IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(Crl.).No. 13 of 2007(S) --------------------------------- PETITIONER: ------------------ JOOLY. V.V., AGED 32, D/O.VARKEY, VETTIKKATTIL HOUSE, MANEED P.O., PIRAVAM VIA., ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SRI.E.M.MURUGAN RESPONDENT(S): ------------------------ 1. SHIR REJI KURIAKOSE, S/O.KURIAKOSE, CHELAMATTATHIL HOUSE, PERUVA P.O., KOTTAYAM DISTRICT, RESIDING AT SERANGOON AVE-4, BLOCK-227,# 04-24, SINGAPORE-550 220. 2. SHRI ROJAN KURIAKOSE, S/O.KURIAKOSE, CHELAMATTATHIL HOUSE, PERUVA P.O., KOTTAYAM DISTRICT. 3. SMT.THANKAMMA, W/O.KURIAKOSE, CHELAMATTATHIL HOSUE, PERUVA P.O., KOTTAYAM DISTRICT. 4. THE SUPERINTENDENT OF POLICE, KOTTAYAM DISTRICT, KOTTAYAM. 5. THE DY.SUPERINTENDENT OF POLICE, PALA. 6. THE SUB INSPECTOR OF POLICE, MEVALLOOR POLICE STATION, MEVALLOOR. ADDL.R7 & R8 IMPLEADED: ADDL.R7. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI. ADDL.R8. THE PROTECTOR OF IMMIGRANTS, INDIAN HIGH COMMISSIONERATE, SINGAPORE. IMPLEADED AS PER ORDER DATED 21/3/2007 IN IA.NO.3729/07. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1,2,3 SRI.JOHN VARGHESE, ASGI. SRI.V.K.MOHAMMED YOUSUF FOR ADDL.R.. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R7 SRI.T.RAMPRASAD UNNI FOR R1-3 SMT.SARITHA DAVID CHUNKATH FOR R1-3 PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P. Bhavadasan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (Crl) No. 13 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2009. Judgment Basheer, J: Petitioner is the mother of two minor children named Don Reji and Susan Reji aged about 7 years and 4 years respectively. These children were born to the petitioner in her wedlock with respondent No.1. It is evident from the pleadings of the parties that there is no love lost between the petitioner and her husband now. 2. This writ petition was filed in January 2007 alleging that the two minor children were removed from the custody of the petitioner by respondents 2 and 3 who are the brother-in-law and mother-in-law respectively of the petitioner on October 3, 2006, while they were living under her care and custody in one of her Aunty's house. The two prayers in the writ petition are extracted hereunder: “(i) Issue a writ of Habeas Corpus, directing the respondents 2 and 3 herein to produce the body of detenus (1) minor Don Reji, aged 6 and (2) minor Susan Reji, aged 3, who have been illegally detained by them in unknown destination before this Honourable court and release the said minor detenus from such illegal detention and give them to the care and custody of the petitioner, who is the mother and natural guardian. (ii) Issue a writ, order or direction in the nature of Mandamus or other appropriate writ, WP(Crl.)13/2007 2 directing the respondent No.4 herein to forthwith conduct an investigation upon Ext.P1 complaint and also to search out for the minor detenus and produce them before this Honourable court so as to release them from illegal custody.” 3. In the counter affidavit filed by respondents 1 to 3 they had denied the entire allegations in the writ petition. It was further stated that the grandmother of the children (respondent No.3) had in fact taken the children to Singapore as instructed by petitioner's husband on November 16, 2006 to enable the children to continue their studies there . It is not in dispute that the children were in fact studying in Singapore earlier, where the petitioner was also employed as a Nurse for about 32 months starting from September 23, 2002 till April 30, 2005. Petitioner came back to India with the children and her husband later. It was thereafter that the children were allegedly taken back to Singapore by respondent No.3. 4. In the course of these proceedings several interim orders were issued by this Court directing respondent No.1 to appear before this Court along with the children. But respondent No.1 has not complied with the above direction so far, obviously for one reason or the other. We do not propose to go into that question since on December 19, 2007 when the writ petition came up for further consideration before this Court it was recorded by this Court that counsel for the petitioner had made a request that at this stage of the proceedings he is only pressing for a relief to issue a direction to respondent No.2, her brother-in-law to return her passport. The fact remains that the passport has remained as elusive as ever. Respondents 2 and 3 assert that it is not with them. In the counter affidavit respondent WP(Crl.)13/2007 3 No.1 has also taken the same stand. In view of the above factual position we are of the view that no positive direction can be issued to any one of the three respondents to return the passport, on the face of their assertion that it is not with any one of them. 5. In this context we may also refer to the order reportedly issued by a civil court in Singapore on June 12, 2007, a copy of which is on record as Ext.R2(g). By the said order the husband of the petitioner has been given sole custody, care and control of the two minor children. However the petitioner herein, who is the defendant before the court in Singapore, has been given a “reasonable access to the two children, which is to be exercised in Singapore or overseas as may be agreed by both parties”. 6. The factual position being as narrated by us above, we do not think that petitioner can be granted any relief at this juncture. We make it clear that we have not decided any of the issues on their merit. We leave open all the contentions that may be available to the petitioner and the contesting respondents to be raised before a competent forum, if they choose to do so. Petitioner will be at liberty to apply for a passport , if she so desires. The Writ Petition is closed in the above terms. A.K. BASHEER Judge an. P. Bhavadasan Judge WP(Crl.)13/2007 4