IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(Crl.).No. 352 of 2011(S) --------------------------- PETITIONER(S): --------------- KUNHABU, S/O.ABOOBACKER, THAZHE PARAMBATH HOUSE, POST KANNUKARA, ONCHIYAM AMSOM, KANNUKARA DESOM, VATAKARA TALUK. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. THE SUPERINTENDENT OF POLICE, KOZHIKODE RURAL, VATAKARA 673002. 2. THE SUB INSPECTOR OF POLICE, CHOMBALA POLICE STATION, KOZHIKODE DISTRICT 673002. 3. ANEESH T.M., S/O.ANANDAN, THEKKE MAVALLI HOUSE, KANNUKARA AMSOM DESOM, POST KANNUKARA, PIN 673102, VATAKARA TALUK, KOZHIKODE DISTRICT. 4. ANANDAN, THEKKE MAVALLI HOUSE, KANNUKARA AMSOM DESOM, POST KANNUKKARA, PIN 673102, VATAKARA TALUK, KOZHIKODE DISTRICT. 5. NALINI, W/O.ANANDAN, THEKKE MAVALLI HOUSE, KANNUKARA AMSOM DESOM, POST KANNUKKARA PIN 673102, VATAKARA TALUK,KOZHIKODE DISTRICT. R1, R2 BY GOVT. PLEADER SRI.C.M.KAMMAPPU R4, R5 BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WP(CRL).352/11 PETITIONER'S EXHIBITS: EXT.P1:THE TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 21.7.2011. /TRUE COPY/ THOTTATHIL B. RADHAKRISHNAN & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(Crl)NO: 352 OF 2011 ----------------------------------------------------------- Dated this the 2nd day of August, 2011. JUDGMENT Thottathil B. Radhakrishnan, J. 1.The petitioner alleges that his daughter with her minor son Muhammed Amjad is in the custody of the third respondent who is the son of respondents 4 and 5. Counter affidavit is filed by respondents 4 and 5 saying that the third respondent does not reside with them. 2.The petitioner's daughter Naseema is present before us. She says that she is 27 years old. She is well informed of the consequences of her actions. She has husband and two children. She now lives with the third respondent who has wife. These statements are made by her. She is quite firm in her view that she does not want to go with the petitioner. She fears of physical harm at the hands of the petitioner. We are inclined to think that the petitioner's life and liberty are W.P(Crl) 352/2011 2 matters of which she has given reasonable thinking and has taken a decision of her own volition to stay with the third respondent who is now employed in Chennai. We are however, not prepared to accede to the continuance of Muhammed Amjad along with his mother in the aforesaid situation. Muhammed Amjad's father is abroad. May be that there are bickerings between the parents of the child. However, Naseema's paternal home where she was residing till she went off with the third respondent is, as of now, the safest place for the minor Muhammed Amjad. Since it is the period of fasting before Ramzan, the petitioner is unable to come over. He has sent his elder son Shameer K.K. We are inclined to give the minor child Muhammed Amjad to the custody of the said person. This will however, be subject to any order that the child's mother Naseema or his father may obtain from the competent court in relation to guardianship and custody of that child. We also do not express anything as W.P(Crl) 352/2011 3 regards the elder son Anshad, which now lives with the maternal grand father. 3.For these reasons we order this writ petition by holding that Naseema shall hand over the child Muhammed Amjad to the petitioner's son Shameer K.K., who shall file an affidavit undertaking the custody, care and welfare of the said minor child. Such affidavit shall be filed before the Registrar General of this Court before 4 p.m today and he may then take the child as per this order. Sd/- THOTTATHIL B. RADHAKRISHNAN, Judge Sd/- K. SURENDRA MOHAN, Judge jj