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 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(Crl.).No. 361 of 2009(S) --------------------------- PETITIONER : --------------- AYYAPPAN, AGED 48 YEARS, S/O.KARAPPAN, KADAN HOUSE, CHENGATHOOR AMSOM, KOTTAPPURAM, THIRUR TALUK. BY ADV. SRI.SIRAJ KAROLY RESPONDENTS : --------------- 1. THE SUB INSPECTOR OF POLICE, KOTTAKKAL, MALAPPURAM DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, THIROOR, MALAPPURAM DISTRICT. 3. THE DISTRICT SUPERINTENDENT OF POLICE, MALAPPURAM DISTRICT, MALAPPURAM. 4. AMBIKA, AGED 42 YEARS, D/O.KORAN, VALIYAPARAMBU HOUSE, THANOOR. 5. ABHIRAM, S/O.AYYAPPAN, AGED 7 YEARS, KADAN HOUSE, CHENGATHOOR AMSOM, KOTTAPPURAM. 6. SURESH BABU, AGED 25 YEARS, S/O.KOPPA, MELEPPURAM HOUSE, MANNAZHI, CHENGATHOOR P.O., MALAPPURAM DISTRICT. GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN FOR R1 to R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.361 of 2009 ------------------------------------- Dated this the 4th day of November, 2009 JUDGMENT BASANT, J. This judgment must be read in continuation of the earlier orders passed by us in this matter resting with the order dated 26.10.09. 2. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his wife - the 4th respondent, Ambika, aged 42 years and his minor child Abhiram, aged 7 years, ie. the 5th respondent. The petitioner apprehended that respondent Nos.4 and 5, who were found missing from 07.07.09, were being detained and confined illegally by the 6th respondent, a young man aged 27 years. This petition was filed on 07.09.09. Subsequent directions were issued from time to time. Consequently after peremptory directions were issued. The police produced the 5th and 6th respondents before this Court on 26.10.09. 3. The 4th respondent/wife asserted that she is aged 42 years and that she is not under illegal custody, detention or confinement of anyone. According to her, life at the house of the W.P(Crl.) No.361 of 2009 2 petitioner was intolerable and she was, in these circumstances, obliged to take shelter with the 6th respondent, a neighbour. She went to the extent of stating before us that the 5th respondent child, though born during the currency of the matrimony between her and the petitioner, was really not the child of the petitioner and was born to her in her relationship with the 6th respondent at a time when the petitioner was not available in India. The 6th respondent, who had also appeared before this Court, stated that he is willing to look after the 4th respondent and the 5th respondent. He admitted, or rather claimed, that the 5th respondent is the child born to him in the 4th respondent. 4. The petitioner asserted that the child is his and was conceived in the relationship between him and the 4th respondent. Today as directed by this Court, the petitioner is present before Court. The 4th respondent has come to Court along with the 5th respondent. The learned counsel for the petitioner submits that the petitioner has, in view of the subsequent developments before this Court on 26.10.09, filed an application for divorce as O.P.No.906 of 2009 and an application for custody as O.P(G&W)No.905/09 before the Family Court, Malappuram. On 26.10.09,the petitioner was directed to produce W.P(Crl.) No.361 of 2009 3 before this Court today materials which would show prima facie that the child was conceived at a time when he was available in India. 5. The petitioner has today produced his passport which suggests prima facie that he had come to India on 27.11.01 and had left India for his place of employment abroad on 09.02.02. The 5th respondent, it is asserted, was born on 18.09.02. 6. We must remind ourselves that we are exercising the jurisdiction under Article 226 of the Constitution of India. We are satisfied that the 4th respondent is not under illegal detention or confinement by anyone. We are further satisfied that the 5th respondent, a child, aged 7 years, is now in the custody of his mother, the 4th respondent, and he is also not under illegal custody, detention or confinement by anyone. We perceive the disputes between the parties about the custody of the 5th respondent as one purely of a dispute between the parents about the custody of the child. We are not adverting in detail to the the contentions raised about the custody or the paternity of the 5th respondent. We are satisfied that the interests of justice shall be eminently served by directing the 4th respondent to appear before the Family Court on 09.12.2009, the date to which O.P W.P(Crl.) No.361 of 2009 4 (G&W) No.905 of 2009 is posted before the Family Court. The counsel for the petitioner unfortunately is not able to state before the Court whether any interim application for custody of the child has been filed before the Family Court or not. Suffice it to say that if such an application has already been filed or any such application is filed by 09.12.09, it shall be for the Family Court to pass appropriate directions regarding the custody of the child. We need only direct the 4th respondent to produce the child before the Family Court on 09.12.09 in O.P.No.906 of 2009 whereupon it shall be for the parties to seek appropriate direction from the Family Curt regarding the custody of the 5th respondent. We are satisfied that no directions need be issued in this petition for issue of a writ of habeas corpus, regarding the custody of the 5th respondent. 7. This Writ Petition is, in these circumstances, dismissed, but with the specific direction to the 4th respondent to appear before the Family Court, Malappuram on 09.12.09 in O.P.No.906 of 2009 with the 5th respondent and with the observation that the Family Court shall pass appropriate orders regarding the custody of the 5th respondent thereafter. As the 4th and 5th respondents are not represented by a counsel and they W.P(Crl.) No.361 of 2009 5 are present before the Court personally, the direction has been explained to the 4th respondent. The learned Government Pleader is directed to specifically convey the direction in detail to respondent Nos.4 and 5. We further direct that the police shall ensure that this direction to produce the child before the Family Court is complied with by the 4th respondent. 8. The Family Court shall report to this Court whether the 4th respondent has complied with the direction. 9. It is brought to our notice that the Superintendent of Police has not filed the statement or appeared before this Court as already directed vide order dated 20.10.09. The learned Government Pleader prays that some time may be granted to the 3rd respondent to file the statement and appear before the Court. We direct that the 3rd respondent need not appear in person now. But the statement as directed must be filed by the next date of posting. 10. Call on 11.12.2009. The statement of the 3rd respondent shall be filed on that date. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-