IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 WP(Crl.).No. 111 of 2008(S) --------------------------- PETITIONER: ------------ MR. RAFIC K.KARENGAL S/O.K.H.ABDUL KHADER, KHARANGAL HOUSE PAZHUNNANNA, CHOWANNOOR, TRICHUR (DIST) BY ADV. SRI.P.A.MOHAMMED SHAH RESPONDENTS: ------------- 1. MRS. AISHA RAFIC (JULIE THERESA MATHEW) D/O.CHACKO, VATTAKKOTTAYIL HOUSE LAKKATTOR P.O., KOTTAYAM (DIST) 2. GRACY MATHEW, W/O.CHACKO VATTAKKOTTAYIL HOUSE LAKKATTOR P.O., KOTTAYAM (DIST) 3. CIRCLE INSPECTOR OF POLICE PAMPADY POLICE STATION, PAMPADY P.O. KOTTAYAM (DIST) R3 BY GOVT.PLEADER SRI C.M.KAMMAPPU THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(CRL).NO.111/08 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE CERTIFICATE OF CONVERSION TO ISLAM DATED 26/6/2000. EXT.P2 TRUE COPY OF THE MARRIAGE CERTIFICATE DTD. 28/10/2001. EXT.P3 TRUE COPY OF THE PASSPORT OF RAISA RAFIC DATED 29/12/2003. P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- W.P.(Crl)NO.111 OF 2008 -------------------------------- Dated this the 7th day of April, 2008 JUDGMENT Raman, J. Petitioner alleging that his wife (the lst respondent) is under the illegal custody of her mother (2nd respondent) has filed this writ petition. It is not in dispute that the petitioner and the lst respondent are husband and wife and a female child was born to them in 2003. Both the petitioner and the lst respondent are working abroad. Recently, when they came down to Kerala, the lst respondent went to her parental house. Thereafter they have agreed to return back to Soudi Arabia. But she did not accompany him. The husband however went to Soudi Arabia and on knowing about that his wife has not accompanied him, he returned to India to know as to what happened to her and the child and why she did not accompany him. 2. Pursuant to the notice issued, the parties have appeared before us. We have interacted with the lst respondent and she alleges that harassment was meted out to her by the petitioner and that she had been beaten up by him. This is denied by the petitioner. This is not a Forum where we could take evidence and decide the issue regarding -2- WP(Crl).No.111/2008 the allegations so made. It need be said that the lst respondent submitted before us that she has changed her religion on her on accord prior to the marriage and this was an arranged marriage and not a love marriage. Now she is residing with her parents on her own accord and she is not under the illegal custody. Though the petitioner prays that the child be given to the petitioner, considering the fact that the child is a female child of 5 years old, it is not the exact Forum to decide as to whether the custody of the child could be given to the mother or the father depending upon the various circumstances. Prime facie we are satisfied that the custody of the child with the mother cannot be said to be illegal and further the child is a female child of 5 years old. 3. In the circumstances, leaving upon the right of the petitioner to approach the Family Court for appropriate relief, this writ petition is closed. 4. The observation made in this judgment is only for the purpose of disposal of the writ petition and it will not influence the mind of the Family Court. The Family Court will decide the issue arising for consideration before it, based on evidence that may be adduced by both sides. P.R.RAMAN, Judge. V.K.MOHANAN, Judge. kcv.