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Sumayya K.S vs Nibin P. Salim on 22 October, 2018

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

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