IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(Crl.).No. 99 of 2011(S) --------------------------------------------- PETITIONER(S): ---------------------- SHABNAM PARAMESWARAN M., D/O.PARAMESWARAN M,AGED 26,MOOTHEDATH MANA NEDUNGOTTUR P.O.,PIN-679308 PATTAMBI POLICE STATION LIMIT BY ADV. SRI.K.C.ELDHO RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP.BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVT.SECRETARIAT,TRIVANDRUM-1 2. SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, PIN-679577 3. V.M.PRADEEP, AGED 35, S/O.N.M.DAMODARAN NAMBOODIRI, MOOTHEDATH MANA,VARIKKASSERI, KALADY P.O., MALAPPURAM DISTRICT, PIN-679582 4. V.M.DEEPA, D/O.N.M.DAMODARAN MANBOODIRI AGED 37, MOOTHEDATH MANA, VARIKKASSERI,KALADY P.O., MALAPPURAM DISTRICT, PIN-679582 R1 & R2 BY SR. GOVERNMENT PLEADER SHRI C.M. KAMMAPPU. ADV. SMT.K.V.BHADRA KUMARI FOR R3-4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL).NO.99 OF 2011 S PETITIONER'S EXHIBITS: EXT. P1TRUE COPY OF THE COMPLAINTS SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 21.2.2011. EXT.P2 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R3(A) TRUE COPY OF THE DESCRIPTION ISSUED BY DR.K.S. PRABHAVATHY DATED 21/10/2006. EXT.R3(B) (6 NOS) TRJE COPY OF THE REGISTRATION BILLS ISSUED FROM SEVANA HOSLPITAL, PATTAMBI (6 NOS). EXT.R3(C) TRUE COPY OF THE LAWYER'S NOTICE DATED 17/3/2009 SENT TO THE PETITIONER AND HER PARENTS. EXT.R3(D) TRUE COPY OF THE AGREEMENT ENTERED BETWEEN THE 1ST PETITIONER AND THE DEFACTO COMPLAINANT AND HER PARENTS DATED 31/3/2009. EXT.R3(E) TRUE COPY OF THE PRESCRIPTION DATED 8/8/2010 ISSUED BY DR. K.M.J. NAMBOODIRI. EXT.R3(F) TRUE COPY OF THE CALL DETAILS OF THE PETITIONER AND THE PERSON CALLED VINEESH. EXT.R3(G) TRUE COPY OF THE CALL DETAILS BETWEEN THE PETITIONER AND RIJU. //TRUE COPY// PS TO JUDGE K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 99 OF 2011 S ------------------------------------------ Dated this the 23rd June, 2011 JUDGMENT K.M. Joseph, J. Petitioner has approached this Court seeking the following relief: “Issue a writ of Habeas Corpus or any other appropriate writ, order or direction compelling the 2nd respondent to produce the body of the minor child Arya before this Honourable Court from the illegal detention of respondents 3 and 4 and to hand over the child to the petitioner ensuring the safety of the life of the minor child Arya.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is the wife of the third respondent and mother of a W.P.(CRL).NO.99 OF 2011 S 2 minor child Arya aged three years. The third respondent always harasses and assaults the petitioner. On 18.2.2011, while the minor child was sleeping with the petitioner, the child was taken away by the third respondent with the assistance of the fourth respondent and they went away with the minor child in a hired car and the whereabouts of the minor child is unknown ever since 18.2.2011. Petitioner submitted Ext.P1 complaint acknowledged by Ext.P2 receipt and is before us. 3. A Counter Affidavit was filed by respondents 3 and 4 producing Exts.R3(A) to R3(G). A Reply Affidavit is also filed. 4. We had actually made an attempt to bring about a reconciliation between the parties. Though the petitioner is agreeable, the third respondent is not inclined. He cites certain mental problems and attitude of the petitioner as the reason. Some documents are also produced in support of the respondents' case. We heard the learned counsel appearing for the parties. W.P.(CRL).NO.99 OF 2011 S 3 5. Learned counsel for the petitioner would point out that this is a case where having regard to the fact that the petitioner is the mother of a three year old child and who is a girl child, the custody should be given to the petitioner. He would point out that in fact when efforts were made by the Court to bring about a reconciliation between the parties, it was the third respondent who resisted such efforts. He would further submit that the facts leading upto the filing of the Writ Petition may not be overlooked. He refers to the incidents as allegedly having taken place on 18.2.2011. According to him, while the petitioner and third respondent were in their matrimonial home, respondents 3 and 4 took away the child in a hired car to Ernakulam where the fourth respondent who is the sister of the third respondent resides. Therefore, the forceful deprivation of the minor child is cited as the foundation for filing of the Writ Petition which, he would emphasise is, therefore, clearly maintainable. When confronted W.P.(CRL).NO.99 OF 2011 S 4 with the dictum laid down by the Apex Court in Sumedha Nagpal v. State of Delhi & Ors. (JT 2000 (7) SC 450), the learned counsel submits that the facts in the case would render it distinguishable. According to him, in that case, though the Apex Court relegated the parties to the Family Court, there was a gap of about seven months between the deprivation of the custody of the child from the mother and the petition. In this case, immediately as soon as the deprivation took place, namely on 18.2.2011, the petitioner filed complaint, he submits. He has also relied on case law to contend that this Court has supported the order of the Family Court wherein custody of ten year old girl was given to the mother. 6. Per contra, learned counsel appearing for the party respondents would submit that the Writ Petition may not be allowed. She would rely on the Exhibits produced. She would submit that in the facts of this case, this Court should relegate the parties to the proper Forum where evidence can be taken. W.P.(CRL).NO.99 OF 2011 S 5 According to her, the girl child is happy in the company of the father and there are also his parents in the house. There is no illegal detention. According to the party respondents, the narration of the incidents as it took place allegedly on 18.2.2011 by the petitioner is incorrect and on 18.2.2011, the petitioner left the matrimonial home and left the child behind. 7. We have seen the principles enunciated by the Apex Court in Sumedha Nagpal v. State of Delhi & Ors. (JT 2000 (7) SC 450) and we are of the view that in the facts of this case, it may not be appropriate for us to decide the question of custody as such in this regard. No doubt, there is a Report given by a Doctor who was consulted by the parties in the matter. We are of the view that the parties should be relegated to the competent court and we should decline jurisdiction in so far as the prayer is to grant custody of the minor child to the petitioner and we should leave it free to the petitioner to approach the competent court concerned. But, at the W.P.(CRL).NO.99 OF 2011 S 6 same time, we feel that some arrangements should be made in regard to the custody of the child, particularly having regard to the interim orders we have been passing in this case whereunder we have given custody of the child to both parties from time to time. 8. Accordingly, while declining jurisdiction and relegating the petitioner to approach the competent court in the matter, we direct that the third respondent shall hand over custody of the minor child at 5 PM on every friday by taking the child and dropping the child in the house of the petitioner and the petitioner can keep custody of the child till 6 PM on every Sunday and the third respondent can go and take the child and he can keep custody of the child till the next friday at 5 PM and this process will continue. However, we make it clear that on the last week of every month, the third respondent can keep custody of the minor child and need not part with custody of the child on friday as ordered in respect of the earlier weeks in the month. We make it clear that if the petitioner moves the Family Court in the matter, the Family W.P.(CRL).NO.99 OF 2011 S 7 Court will proceed to decide the matter untrammeled by anything contained in this Judgment. We also make it clear that it will be open to the Family Court to vary the arrangement which we have ordered regarding the custody of the child. The Writ Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// W.P.(CRL).NO.99 OF 2011 S 8