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 1ST JULY 2011 / 10TH ASHADHA 1933 WP(Crl.).No. 317 of 2011(S) ------------------------------------ PETITIONER(S): --------------------- K.MOHANA SUBRAMANI, AGED 43 YEARS,S/O.LATE MADHAVAN,KAMMETTIERI, PANDALAYANI,KOYILANDI P.O.,KOZHIKODE BY ADV. SRI.MANJERI SUNDERRAJ SMT.K.K.PREETHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001 2. DIRECTOR GENERAL OF POLICE, KERALA POLICE, POLICE HEAD QUARTERS, TRIVANDRUM-PIN-695001 3. SUPERINTENDENT OF POLICE (RURAL) RURAL SP'S OFFICE, VATAKARA, PIN-673518. 4. STATION HOUSE OFFICER, KOYILANDY POLICE STATION,KOYILANDY, KOZHIKODE, PIN-673106 5. T.SINDHU, AGED 36 YEARS, S/O.MADHAVI GOVINDAN, THAVARA HOUSE, NEAR PUTHIYAKAVU, PAPPINISSERY P.O WEST KANNUR-670561 R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.P.K.BABU. THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR.NO.317 OF 2011: PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF OP45/2011 FILED BY THE PETITIONER IN FAMILY COURT, VADKARA. EXT.P2.TRUE COPY OF IA 81/2011 IN OP 45/2011 CONTAINING PETITIONER'S COMPLAINT TO SIP, QUILANDY PS WITH RECEIPT. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(Crl.) No. 317 of 2011-S ---------------------------------------------- Dated, this the Ist day of July, 2011 J U D G M E N T K.M.Joseph, J. Petitioner has approached this Court seeking a direction to trace out and produce his missing son before this Court. 2. Briefly put, the case of the petitioner is as follows: Petitioner is the husband of the 5th respondent. He is the natural guardian of the minor child born on 23.3.2005. The child is aged 6 years as of now. Petitioner was constrained to file Ext.P1 petition for restitution of conjugal rights which is pending. The 5th respondent took away the child from the school and he is not allowed to appear for the final examination. Thereafter the petitioner filed Ext.P2 I.A.No.81/2011 under Section 26 of the Hindu Marriage Act seeking custody. The Family Court, Vadakara holds sitting only three days in a week. The 5th respondent has no more right to ordinary custody of the Hindu minor as he has passed the age of 5. She is keeping the child away and secreted somewhere without access to the father which WPCR 317/2011 -2- act is wrongful and actionable. 3. We had called for a report from the Family Court, Vadakara. The report reads inter alia as follows: “3.O.P.45/2011 is for restitution of conjugal rights filed by the husband. I.A.81/2011 filed on 23.3.2011 is a petition for getting custody of the minor child. The said I.A was posted along with the O.P on 4.5.2011. Thereafter the said petition came up for consideration on 2 days ie. 4.5.2011 and 7.6.2011. On 4.5.2011, respondent prayed for objection and the matter was adjourned to 7.6.2011 for filing objection as last chance. On 7.6.2011 the petitioner was absent and there was no representation. Respondent sought time for filing objection and my learned predecessor posted the matter to 12.7.2011 for filing objection. 4. I may submit that there were altogether 23 days sitting since the filing of I.A. 81/2011. 5. I may further submit that I took charge only on 28.6.2011. The I.A now stands posted to 12.7.2011 and respondent has not filed counter. There are only 2 days sitting in a week in the Family Court. Considering all these aspects, I humbly request that 3 weeks time may kindly be granted to dispose of I.A.81/2011.” 4. In the report it is stated that the regular sitting in the Family Court is two days in a week on Tuesday and Wednesday. In the circumstances of the case, we are of the view WPCR 317/2011 -3- that we need not interfere int his matter. Petitioner has already approached the Family Court with a petition under Section 26 of the Hindu Marriage Act. We dispose of the Writ Petition directing that the Family Court, Vadakara will dispose of Ext.P2 within a period of one month from the date of production of a copy of this judgment. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS