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Unknown vs By Advs on 31 January, 2019

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 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940

WP(Crl.).No. 41 of 2019

PETITIONER

SAHEER RAHMAN
AGED 40 YEARS
SON OF LATE ABDUL RAHMAN,
MANAMKURICHI VEEDU, PANAVALLY P.O,
CHERTHALA, ALAPPUZHA DISTRICT – 688 526.

BY ADVS.
SRI.ABDUL JALEEL.A
SMT.M.A.SULFIA

RESPONDENTS:

1 NUBLA V,
AGED 31 YEARS, D/O LATHEEF,
KATTILPARAMBATH PARAMBIL,
CHERUVATA.P.O, KOZHIKODE-673 012.

2 NOORJAHAN,
AGED 49 YEARS, W/O LATHEEF,
KALLILPARAMBATH PARAMBIL, CHERUVATTA. P.O
MOOZHIKKAL, KOZHIKODE – 673 012.

3 SUB INSPECTOR OF POLICE,
CHEVAYUR POLICE STATION,
KOZHIKODE DISTRICT – 673 017.

4 CITY POLICE COMMISSIONER,
CORPORATION OF KOZHIKODE,
KOZHIKODE – 673 001.

OTHER PRESENT:

GP-SMT. K.K.SHEEBA FOR R3 R4

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (Crl.) No.41/2019 2-

C.K. ABDUL REHIM, J.

T.V. ANILKUMAR, J.
————————————————-
W.P (Crl.) No. 41 OF 2019
————————————————-
DATED THIS THE 31st DAY OF JANUARY, 2019

JUDGMENT

Abdul Rehim, J:

Father of a minor child aged 5 years, named Abiz Rahman,

is the petitioner herein, seeking a writ of Habeas Corpus for

commanding production of the corpus of the minor child and to

hand over custody to him. The 1st respondent is the mother of the

minor child and the 2nd respondent is the maternal grandmother

of the child.

2. In the writ petition itself it is mentioned that, there

was a case instituted by the petitioner before the Family Court,

Thrissur, with respect to custody of the above said minor child,

as O.P. No.1750/2014. The said case was decreed by the Family

Court against which an appeal filed by the 1 st respondent, Mat.

Appeal No.1418/2017, is pending disposal before this court. It is

stated that this court through Ext.P1 interim order had modified

the terms of interim custody of the minor child permitted in

favour of the petitioner through the judgment passed by the

Family Court. It is also mentioned that, when the 1 st respondent
W.P (Crl.) No.41/2019 3-

failed to comply with the directions contained in Ext.P1 order,

the petitioner had instituted a contempt of court case, which was

disposed of by this court through Ext.P2 order, dated 13 th June

2018 passed in Con. Case (C) No.952/2018. It is stated that the

1st respondent again failed to comply with the directions

contained in the decree in O.P. No.1750/2014, which stands

modified through the interim order passed by this court in Mat.

Appeal No.1418/2017, as well as the directions issued by this

court in the contempt of court case. Therefore the petitioner had

already approached the Family Court seeking implementation of

those directions, by filing execution petition before the Family

Court. E.P. No.3/2018 has already been filed in this regard. It is

the grievance of the petitioner that despite repeated postings of

the execution petition before the Family Court, the 1 st

respondent is not producing the child. It is stated that the

execution petition now stands posted to 12-02-2019.

3. The petitioner alleges that the 1st respondent is now

absconding after entrusting the child with the 2 nd respondent. It

is based on an allegation that the custody of the child with

respondents 1 2 are illegal, since it is violative of the above

mentioned court orders, the above writ petition is filed seeking

the relief as mentioned above.

W.P (Crl.) No.41/2019 4-

4. In view of the factual scenario elaborated herein

above, we are not inclined to entertain this writ petition, because

the petitioner has got effective remedy to get the orders of the

court with respect to the custody of the minor child implemented

through due process of law. It is for the petitioner to take

appropriate steps in the execution petition in accordance with

the provisions contained in the Guardian and Wards Act and in

the Code of Criminal Procedure. We do not think that there

exists any ground for invoking the jurisdiction vested on this

court under Article 226 of the Constitution of India, which is

discretionary in nature, for issuance of a writ of Habeas Corpus.

5. Consequently, the above writ petition fails and the

same is hereby dismissed by reserving liberty to petitioner to

take all possible steps for executing Ext.P1 P2 orders passed

by this court with respect to custody of the minor child.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG
W.P (Crl.) No.41/2019 5-

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE INTERIM ORDER IN MAT. APPEAL
NO 1418/2017.

EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 13/06/2018 IN
CONTEMPT OF COURT NO 952/2018 IN MAT.APPEAL NO
1418/2017.

EXHIBIT P3 THE TRUE COPY OF THE E.P NO 3/2019 IN GOP NO
1750/2014 ON 15/11/2018.

RESPONDENTS’ EXHIBITS

NIL

AMG

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