IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.MC.No. 3886 of 2010(E) -------------------------------------- [CMP.NO.4022/2010 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, HOSDURG, KASARAGOD DISTRICT] .................... PETITIONERS/RESPONDENTS NO.1, 4 & 5: ------------------------------------------------------------- 1. SANDHYA.S, D/O.SREEDHARAN NAMBIAR, "DARSANA", CHORODE EAST, BADAGARA, KOZHIKODE DISTRICT, PIN-673 106. 2. SREEDHARAN NAMBIAR, "DARSANA", CHORODE EAST, BADAGARA, KOZHIKODE DISTRICT, PIN-673 106. 3. SANTHAKUMARI, W/O.SREEDHARAN NAMBIAR, "DARSANA", CHORODE EAST, BADAGARA, KOZHIKODE DISTRICT, PIN-673 106. BY ADVS. SRI.C.VATHSALAN, SMT.THUSHARA.V. RESPONDENTS/PETITIONER & STATE: -------------------------------------------------------- 1. P.RAJMOHAN NAIR, S/O.KUNHAMBU NAIR, "VRINDAVAN", MOOLA KANDAM, P.O.ANANTHASRAMAM, KASARGOD DISTRICT, PIN- 671 531. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R2 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3886 OF 2010 --------------------------------------------- Dated 26th October, 2010 O R D E R First respondent married first petitioner, daughter of petitioners 2 and 3. Their relationship got strained. First respondent filed Annexure-2 petition under Section 25(1) of Guardian and Wards Act before Family Court, Kasargod as O.P.191/2010, to hand over custody of minor children Vishnu Raj and Meenakshi Raj to him from the custody of first petitioner, the mother of the children. He also filed Annexure-2A petition, O.P.123/2010, under Section 9 of Hindu Marriage Act before the same Court for restitution of conjugal rights with the first petitioner. First petitioner in turn filed Annexure-3 O.P.447/2010 before Family Court, Kannur for dissolution of her marriage with first respondent. She also filed Crmc 3886/10 2 M.C.227/2010 claiming maintenance for her and her children before the Family Court. Meanwhile, first respondent filed Annexure-1 complaint before Judicial First Class Magistrate's Court-I, Hosdurg under Section 97 of Code of Criminal Procedure alleging that minor children are wrongfully confined by the petitioners. Learned Magistrate issued Annexure-1A series of summons and directed the petitioners to appear before the learned Magistrate on 7/9/2010. By order dated 22/9/2010, Annexure-1A proceedings was stayed. 2. Though noticed was served on the first respondent he did not appear. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Annexures-2 and 2A petitions filed before Family Court, Kasargod by the first respondent establish that he had already moved Crmc 3886/10 3 the Family Court for custody of the minor children as well as for restitution of conjugal rights with the first petitioner. Annexure-3 petition filed before Family Court, Kannur by the first petitioner establishes that she has already sought dissolution of marriage. In the light of these facts, it cannot be found that minor children are in the illegal custody of the petitioners, as alleged in Annexure-1. In such circumstances, learned Magistrate was not justified in issuing summons to the petitioners in Annexure-1 petition. Petition is allowed. Annexure-1 complaint and the proceedings initiated by Judicial First Class Magistrate-I, Hosdurg in C.M.P.4022/2010 is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.