IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 WP(Crl.).No. 394 of 2008(S) --------------------------- PETITIONER(S): --------------- POOKKATTIL GAFOOR, S/O.MAMMU, POOKKATTIL HOUSE, CHEMANCHERY, KOYILANDY, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------- 1. DAKSHAYANI, W/O.NARAYANAN, MELANCHERRY HOUSE, P.O.MAKKADA, KAKKODI, KOZHIKODE. 2. NARAYANAN, MELANCHERRY HOUSE, P.O.MAKKADA, KAKKODI, KOZHIKODE. 3. SUB INSPECTOR OF POLICE, ELATHOOR POLICE STATION, ELATHOOR, KOZHIKODE DISTRICT. 4. CITY POLICE COMMISSIONER, KOZHIKODE ADV. SRI.P.K.RAMKUMAR FOR R1-2 SRI.M.S.SAJI FOR R1-2 GOVT.PLEADER SRI.NOBLE MATHEW. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 394 of 2008(S) A P P E N D I X PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE ORDER DT. 3.6.2008 IN OP 190/2007 ON THE FILE OF THE FAMILY COURT, KOZHIKODE. EXT.P2 : COPY OF THE CERTIFICATE ISSUED BY BHAVANS SCHOOL, CHALAPPURAM, KOZHIKODE. EXT.P3 : COPY OF THE APPLICATION DATED 21.10.2007 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOZHIKODE. RESPONDENTS' EXHIBITS : EXT.R1 TRUE COPY OF THE COMPLAINT SUBMITTED BY DR.RAJANI PALAKKAL TO THE SUPERINTENDENT OF POLICE FOR PROTECTION DT. 23.7.2005. EXT.R1(2) TRUE COPY OF THE COMPLAINT SUBMITTED BY DR.RAJANI PALAKKAL TO THE CONSULATOR GENERAL, DUBAI DT. 30.5.2005. EXT.R1(3) TRUE COPY OF THE PETITION SUBMITTED BY THE FIRST RESPONDENT HEREIN BEFORE THE CONSULATOR GENERAL DUBAI DT. 16.8.2005. EXT.R1(4) TRUE COPY OF THE DECREE IN O.P.NO.538/2005 DT. 2.11.2007. EXT.R1(5) TRUE COPY OF THE COMPLAINT FILED BEFORE THE JFCM COURT, KOYILANDY BY DR.RAJANI PALAKKAL AS C.C.878/2006 DT. 3.11.2005. EXT.R1(6) DEPOSITION OF THE PETITIONER HEREIN IN O.P.NO.190/2007 OF THE FAMILY COURT, KOZHIKODE DATED 17.3.2008. EXT.R1(7) TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER HEREIN AGAINST DR.RAJANI PALAKKAL BEFORE THE JFCM KOZHIKODE AS CMP 5735/2006 DATED 23.12.2006. KURIAN JOSEPH & K.T.SANKARAN, JJ. ---------------------------------------------- W.P.(Crl) No.394 of 2008 ---------------------------------------------- Dated 12th November, 2008. J U D G M E N T Kurian Joseph, J. This writ petition is filed for production of the body of the minor child Ashika aged 7 years. The child is born to the petitioner in one Smt.Rajani. She is not a party to the writ petition. However, we find that proceedings were there before the Family Court, Kozhikode between the petitioner and Rejani and the Family Court had permitted the petitioner to see the child, as can be seen from Ext.P1 proceedings. The complaint is that respondents 1 and 2, the father and mother of Rajani have kept the child in their illegal custody, and the petitioner is not able to see the child. When the writ petition came up for admission, we directed respondents 1 and 2 to produce the minor child. On 7.11.2008, the child was produced by Rejani. It was submitted before us that the actual name of the child is Jyothika. It was also brought to our notice that there is no marriage between the petitioner and Rejani and there was only an arrangement to live together. However that aspect is not seen dealt with in Ext.P1 order of the Family Court. The petitioner was WP(Crl) No.394/08 2 thus able to see the child produced by Rejani, on 7.11.2008. Today, when the case was taken, it is submitted by Adv.Sri.Krishnan Unni, learned senior counsel appearing for the petitioner that the only intention with which the writ petition was moved was to get an opportunity for the petitioner to see the child and that purpose having been achieved, there is no purpose in keeping the writ petition pending, since the petitioner is convinced that the child is not in the illegal custody of respondents 1 and 2. Learned counsel appearing for the respondents however submits that the writ petition is nothing but misuse of the process of the court, if not an abuse. It is also submitted that in case the petitioner was not able to reap the fruits of Ext.P1 order passed by the Family Court, it was for the petitioner to pursue the matter before the Family Court, or in any other appropriate proceedings, and invocation of the jurisdiction of this court for a writ of habeas corpus was not the appropriate remedy. Though we also find some force in the submission, it is seen that parties to the proceedings before the Family Court are not the parties herein. The allegation in the writ petition was that WP(Crl) No.394/08 3 the child had been illegally detained by the respondents 1 and 2. Now that it has come out that the child is with the grand parents, as instructed by the mother, the petitioner has rightly submitted that no further orders are necessary in the writ petition. In that view of the matter, we are not inclined to grant any costs in this writ petition to the respondents, despite the persuasive submissions made by the learned counsel for the respondents. The writ petition is therefore, dismissed without any order as to costs. KURIAN JOSEPH, JUDGE. K.T.SANKARAN, JUDGE. tgs KURIAN JOSEPH & K.T.SANKARAN, JJ ---------------------------------------------- W.P.(Crl) No.394 of 2008 ---------------------------------------------- J U D G M E N T Dated 12th November, 2008.