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Varghese Mathew vs The State Of Kerala on 5 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

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
-:2:-

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
-:3:-

C.K. ABDUL REHIM,

R. NARAYANA PISHARADI, JJ.
—————————————————–
W.P.(Crl) No. 392 OF 2018 S
——————————————————-
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
-:4:-

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
-:5:-

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
-:6:-

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
-:7:-

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.

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