IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WP(Crl.).No. 285 of 2011(S) ------------------------------------------------ PETITIONER(S): --------------------- SUDHEER,S/O.NAZEER,THUPPATTIYIL VEEDU, PACHIRA,PALLIPPURAM.P.O,THIRUVANANTHAPURAM. BY ADV. SRI.A.B.MOHANAKUMAR RESPONDENT(S): ------------------------- 1. THE DIRECTOR GENERAL OF POLICE,POLICE HEADQUARTERS,VAZHUTHACAUD,THIRUVANANTHAPURAM, PIN-695014. 2. THE DISTRICT SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM(RURAL),PMG JUNCTION, THIRUVANANTHAPURAM-695035. 3. THE SUB-INSPECTOR OF POLICE, VENJARAMOODU POLICE STATION,VENJARAMOODU, THIRUVANANTHAPURAM-695607. 4. NAZZEERA BEEBI,D/O.ABDUL MAJEED, CHAKKIAMKONATHU VEEDU,KUTHIRAKULAM,VEMBAYAM.P.O, NEDUMANGAD TALUK,THIRUVANANTHAPURAM-695615. R1 TO R3 BY SR. GOVERNMENT PLEADER SHRI C. M. KAMMAPPU. THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 285 OF 2011 S ------------------------------------------ Dated this the 10th June, 2011 JUDGMENT K.M. Joseph, J. Petitioner is the husband of the fourth respondent. A female child aged seven is born in the marriage. An ex parte Judgment was passed, it is stated, as Ext.P1. As per the same, custody is given to the mother. It is stated that an Application is filed to set aside the ex parte decree and the same is also pending. Petitioner has approached this Court seeking the following reliefs: “(i) A Writ of Habeas Corpus or other appropriate writ, order, direction, directing the respondents to produce the minor child, named Mazooda Ferzana, daughter of the petitioner and the 4th respondent, before this Honourable Court. (ii) Direct the 4th respondent to give temporary custody of the minor child to the petitioner for periods specified by the Court. W.P.(CRL).NO.285/2011 S 2 (iii) Direct the 4th respondent to educate the child under Article 21(A) of the Constitution of India or otherwise hand over custody of the child to the petitioner for that purpose.” Learned counsel for the petitioner also brought to our attention Ext.P3. It is stated that no orders are passed on Ext.P3. 2. As far as a Writ of Habeas Corpus is concerned, we notice that the custody of the child is with the respondent, apparently pursuant to Ext.P1. Therefore, as things stand, we cannot hold that the custody is illegal. However, the case of the petitioner appears to be that subsequent to the obtaining of custody pursuant to Ext.P1, the custody is illegal because of rivalry between the two parents, and the child is not taking food. It is also stated that no orders are passed on Ext.P2 which is an Application filed to stay the execution of the decree. 3. As already noted, we cannot be persuaded to hold that the custody is illegal as such. No doubt, orders of custody are always W.P.(CRL).NO.285/2011 S 3 open to modification depending on change in circumstances. But, we are not called upon to decide the issue and the proper forum would be the Family Court. We also, however,leave open the right of the petitioner to prosecute his application to set aside Ext.P1 which is said to be an ex parte order. 4. As far as orders not being passed on Ext.P3 is concerned, we notice that the Application itself is dated 1.6.2011. We make it clear that it will be open to the petitioner to file appropriate petition seeking advancement of the Application wherein he can press for urgent orders in the matter. 5. As far as the third prayer is concerned, we are of the view that in the circumstances of the case, there is absolutely no scope for canvassing such a prayer. It is always open to the petitioner to seek appropriate relief before the Family Court. 6. We see no merit in the second prayer, as the prayer is to direct the fourth respondent to give temporary custody for the period to be specified by the Court and that is also a matter which W.P.(CRL).NO.285/2011 S 4 the petitioner can seek appropriate relief from the Family Court. Even though the learned counsel for the petitioner pointed out that no orders are passed on Ext.P2, we notice that the decree has already been executed and custody is with the respondent. The Writ Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge W.P.(CRL).NO.285/2011 S 5