IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(Crl.).No. 244 of 2011(S) --------------------------- PETITIONERS: --------------- DHANYA.T.S., W/O ABHILASH A.A., THAZHATHTU VEETIL HOUSE, S.N.NAGAR, P.O.CHIYYARAM, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SMT.M.M.DEEPA SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS: --------------- 1. THE INSPECTOR GENERAL OF POLICE,THRISSUR RANGE THRISSUR-680001. 2. THE STATION HOUSE OFFICER, NEDUMBUZHA POLICE STATION, NEDUMBUZHA-680015. 3. ABHILASH.A.A, S/O ARAVINDAN, BHARATH BAKERY, J.J.COMPLEX, BANGALORE HIGH ROAD, SREE PERUMBATHUR, KANCHIPURAM DISTRICT, CHENNAI-600069. 4. ARAVINDAN, BHARATH BAKERY, J.J.COMPLEX, BANGALORE HIGH ROAD, SREE PERUMBATHUR, KANCHIPURAM DISTRICT, CHENNAI-600069. ADV. SRI.MILLU DANDAPANI FOR R3&4 GOVERNMENT PLEADER, SHRI C M KAMAPPU FOR R1&2 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No. 244 of 2011 S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of June, 2011 JUDGMENT K.M. Joseph J., The petitioner seeks a writ of habeas corpus to produce her daughter, aged six years and son aged, two years before this Court and to be released to her custody. 2. Briefly put the case of the petitioner is as follows. The petitioner is the wife of the 3rd respondent, from whom the alleged detenues' are born. Though there were some dispute between the petitioner and the 3rd respondent emanating from cruel treatment meted out by the 3rd respondent and in-laws, the petitioner tried to preserve the marital relationship in view of the children. It is her case that the minor children are illegally detained by the 4th respondent in an unknown remote destination. W.P.(Crl.) No. 244 of 2011 :2: 3. Detailed counter affidavit is filed by the 3rd respondent on behalf of the 4th respondent also. They have produced Exts. as Ext.R3(a), which is a petition under Sec.9 of Hindu Marriage Act filed by the petitioner herein, Ext.R3(b) is the copy of Transfer Petition filed by the petitioner before the Supreme Court, Ext.R3(c) order passed in that Transfer Petition and Ext.R3(d) the Doctor Notes Sheet. In brief it is the case of respondents 3 and 4 that the petitioner has certain problems. The respondents 3 and 4 have denied the case of cruelty. It is also their case that the petitioner does not have financial capacity and in this regard they relied on the averments contained in Ext.R3(b). It is also stated that the petitioner went on her own. Respondents 3 and 4 have also arranged school admission for the girl child, it is stated. 4. We heard learned counsel for the petitioner and learned senior counsel for the respondents. We also interacted with the petitioner and the third respondent. We further interacted with the girl child, aged six years who will be studying in the 2nd standard this year. We have passed interim orders granting custody of the minor children to the petitioner-mother. From our interactions with W.P.(Crl.) No. 244 of 2011 :3: the girl child, we got the distinct impression that she would like to be with her mother. Learned senior counsel for the respondents would emphasise that the party respondents and the mother of the third respondent are deeply attached to the children, in particular to the younger child. 5. We cannot ignore the fact that the elder child is a girl child. Further more she has a clear inclination to be with her mother. Still further more she is at a tender age, namely six years. The mother of the petitioner is residing with the petitioner. There is controversy regarding the income of the parties. But we would think that the paramount consideration being the welfare of the child, we cannot incline the crucial inputs which we have adverted to. We think that the parties must be essentially be relegated to approach the Family Court in regard to the matter as a permanent solution. Pending the same, we are inclined to think that the interest of justice will be best served if the girl child is sent with the petitioner-mother and the younger child be allowed to be retained by the father. This will subject to any orders which may be passed by the Family Court which may be approached by both the parties. W.P.(Crl.) No. 244 of 2011 :4: 6. Accordingly we dispose of the Writ Petition as follows. In pursuance of the order passed by the Family Court, the petitioner is already having temporary custody of the girl child, Abhirami. The party respondents can keep the younger son, Varun Krishna. The petitioner will hand back custody of Varun Krishna to the respondents 3 and 4 today itself, while the petitioner will have custody of the girl child. This will be subject to the orders passed by the Family Court. Subject to the orders that may be passed in respect of custody of the children. We record the submission of the learned senior counsel for the respondents 3 and 4 that respondents 3 and 4 will not object to the petitioner obtaining Transfer Certificate in relation to the daughter from the School, where she is currently studying. We make it clear that when the matter is taken by the Family Court on any petition filed by either parties, the Family Court will proceed with the matter untrammeled by anything contained in this judgment. W.P.(Crl.) No. 244 of 2011 :5: 7. We record the submission of the learned counsel for the petitioner and learned Senior counsel for respondents 3 and 4 that neither the petitioner nor respondents 3 and 4 have no objection in the petitioner/ respondents 3 and 4 calling to talk with the wards left in the custody of either parties. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/