURINJIYIL HOUSE, PALLICKACHIRA
PO, PAIPADU VILLAGE, CHANGANACHERRY THALUK, KOTTAYAM
DISTRICT PIN 686537.
BY ADV. SRI.VARUGHESE M EASO
RESPONDENT/S:
1 NIBIN P. SALIM,
AGED 31 YEARS
S/O P.A.SALIM, PARAKKAVETTI HOUSE, CHERAVALLY P.O.,
KAYAMKULAM, ALAPPUZHA DISTRICT PIN 690572.
2 P.A. SALIM,
AGED 66 YEARS
PARAKKAVETTI HOUSE, CHERAVALLY P.O., KAYAMKULAM,
ALAPPUZHA DISTRICT PIN 690572.
3 STATION HOUSE OFFICER,
THRIKODITHAANAM POLICE STATION, THRIKODITHAANAM P.O.,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686105.
4 DEPUTY SUPERINTENDENT OF POLICE,
CHANGANACHERRY POLICE SUB DIVISION, CHANGANACHERRY
P.O., KOTTAYAM DISTRICT-686101.
5 DEPUTY SUPERINTENDENT OF POLICE,
KYAMKULAM POLICE SUB DIVISION, KAYAMKULAM P.O.,
ALAPPUZHA DISTRICT-690572.
6 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
R3 TO R6 SR.GP SRI.K.B.RAMANAND
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
22.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No. 405 of 2018
2
JUDGMENT
Abdul Rehim, J
The petitioner is seeking a writ of Habeas Corpus for
commanding production of her minor daughter, ‘Minha Fathima’,
aged 4 years, and to release the child from the alleged illegal
custody of respondents 1 and 2. The 1st respondent is the father
of the child and the 2nd respondent is her paternal grandfather.
2. Averments in the writ petition are that, the marriage
between the petitioner and the 1 st respondent took place on
31.03.2013 and the minor child, ‘Minha Fathima’ (hereinafter
referred to as ‘the alleged detenue’) was born out of the wedlock
on 15.10.2014. Both the petitioner and the 1 st respondent were
living in Dubai along with the minor child. But the petitioner left
the company of the 1 st respondent along with the child, due to
some matrimonial disputes and due to the alleged harassments
and tortures from the side of the 1 st respondent. It is stated
that, the petitioner had instituted three cases against the 1 st
respondent before the Family Court, Thiruvalla as O.P Nos.
431/2017, 434/2017 and M.C No.101/2017, seeking dissolution
of the marriage, realisation of patrimony and gold ornaments and
WP(Crl.).No. 405 of 2018
3
for getting maintenance etc. The above said cases were settled
through mediation and the parties have agreed upon the terms
of compromise by executing Ext.P1 agreement. It is contended
that, the minor child was given custody to the petitioner in terms
of the compromise arrived. According to the petitioner, on
23.9.2018 the respondents 1 and 2 had forcibly taken the minor
child into custody from the house of the petitioner without her
permission and they are now detaining the minor child without
even sending her to the School, in violation of the terms of
Ext.P1. Hence the petitioner is approaching this court seeking the
relief as mentioned above.
3. When the above writ petition came up for admission,
we directed the 5th respondent to conduct an enquiry with
respect to the whereabouts of the minor child and to verify
whether the child is available with the respondents 1 and 2. The
5th respondent had submitted a report through the Government
Pleader. It is stated that the cases which were pending before the
Family Court, Thiruvalla was settled and on that basis final order
was passed in M.C No. 101/2017 allowing monthly maintenance
of Rs.5,000/- to the minor child from the 1 st respondent. The
other two cases are also disposed of in terms of the mediation
WP(Crl.).No. 405 of 2018
4
agreement. It is further reported that, enquiry conducted by the
5th respondent had revealed that, the minor child is with the 1 st
respondent. It is pointed out that the 1 st respondent had
obtained an interim order in I.A No.2479/2018 in O.P(GW)
No.1263/2018 filed by him before the Family Court, Mavelikkara,
restraining the petitioner herein from forcibly removing the minor
child from his custody. It is stated in the report of the 5 th
respondent that, after the mediation settlement arrived at the
Family Court. Thiruvalla, the alleged detenue child was under the
care and protection of the petitioner herein. But on 14.9.2018,
the 1st respondent who was in UAE, got a call from the
petitioner’s father, Sri.Sulaiman to the effect that the petitioner
had eloped with another person named Ajmal @ Appu, a native
of Puthur. It was informed that the alleged detenue child was
along with the petitioner. On getting information, the 1 st
respondent reached Kerala on 18.9.2018. He contacted with the
petitioner’s parents and took the minor child from the custody of
the petitioner. The 5th respondent had reported that the father of
the petitioner had also lodged complaint with respect to missing
of the petitioner from his house. It is further reported that the
petitioner had also submitted a complaint requesting to release
WP(Crl.).No. 405 of 2018
5
the child from the alleged illegal custody of the 1st respondent.
4. From the facts reported to this court, it is evident and
clear that, the petitioner and the 1 st respondent are living
separated due to matrimonial discord. It is also clear that the
minor child (alleged detenue) is now in the custody of the 1 st
respondent. Learned counsel appearing for the petitioner
contended that, custody of the minor child with the 1 st
respondent is illegal, because he is keeping the child against the
terms of the compromise arrived on the basis of which the Family
Court, Thiruvalla had passed the decrees. He also contended
that, the 1st respondent had now obtained an order of injunction
from the Family Court, Mavelikkara, by suppressing the final
orders passed by the Family Court, Thiruvalla, endorsing the
settlement arrived between the parties.
5. We are of the considered opinion that, the dispute
existing between the petitioner and the 1 st respondent with
respect to custody of the child is a matter which need not be
adjudicated in this proceedings, initiated under Article 226 of the
Constitution of India. We are not in a position to order release of
custody of the child from its biological father, since we cannot
hold that the child is under illegal confinement. Who among the
WP(Crl.).No. 405 of 2018
6
petitioner and the 1st respondent is the best suitable guardian
with whom custody of the minor child is to be entrusted, is a
matter which need to be decided by the appropriate court
exercising jurisdiction under the Guardian of Wards Act. The
parties will be at liberty agitate those issues before the said court
in appropriate proceedings.
Hence the above writ petition fails and the same is
hereby dismissed. It is made clear that the parties will be at
liberty to agitate the issue independently before the Family
Court, and any of the observations contained herein shall not
affect those proceedings in any manner.
Sd/- C.K. ABDUL REHIM,
Judge
Sd/-R.NARAYANA PISHARADI,
Judge
lsn
WP(Crl.).No. 405 of 2018
7
APPENDIX
PETITIONER’S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF
AGREEMENT DT. NIL SIGNED BY THE
PETITIONER AND THE RESPONDENTS 1 AND 2
EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED
29.9.2018 SUBMITTED BY THE PETITIONER
BEFORE THE 4TH RESPONDENT
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED
1.10.2018 ISSUED BY THE BELIEVERS
SCHOOL, THIRUVALLA
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT OF THE 1ST
RESPONDENT DATED 26.9.2018 IN
O.P.434/2017 BEFORE FAMILY COURT,
THIRUVALLA
EXHIBIT P5 TRUE COPY OF THE FINAL ORDER DATED
28.12.2017 IN MC.101/2017, THE FAMILY
COURT, THIRUVALLA
RESPONDENTS EXHIBITS : NIL
TRUE COPY
P.A TO JUDGE
LSN