IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(Crl.).No. 323 of 2008(S) --------------------------- PETITIONER(S): --------------- MERCY PHILIP, AGED 39 YEARS, D/O.PHILIPPOSE, ROSE VILLA, CHATHAKULAM P.O PORUVAZHI, KOLLAM - 690 520. BY ADV. SRI.PAUL MATHEW (PERUMPILLIL) SRI.P.V.SREENIJIN SMT.K.B.SONY SRI.PRASUN.S SRI.SANU.S.PANICKER RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SUB INSPECTOR OF POLICE, CHOORANADU POLICE STATION, CHOORANADU. 3. CIRCLE INSPECTOR OF POLICE, SASTHAMKOTTA. 4. SUPERINTENDENT OF POLICE, KOLLAM. 5. SHAJAHAN, S/O.HANEEFA RAWTHER, KUZHIVELIL PADINJATTATHIL, SOORANADU P.O. KAMABALADI, PORUVAZHY, KOLLAM - 690 520. BY ADV. SRI.V.PHILIP MATHEW FOR R5 BY GOVT. PLEADER SRI.LAKSHMI NARAYAN. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(Crl) No.323 of 2008 :2: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 3.6.2008 IN OP.NO.622 OF 2007 OF THE FAMILY COURT, KOTTARAKKARA. EXT.P2 TRUE COPY OF THE ACKNOWLEDGMENT OF THE COMPLAINT DATED 17.11.2007 ISSUED BY THE WOMEN CELL. EXT.P3 TRUE COPY OF THE ACKNOWLEDGMENT OF THE COMPLAINT DATED 26.5.2008 ISSUED BY THE WOMEN CELL. RESPONDENT'S EXHIBITS; EXT.R5(a) COPY OF THE CERTIFICATE OF MARRIAGE DATED 11.6.2008 AS PER SPECIAL MARRIAGE ACT. EXT.R5(b) COPY OF THE O.P. TICKET DATED 14.11.2007 FROM GOVERNMENT HOSPITAL, SASTHAMCOTTA. //true copy// P.A. TO JUDGE. P.R.RAMAN & M.C.HARI RANI, JJ. ------------------------------- W.P.(Crl) No.323 of 2008 ------------------------------- Dated this the 2nd January, 2009 J U D G M E N T Raman, J. Heard the parties. The petitioner is the mother of three children of different ages. The eldest is the son who is at present with the mother. The other two children, a girl and a boy, are now admitted to the Infant Jesus School, Kattapana. The children were born to the petitioner through the fifth respondent. As per the judgment delivered on 3.6.2008 by the Family Court, Kottarakkara, in O.P.No.622 of 2007, filed by the petitioner herein, which was a petition under Section 10(ix) of the Divorce Act, it was held that there is no valid marriage in between the petitioner and the counter petitioner, and therefore, the divorce is not maintainable, and hence dismissed the petition. Alleging that the children were forcibly taken by the father, this writ of Habeas Corpus was filed. W.P.(Crl) No.323 of 2008 2 2. This Court, after hearing the parties, passed an order on 19.12.2008 permitting the petitioner to have the children during the second half of Christmas holidays and the father to have the children during the first half. Though there was a direction that the fifth respondent shall not hand over the child to any other party, there is an allegation from the petitioner that the children were entrusted to the brother of the fifth respondent. It will not be appropriate to enter a finding on the said allegation unless we take further evidence in the matter. Considering the limited scope of Habeas Corpus writ petition, we do not think, it is appropriate to take such evidence in this proceedings. However, it is necessary that an interim arrangement has to be made as regards the custody of the children. After hearing all the parties concerned and after interacting with the children, we direct as follows. The younger children who were now admitted in the Infant Jesus School, Kattapana, will continue their studies till the academic year. We permit the petitioner herein to have the W.P.(Crl) No.323 of 2008 3 custody of the children once in every month. The school authorities shall permit the children to go with the mother on the Friday evening previous to the second Saturday of every month and the mother shall return the children on Sunday evening to the school. It will be open to both the parties to approach the Family Court for appointment of either of them as Guardian and also for appropriate interim relief. The arrangement which we have made will continue till any order is passed by the Family Court. We appreciate on record the services rendered by Advocate Smt.K.Santha, the Conciliator, appointed by this Court. The petitioner is permitted to take the children to the school today itself. P.R.RAMAN, JUDGE M.C.HARI RANI, JUDGE. nj.