IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 WP(Crl.).No. 174 of 2010(S) --------------------------- PETITIONER(S): --------------- AMINA, D/O. LATE ABOOBACKER, KOTTAYIL HOUSE, ARAMANGANAM, P.O. KALANAD, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. SMT.N.MAHALAKSHMI RESPONDENT(S): --------------- 1. B.A. ABDUL HAMEED, S/O. ABDULKHADER, RAMSEENA MANZIL, BANDICHAL, P.O. THOKKIL, VIA CHENGALA, KASARAGOD TALUK. 2. THE SUB INSPECTOR OF POLICE, STATION HOUSE OFFICER, KUMBALA, KASARAGOD DISTRICT. *(CORRECTED AS `BAKAL') *CAUSE TITLE CORRECTED BY STRIKING OFF THE WORD `KUMBALA' WITH RESPECT TO THE SECOND RESPONDENT AND INSTEAD INSERTING `BAKAL` VIDE ORDER DATED 19/5/10 IN I.A.NO.6201/10 IN WPCR 174/10-S. ADV. SRI.T.B.SHAJIMON FOR R1 SMT.GOVINDU P.RENUKADEVI FOR R1 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No. 174 of 2010-S ------------------------------------------------- Dated this the 31st day of May, 2010 JUDGMENT Basant,J. This petition is filed by the petitioner/mother complaining that her daughter aged 2 years and 9 months (born on 30/8/07) has been illegally taken away from her by use of force by the 1st respondent - her husband on 29/4/10. Thereafter the child, it was alleged, was being illegally detained by the 1st respondent - the father of the child. 2. This petition was filed on 17/5/10. This judgment must be read in continuation of the earlier orders passed in this case resting with the order dated 24/5/10. 3. The 1st respondent - husband, contends that the child was not forcibly taken away as alleged by the petitioner. The child was with the 1st respondent for the past about 10 months, it is W.P.(Cri) No. 174 of 2010 -: 2 :- contended. 4. Another Bench vide earlier order dated 24/5/10 had directed that the child be permitted to remain in the custody of the petitioner. The case was posted to this date and accordingly it has come up for hearing today. 5. Today, when the case is called, the petitioner and the 1st respondent are present. They are represented by their counsel. The child has been brought to Court by the petitioner/mother. It is submitted that O.P.No.175/10 has been filed before the Family Court, Kasaragod, and the same is pending before that court. That case stands posted for service of notice on the respondent to 6/7/10. No interim application has been filed in that case, it is submitted. 6. The child has been brought to Court. The child is now in the custody of the petitioner/mother. We permitted the father to have interactions with the child till 4.30 p.m. today. 7. In the peculiar facts and circumstances of this case, we do not think it necessary to proceed to resolve the dispute as to how the child happened to be in the custody of the father when this petition was filed on 17/5/10. We take note of the fact that the child is a female child and it has not completed 3 years yet. In these circumstances, we permit the petitioner to keep the W.P.(Cri) No. 174 of 2010 -: 3 :- custody of the child subject to the following specific directions: (i) The child shall be produced before the Family Court, Kasaragod, on 3/6/10. (ii) The parties shall appear before the Family Court on that date. The petitioner shall produce the child before the Court on that date. (iii) The Family Court shall advance hearing of the case - O.P.No.175/10 to that date. Both parties shall be at liberty to stake the claim for interim custody of the child and produce all relevant materials. The Family Court shall consider all relevant circumstances and proceed to pass appropriate ad interim orders on 3/6/10 and appropriate orders in the I.A. as expeditiously thereafter as possible - at any rate, within a period of two weeks from 3/6/10. We observe specifically that we have not intended to express any opinion on merits on the rival contentions. (iv) Compliance shall be reported to this Court by the Family Court. 8. This writ petition is accordingly allowed with the above directions. 9. Call this writ petition again on 21/6/10 to consider the report of the Family Court for further directions, if any, necessary. W.P.(Cri) No. 174 of 2010 -: 4 :- 10. The Registry shall forthwith communicate these directions to the Family Court. 11. Hand over copies of this judgment to the learned counsel for both the petitioner and respondent. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge