IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
FRIDAY, THE 05TH DAY OF OCTOBER 2018 /13TH ASWINA, 1940
WP(Crl.).No. 392 of 2018
PETITIONER:
VARGHESE MATHEW
AGED 39 YEARS
S/O M.V MATHEW NO.5-377 TOP HILL TEA FACTORY,
AMMAN NAGAR KIL-KOTAGIRI BAZAR P.O NILGIRIS
TAMIL NADU STATE- PIN-643216.
BY ADVS.
SRI.JOSEPH GEORGE
SMT.NICEY A. MENON
SRI.P.A.REJIMON
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY (HOME)
GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM
PIN-695001.
2 THE DISTRICT POLICE CHIEF,
PATHANAMTHITTA, PIN 689546.
3 THE STATION HOUSE OFFICER, KOIPURAM POLICE
STATION, PULLAD PO,
PATHANAMTHITTA DISTRICT-689 548.
W.P.(Crl) No. 392/2018
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4. REVI MANALOOR, AGED 63, S/O VARGHESE KURIAN,
MANALOOR HOUSE,
CHIRAYIRAMBU PO, MARAMON,
PATHANAMTHITTTA DISTRICT- 689 549.
5. SUSAMMA REVI MANALOOR, AGED 62, W/O REVI
MANALOOR, MANALOORHOUSE,
CHIRAYIRAMBU PO, MARAMON,
PATHANAMTHITTTA DISTRICT- 689 549.
6. SHARON MANALOOR, AGED 34, W/O VARGHESE MATHEW
AND D/O REVI MANALOOR, MANALOOR HOUSE,
CHIRAYIRAMBU PO,MARAMON,
PATHANAMTHITTTA DISTRICT- 689 549.
OTHER PRESENT:
SR.GP.SRI.K.B.RAMANAND.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 05.10.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl) No. 392/2018
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C.K. ABDUL REHIM,
R. NARAYANA PISHARADI, JJ.
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W.P.(Crl) No. 392 OF 2018 S
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Dated this the 5th day of October, 2018
JUDGMENT
Abdul Rehim, J.
The petitioner and the 6th respondent are husband and
wife, their marriage being solemnized on 29.11.2008. Kum.
Niah Mary Varghese(hereinafter referred to as ‘the alleged
detenue’) is a girl child born out of their wedlock, is now aged 7
years. The respondents 4 and 5 are the parents of the
respondent. The petitioner and the 6th respondent were
employed in Kuwait and they were living together in Kuwait
along with the alleged detenue. The alleged detenue was
admitted in a school at Kuwait. Her school closed for mid-
summer vacation on 31.05.2018. Thereafter the petitioner
came to India along with the alleged detenue on 13.07.2018.
He returned to Kuwait on 28.07.2018 by entrusting custody of
the alleged detenue with the brother of the 6 th respondent.
W.P.(Crl) No. 392/2018
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Afterwards, the 6th respondent came to India on 10.08.2018.
According to the petitioner, she had promised to return to
Kuwait along with the alleged detenue on 28.08.2018, because
the school is reopening on 01.09.2018. But, it is stated that, the
6th respondent refused to have any contacts with the petitioner
after 27.08.2018. All attempts made by the petitioner to contact
the 6th respondent and the alleged detenue were in vain. The 6 th
respondent and her family members prevented the petitioner
from contacting the detenue in any manner, is the allegation.
Since the alleged detenue was kept secretly by denying the
opportunity of the petitioner to have contact with the alleged
detenue, the above writ petition is filed alleging that the
respondents 4 to 6 are keeping the alleged detenue under
illegal confinement. Based on such allegations, the petitioner is
seeking a writ of Habeas Corpus for commanding production of
the corpus of the alleged detenue before this court and to pass
appropriate orders with respect to her custody.
2. From the averments in the writ petition itself it is
evident that, the minor child is with the custody of the 6 th
W.P.(Crl) No. 392/2018
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respondent, who is none other than her biological mother.
However, based on the allegation that the child is kept secretly,
without disclosing her whereabouts, we directed the 3 rd
respondent to conduct an inquiry into the availability of the 6 th
respondent and the alleged detenue in India and to report about
their place of residence.
3. The 3rd respondent had submitted a statement
through the learned Government Pleader, after conducting due
inquiry in the matter. It is mentioned that the inquiry conducted
revealed that the 6th respondent is living separated from the
petitioner due to their matrimonial disharmony. The 6 th
respondent had quit her job in Kuwait and came to Kerala. She
had already filed two cases before the Family Court, Thiruvalla
as O.P. Nos.401/2018 and 402/2018. The first case is filed
seeking declaration of guardianship of the alleged detenue and
also seeking injunction against the petitioner herein from taking
the alleged detenue into forceful custody. The second case is
filed seeking for dissolution of the marriage existing with the
petitioner. From the inquiry conducted it was revealed that, the
W.P.(Crl) No. 392/2018
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6th respondent is now living along with the alleged detenue and
the 5th respondent at Bangalore, in the address, 287, 1 st Floor,
Puttappa Layout 1st Cross, Bangalore. It is further learned that
the alleged detenue is now admitted at St.Thomas Public
School, Bangalore in the second grade. In the statement of the
3rd respondent it is mentioned that, inquiry revealed that the
petitioner is having constant contact with the alleged detenue
through ‘WhatsApp’ and other means of communications.
4. From the facts narrated as above, it is evident that
the alleged detenue is now in the custody of her mother, the 6 th
respondent herein. Evidently, the spouses are living separated
due to matrimonial discord. There is already a case instituted
before the appropriate court having jurisdiction, on the question
of the right to have custody of the alleged detenue, between the
petitioner and the 6th respondent. Therefore it is not necessary
for this court to exercise jurisdiction vested on this court for
issuance of a writ of Habeas Corpus. There is no materials to
arrive at a finding that the child is under illegal confinement. If
the petitioner is of the opinion that he is entitled to get custody
W.P.(Crl) No. 392/2018
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of the child or that he has got right to have interim custody or
visitation on the child, he has to seek his remedy before the
appropriate court having jurisdiction under the Guardians and
Wards Act. It will be left open to the petitioner to seek
appropriate remedy in the case already instituted by the 6 th
respondent or by instituting any other new case, as advised.
5. Having found that there is no basis for the allegation
of illegal confinement, we do not find any merit in this writ
petition. Accordingly, the above writ petition fails and the same
is hereby dismissed. Needless to observe that, the liberty of the
petitioner is reserved to initiate appropriate legal steps as
mentioned above.
Sd/- C.K. ABDUL REHIM, JUDGE.
Sd/- R. NARAYANA PISHARADI, JUDGE.
ul/-
[True copy]
P.S. to Judge.