IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(Crl.).No. 97 of 2008(S) -------------------------- PETITIONER: ------------ AUGUSTINE MATHEW, AGED 60 YEARS, SON OF THE LATE SRI.MATHEW, RESIDING AT NELLIPARAMBIL, CHALIKKAVATTOM, VYTTILA, ERNAKULAM, COCHIN-19. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, PALARIVATTOM. 3. MOLLY @ MARY, AGED 42 YEARS, KONTHURUTHY HOUSE, ELAMAKKARA P.O., COCHIN-26. 4. BABU @ SEBASTIAN, KONTHURUTHY HOUSE, ELAMAKKARA P.O., COCHIN-26. BY ADV. SMT.SHAHNA KARTHIKEYAN (ADV.COMMR.) SRI.JOHNSON ABRAHAM FOR R3 & R4 SRI.NELSON ABRAHAM FOR R3 & R4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRL)97/2008 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE SETTLEMENT DEED NO.7309 OF S.R.O., ERNAKULAM. EXT.P2 TRUE COPY OF THE DRAFT CORRECTION DEED DATED 28/6/2005. EXT.P3 TRUE COPY OF THE CANCELLATION DEED NO.4010/2007 OF S.R.O., ERNAKULAM. RESPONDENTS' EXTS: EXT.R3A TRUE PHOTOCOPY OF THE IST PAGE OF S.S.L.C. BOOK OF THE 3RD RESPONDENT. EXT.R3B TRUE PHOTOGRAPHS OF PAILY, HIS DAUGHTER, SON-IN-LAW AND GRAND CHILDREN. EXT.R3C TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, ERNAKULAM. EXT.R3D TRUE COPY OF INJUNCTION ORDER IN O.S.No.1347/07 OF MUNSIFF'S COURT, ERNAKULAM. EXT.R3E TRUE COPY OF THE DISCHARGE SUMMARY WITH SCAN REPORT FROM LISIE MEDICAL INSTITUTIONS, ERNAKULAM. EXT.R3F TRUE COPY OF BILLS AND RECORDS IN CONNECTION WITH ALLOPATHIC TREATMENT OF PAILY. EXT.R3G TRUE COPY OF BILLS AND RECORDS IN CONNECTION WITH AYURVEDA TREATMENT OF PAILY. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- W.P.(Crl)NO.97 OF 2008 -------------------------------- Dated this the 6th day of June, 2008 JUDGMENT Raman,J. Petitioner alleges that his brother Paily is under the illegal custody of respondents 3 and 4. Third respondent is the daughter of Paily and the 4th respondent is her husband. Paily is aged 75 years and is a widower. Paily and his wife were living separately for several years and it is admitted that 3rd respondent, their only child, was brought up by the mother. A settlement deed was executed by Paily in favour of his daughter in 2004 as evidenced by Ext.P1. But despite that fact the 3rd respondent was not interested to take care of her father, but was only interested in getting his property. Later, Paily fell ill and he was admitted in the Ayurveda Hospital, Puthiyakavu for treatment. But respondents 3 and 4 did not visit Paily at any point of time during the hospitalisation period and they never took care of Paily and it was the petitioner and other relatives, who took care of Paily. It is also alleged that respondents 3 and 4 had no love and affection towards him and their only intention to snatch away the property belonging to Paily. -2- WP(Crl).No.97/2008 After his discharge from the hospital, Paily cancelled the settlement deed by Ext.P3. On coming to know of the same, respondent 3 and 4 came to Paily's house and took him forcibly to the hospital without his consent. It is also mentioned that a suit O.S.nO.1347/2007 was filed by the 4th respondent against the petitioner's sisters and his nephew and he obtained an order of injunction against the defendants therein from entering into the property, where Paily was residing. It is alleged that Paily was taken away from his residence and kept in the custody of respondents 3 and 4 and nobody else is permitted to visit him. It is also mentioned in the writ petition that Paily is being tortured mentally and physically and he is not given proper food or medical attention. Though a complaint was made to the Police, there was no response. Hence this writ petition seeking for a direction to produce the body of Paily and to release him. 2. A Commissioner was appointed by this Court to examine Paily and the Commissioner submitted a report, which shows that Paily has suffered stroke and he experienced difficulties to speak and he is bed- ridden. On coming to know that Paily is a patient and to know more about the treatment given to him and to see whether daughter is looking after her father properly, we issue notice to respondents 3 and 4 by Special -3- WP(Crl).No.97/2008 Messenger. Respondents 3 and 4 entered appearance through counsel and filed a counter affidavit. In the counter affidavit filed by the 3rd respondent, she has denied the allegations made in the writ petition. It is also alleged that while she was in the age of 8, her mother was constrained to seek shelter in her parental house due to severe harassment