IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(Crl.).No. 202 of 2011(S) ------------------------------------ PETITIONER(S): --------------------- DR.K.V.LEJI, AGED 47, S/O.LATE B.I.VELAYUDHAN, LEJI MANZIL, KULAYETTIKARA, KANJIRAMATTOM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.K.V.KUMARAN SRI.B.K.PURUSHOTHAMAN RESPONDENT(S): ------------------------ 1. MRS.LEELA, AGED 57, W/O.MR.CHANDRAMOHAN, DRAMAKUDI HOUSE, MANAKKAD THERIYIL, VADAKKEVILA P.O., KOLLAM DISTRICT-691010. 2. DR.MRS.TWINKLE MOHAN, AGED 36, W/O.THE PETITIONER, WORKING AS A DOCTOR IN DUBAI, WHO HAS EXECUTED A POWER OF ATTORNEY TO HER MOTHER, THE IST RESPONDENT, LIVING WITHIN THE JURISDICTION OF THIS HON'BLE COURT. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM-691001. R1 BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR R3 BY GOVERNMENT PLEADER SRI.C.M.KAMMAPPU. THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR.NO.202 OF 2011: PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE OP NO.145/2007 ON THE FILE OF THE FAMILY COURT, KOTTARAKKARA. EXT.P2.TRUE COPY OF THE AFFIDAVIT DATED IST OCTOBER 2009 FILED BY THE 2ND RESPONDENT IN OP NO.145/2007 ON THE FILE OF THE FAMILY COURT,KOTTARAKKARA. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(Crl.) No. 202 of 2011-S ---------------------------------------------- Dated, this the 21st day of June, 2011 J U D G M E N T K.M.Joseph, J. The prayer in the writ petition reads as under: “ to issue a Writ of Habeas Corpus to the Ist respondent to produce the petitioner's minor son Abhishek before this Hon'ble Court through the 3rd respondent very urgently.” 2. Petitioner and the 2nd respondent were married on 11.12.2000. A male child is born to them. Petitioner's wife deserted the petitioner. Now, she is employed as a Doctor in Dubai. Ext.P1 is the petition filed by the 2nd respondent before the Family Court, Kottarakkara. Ext.P1 is for recovery of money towards cost of the 2nd respondent's gold ornaments and household articles said to be appropriated by the petitioner and his mother. There is reference to petitioner's mother and his wife and the members of her family belonging to Ezhava caste. But, petitioner's father belonged to Scheduled Caste. It is the case of the petitioner that the marriage was a negotiated marriage and his father passed away 11 years prior to the marriage and there was WPCR 202/2011 -2- no need or occasion to disclose the Scheduled Caste status of the petitioner's father. Petitioner secured admission for Post Graduate studies in the Scheduled Caste reservation quota. It is his case that revelation of the petitioner's father's Scheduled Caste status has been the real reason for the 2nd respondent's drifting from the petitioner and her desertion of the petitioner. Petitioner is prepared to forget and forgive all the misdeeds and misconducts on the part of his wife. He is anxious to cohabit with her. For this purpose the petitioner is moving the Family Court for restitution of conjugal rights. It is stated that the conduct of the 2nd respondent in having taken the custody of the petitioner's minor child out of India without the knowledge and the permission of the petitioner is most unbecoming of a wife in addition to cruelty. It is further stated that the Ist respondent in her affidavit filed before the Family Court, Kottarakkara has undertaken to produce the petitioner's minor son before the Court as and when required as she did on 22.8.2009. It is stated that petitioner undertakes to take care of his minor son. 3. Though we had not issued notice there is appearance for the Ist respondent. According to the learned WPCR 202/2011 -3- counsel for the Ist respondent, the petition itself is not maintainable. He would also point out that no petition for restitution of conjugal rights has been filed. According to him, the proper remedy is to approach the Family Court. 4. We are also of the view that writ petition may not lie and the proper remedy is to approach the competent Family Court. Without prejudice to the right of the petitioner to approach the Family Court seeking the remedies in respect of custody of children/ restitution of conjugal rights or any other rights available , the Writ Petition (Criminal) is closed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS