IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(Crl.).No. 232 of 2010(S) --------------------------- PETITIONER: --------------- LISSY DAVID, W/O.DAVID, AGED 45 YEARS, ALUMVILAYIL, KUDASSANADU, PALAMEL VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER SMT.NISHA JOHN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF POLICE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 2. SUPERINTENDENT OF POLICE, ALAPPUZHA. 3. SUB INSPECTOR OF POLICE, NOORANADU POLICE STATION, NOORANADU. 4. DAVID, ALUMVILAYIL, KUDASSANADU, PALAMEL VILLAGE, ALAPPUZHA DISTRICT. 5. SHYMA, AGED 24, D/O.RABIYATHU, PADINJARECHARUVIL VADAKKETHIL, AADIKKATTU KULANGARA MURI, PALAMEL VILLAGE, NOORANADU. GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR ADV. SRI.RASHEED C.NOORANAD FOR R4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.232 of 2010 ********************* Dated this the 7th day of July, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce her two minor sons, Deni David (date of birth - 13.11.1995) and Dino David (date of birth - 09.09.1997). They were students of the 9th and 6th standards of S.V.H.S.S, Thandanavila. According to the petitioner, her children were attending the school, but were forcibly taken away by the 4th respondent, their father, on 22.02.2010. The 4th respondent had allegedly developed an illicit relationship with the 5th respondent, who was employed as a sales girl in a shop run by the 4th respondent. According to the petitioner, the 4th and 5th respondents had gone away to some place illegally and had forcibly taken away her minor children also. On account of such conduct of the 4th and 5th respondents, the petitioner was denied the opportunity to meet her children and more importantly the children were denied their educational rights. The children were forced to discontinue their education W.P(Crl.) No.232 of 2010 2 during the academic year 2009-2010. Whereabouts of the children were not known. Despite a crime registered by the Nooranad police under the caption `person missing' (Crime No.157 of 2010), the children were not traced. It is in this helpless situation that the petitioner came to this Court with this petition on 16.06.2010. 2. This petition was admitted on 17.06.2010. Directions were issued from time to time. This judgment must be read in continuation of the earlier orders passed by us resting with the order dated 05.07.2010. 3. Today when the case is called, the petitioner is present. She is represented by her counsel. The eldest child of the petitioner and the 4th respondent - Ms.Densy David, aged 22 years (date of birth - 15.09.1987), has also come to Court along with her. The 4th respondent has come to Court. He is represented by a counsel. Along with him, the two minor children Dino David and Deni David have also been brought to Court. Respondent No.5, who had come along with the 4th respondent on the last date of posting, ie. 05.07.2010, has not come to Court today. W.P(Crl.) No.232 of 2010 3 4. The 4th respondent accepts that he had gone away along with his two minor children. He has his own reasons as to why he had to resort to such conduct. Life with the petitioner was miserable and the 4th respondent candidly accepts that he had gone away from his native place along with the 5th respondent and both his children. He was employed earlier in the Armed Forces at Meghalaya and he had admittedly gone along with the 5th respondent and his minor children to Meghalaya. There, he had got both the children admitted to St.Albert's School, Shillong. The children were admitted to the 9th and 6th standards as the said school was not willing to admit the children to the next higher standards for want of relevant documents from the school where the children had earlier studied. 5. The 4th respondent submits that on coming to know of the pendency of this proceedings, he has now come back from Shillong for good along with the 5th respondent and the two minor children. He has obtained the transfer certificates of both the children from the St.Albert's School, Shillong. That shows that they were students of the 9th and 6th standards respectively. W.P(Crl.) No.232 of 2010 4 6. In the presence of their counsel, who offered sublime assistance, we interacted with the parties separately initially and later jointly. We are happy to note that the parties have come to agreements and understandings. Both parents realise the need to ensure that the minor children do not lose a school year on account of the disagreement and disputes between the parents. The petitioner and her daughter assure the Court that S.V.H.S.S, Thandanavila is agreeing to admit Dino David and Deni David, the two minor children in the 7th and 10th standards notwithstanding the fact that they had not appeared for the annual examination during the previous academic year. That concern was correctly imbibed by both the parents and we find that they have come to an understanding on the basis of this compelling concern of both of them. 7. We are informed that the petitioner has filed O.P.No.645 of 2010 before the Family Court, Alappuzha claiming custody of the two minor children. I.A.No.1651 of 2010 has also been filed by the petitioner for interim custody of the children pending final disposal of O.P.No.645 of 2010. It is submitted that no specific date of posting is yet given. W.P(Crl.) No.232 of 2010 5 8. We are happy to note that the parties have settled some of their disputes and have agreed on mutually acceptable terms. As agreed by both sides, we state below the terms agreed upon and direct that the said terms be observed strictly until appropriate further directions are issued in O.P.No.645 of 2010 or in the pending I.A or in appropriate further proceedings that may be initiated by either side. The area of agreement and the consequent directions are given below: i) Both the minor children shall leave the Court today along with the petitioner and Ms.Densy David, the elder daughter of the couple; ii) The petitioner shall get the minor children admitted to the 7th and 10th standards in the S.V.H.S.S, Thandanavila at the earliest - during the course of this week itself; iii) The 4th respondent agrees to pay an amount of Rs.10,000/- (Rupees Ten thousand only) as maintenance every month for his wife and 3 children. Such payment shall be made in advance by the 7th day of every English calendar month. The maintenance payable for the month of July, 2010 is paid straightaway by the 4th respondent and received by the petitioner; W.P(Crl.) No.232 of 2010 6 iv) The 4th respondent agrees that in addition to the said amount of Rs.10,000/-, educational expenses of the eldest daughter Ms.Densy David - all payments payable to the college and hostel authorities shall be met by him; v) The petitioner agrees that the 4th respondent shall be permitted to continue the stationery etc. business which he used to carry on before he left his native place for Shillong. The petitioner undertakes that she shall not in any way interfere with or cause any disturbance or difficulties for the conduct of the business by the 4th respondent in such shop; vi) The petitioner further agrees that all properties belonging to the 4th respondent can be managed and the income can be taken by him without any let, hindrance or interference by the petitioner; vii) The petitioner agrees that though the children will continue to reside with her, their father, the 4th respondent, shall be permitted to meet the children and have interactions with the children at the shop referred above which is adjacent to the residential building occupied by the petitioner along with her children; W.P(Crl.) No.232 of 2010 7 viii) Both parties shall appear before the Family Court in O.P.No.645 of 2010 on 16.08.2010. Appropriate directions can be sought from the Family Court and the Family Court shall be at liberty to pass appropriate further directions regarding custody, interim custody etc. in accordance with law; ix) The 4th respondent agrees to comply with the directions issued by the Judicial Magistrate of the First Class-II, Mavelikkara on 12.03.2010 in M.C.No.53 of 2010 and the petitioner agrees not to take any further steps for execution of the said directions. 9. This Writ Petition is, in these circumstances, allowed on the above terms. Communicate a copy of this judgment to the Family Court, Alappuzha immediately. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/ W.P(Crl.) No.232 of 2010 8 R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.232 of 2010 ********************* Dated this the 5th day of July, 2010 ORDER W.P(Crl.) No.232 of 2010 9 BASANT, J. Today when the case is called, the petitioner is not present. He is represented by her counsel. Counsel submits that the petitioner has not been able to come today because of the disruption in traffic due to the bundh/harthal called by certain political parties. 2. The 4th and 5th respondents are present. Along with them, two minor children - Dino David (date of birth - 09.09.1997) and Deni David (date of birth - 13.11.1995), are present. We have interacted with the children alone initially. Later we interacted with them alone. 3. The learned Government Pleader submits that Crime No.157 of 2010 of Nooranad Police Station in respect of disappearance of the 5th respondent is pending investigation. The 4th respondent submits and has shown to us the transfer certificate issued by St.Albert's School, Shillong, where the two minor children were students for the period 04.03.2010 to 30.06.2010. The 4th respondent undertakes to appear before this Court along with both children on 07.07.2010. 4. The learned counsel for the petitioner submits that an application for appointment of the petitioner as guardian of both W.P(Crl.) No.232 of 2010 10 the minor children has already been filed and the same is pending before the Family Court, Alappuzha as O.P.No.645 of 2010. The counsel further submits that an application for interim custody of the minor children has already been filed. The counsel undertakes to furnish the number and the date of posting of the said I.A by the next date of posting. 5. We permit the 4th respondent to return from Court along with the two minor children today accepting his submission that both the children shall be produced before this Court on 07.07.2010. 6. Call on 07.07.2010. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/