and torturing from father's sisters and brother, the petitioner herein. The 3rd respondent had been living along with her father Paily at Kaloor from the age of 8 till her marriage and even after the marriage, she was looking after of all his affairs. Till she attained the age of 18 the 3rd respondent was not permitted to go and see her mother by the sisters and brother of her father. Thereafter, the 3rd respondent started visiting her mother at her parental house against the wish of her father's sister and brother. At the time of 3rd respondent's marriage, father's sisters and brother (petitioner herein) instigated her father not to participate in the marriage; but after the marriage, her father repented the same and came to the 3rd respondent and brought the bride and bridegroom to his house. Thereafter, respondents 3 and 4 and Paily were living together happily and very cordial. It is also averred that the petitioner and Paily were inimical terms for the last several years. Ext.P1 is executed in favour of the 3rd respondent out of -4- WP(Crl).No.97/2008 his love and affection. When there was an attempt to trespass into the property by the relatives of her father, the 4th respondent instituted a suit O.S.No.1347/2007 before the Munsiff's Court, Ernakulam and obtained an injunction order Ext.R3(d) produced in this case. On 5/8/2005 Paily was admitted in the Lisie Hospital, Ernakulam after a stroke and his ability to speak was lost and his right side of the of the body paralyzed due to stroke. He was discharged from the hospital and re-admitted in the same hospital on 18/8/2005 and diagnosed Large (Lt) MCA territory infarct. The discharge certificate is produced as Ext.R3(e). It is asserted that only 3rd and 4th respondents were looking after Paily and the entire expenditure for his treatment were met by them. The petitioner came to know to see his brother only one week after the discharge of Paily from the hospital. Ext.R3(f) are the bills and prescriptions for the treatment given to him. The present attempt on the part of the petitioner is only to harass respondents 3 and 4. It is also averred that even an ayurveda treatment was given to Paily and Ext.R3(g) is produced in evidence thereof. A G.O.P.No.868/2007 was filed before the District Court, Ernakulam by the 3rd respondent to get her appointed as guardian, since the petitioner is creating problems everyday in the matter of her father -5- WP(Crl).No.97/2008 Paily and it is still pending. In spite of notice, the petitioner did not contest the matter. 3. From the pleadings of the parties, it can be seen that there were disputes between 3rd respondent's mother and the petitioner and his sisters, who are none other than the 3rd respondent's brother and sisters. She was residing separately in her parental house and she died, and Paily became a widower and he continued to reside in his house at Kaloor. Even the marriage of the 3rd respondent with the 4th respondent was not liking of the petitioner and thereupon a family dispute between the parties arises. It is not necessary to go deeply into these facts, as the only point that arises for consideration in the habeas corpus writ petition is as to whether the allegation of illegal custody by respondents 3 and 4 is true or not. 4. The 3rd respondent is the only daughter of Paily and perhaps she is the best person to take care of her father-Paily, who is an aged person, who has suffered two strokes and undergone treatment in the Lisie Hospital and thereafter in the Ayurveda Hospital. The report of the Commissioner also shows that Paily is not in a position to communicate his ideas, as he has lost his speech and one side got paralyzed. In such -6- WP(Crl).No.97/2008 a situation Paily is a bid-ridden person, who requires constant attention and nursing. We interacted with the petitioner, the 3rd respondent and her husband (4th respondent). We understand that the 3rd respondent is a housewife and she is looking after her father to the extent possible, though there are financial constrains. Her husband is only a driver. However, she would have been able to look after her father. The custody of the father with the 3rd respondent-daughter cannot be said to be illegal. The care taken by the 3rd respondent in the factual situation gives no room to doubt that she is not neglecting her father. We do not find any merit in this writ petition. Writ Petition is dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.