IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(Crl.).No. 490 of 2009(S) --------------------------- PETITIONER(S): --------------- NISHAMOL K, AGED 24 YEARS, D/O.MOIDUNNI K, KIZHAKKETHIL HOUSE, PERUMPAL, NANNAMMUKU, MALAPURAM DIST. BY ADV. SRI.SUDHEESH.A. SMT.C.V.BINDU RESPONDENT(S): --------------- 1. SUB INSPECTOR OF POLICE, CHANGARAMULAM POLICE STATION, CHANGARAMULAM, MALAPPURAM DIST. 2. DEPUTY SUPERINTENDENT OF POLICE, TIRUR, MALAPPURAM DIST. 3. SUPERINTENDENT OF POLICE, MALAPPURAM. 4. SHAMEER, AGED 29, S/O. MOHAMMED, KUTTIYIL HOUSE, NANNAMUKU, MALAPPURAM DIST. 5. MOHAMMED AGED ABOUT 60 YEARS, KUTTIYIL HOUSE NANNAMUKU, MALAPURAM DIST. 6. MARIYAKUTTY, AGED ABOUT 45 YEARS, W/O. MOHAMMED, KUTTIYIL HOUSE NANNAMUKU, MALAPURAM DIST. 7. NASSERA, W/O BASHEER, VALIYAPEEDIYAKKAL HOUSE, NEAR IDEAL SCHOOL, AYNKALAM P.O., THAVANOOR KADAKASSERY, MALAPPURAM DIST, PIN 679 594, 8. MOOSA K.M., KUTTIYIL HOUSE, OTHALOOR WEST, MALAPPURAM DIST, PIN 679 591. R1 TO 3 BY GOVERNMENT PLEADER SRI P.N.SUKUMARAN ADV. SMT.R.SUDHA FOR R5-8 SRI.T.BIJU MANOHAR (B & J ASSOCIATES) FOR R5-8 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ W.P.(Crl.) 490 OF 2009 ------------------------------------------------------ Dated: JANUARY 19, 2010 JUDGMENT Joseph, J. The petitioner is the mother of one Mohammed Dilshad, a boy aged 4½ years old born to her from her marriage with the 4th respondent. She is divorced by the 4th respondent. Respondents 5 and 6 are the father-in-law and mother-in-law of the petitioner. It is the petitioner's case that they took the petitioner's child to their house during Pooja holidays. It is the further case of the petitioner that on the re-opening of the school, the child was not returned. When enquiries were made by the petitioner at the house of the 5th respondent they informed the petitioner that the 7th respondent who is the sister of the 4th respondent took the child to her house at Thavanoor and they requested the petitioner to allow the child to stay back there for one more week. It is her further case that even after one week, the child was not returned. Thereafter she was informed that the child was with the 8th respondent who is the brother of the 5th respondent. It is stated that different answers are given regarding the whereabouts of the child. It is further stated that a complaint was launched before the 2nd respondent and investigation is going on. It is also stated that the petitioner apprehends that the 4th respondent is WP(Crl.)490/09 2 behind all this. Accordingly the petitioner approached this court seeking a writ of habeas corpus commanding respondents 1 to 3 to release the child from the illegal detention of respondents 4, 5, 6, 7 and 8 and to produce the detenu. 2. A detailed counter affidavit has been filed on behalf of respondents 4 to 8. The dissolution of the marriage is admitted. It is further stated that Ext.R5(a) is an agreement executed between the parties on 19.6.2008. According to the respondents the said agreement states that upto 3½ years the child will be with the mother and thereafter within one month of the re-marriage of the mother, appropriate decision has to be taken by the parties regarding the future life of the child without adversely affecting the child's education. The respondent's case is that on 24.6.2009 the petitioner got re- married. The petitioner was with her husband thereafter at Chavakkad. Therefore the grandparents brought the child to their house as the child had to be admitted in school. It is their case that the taking of the child to their house was with the full knowledge and consent of the petitioner and her brother and on 1.6.2009 the grandfather of the child admitted him in the school at Kokkur and the child was going to the school and staying with the grandparents. Ext.R5(b) is the certificate issued by the Principal of the school and Ext.R5(c) is the certificate issued by the Nannamukku Juma Masjid WP(Crl.)490/09 3 Committee certifying that the child is in the custody of his father. The 4th respondent who is the father of the child is working in UAE. It is stated that when the second marriage of the petitioner was fixed they have informed the petitioner and her brother that after the petitioner's remarriage, the father would take the child to Gulf and they had agreed with that suggestion and as such they applied for passport. Ext.R5(d) is the photocopy of the passport issued in favour of the child dated 12.8.2009. On receipt of the passport the child's father, it is stated, had applied for visa. On 30.9.2009 the child was relieved from the school as is sought to be proved by Ext.R5(f) certificate. Thereafter on 2.10.2009 the 4th respondent took the child to UAE and admitted him in the Indian School at Ras Al Khaimah and the child was studying there in LKG. Exts.R5(g) and R5(h) are the flight tickets. Ext.R5(i) is the certificate issued by the Indian School showing the fees structure of the child. 3. A reply affidavit is filed by the petitioner. It is stated inter alia that the petitioner got remarried on 2.7.2009 and her husband's house is at Edapully near Guruvayoor and even after the marriage, it is stated that the petitioner is living at her parental house with her son as her husband is working abroad. The petitioner has denied the allegations in the counter essentially. 4. We heard the learned counsel for the petitioner and the WP(Crl.)490/09 4 learned counsel for respondents 4 to 8. 5. The learned counsel for the petitioner would submit that this is a case where the child was only 4½ years old. It is pointed out that the 4th respondent has also remarried. He would submit that the welfare of the child requires that his custody be given to the petitioner. He would submit that the child was taken away from the custody of the petitioner which is the proper custody. He would further submit that the petitioner has filed a petition under the Guardian and Wards Act in the Family Court at Malappuram and that is pending consideration. It is posted to 24.1.2010. He would submit that the child may be directed to be produced before the Family Court. 6. Learned counsel for the respondents would submit, on the other hand, that the child was, in fact, taken away with the consent of the petitioner and the child is now admitted in a school at Ras Al Khaimah and is studying there. We would think on the facts of this case that it may not be proper for us to permit the petitioner to pursue with this writ of seeking habeas corpus for production of the child in this court. We feel that it will be more appropriate that the matter be gone into and a decision taken by the Family Court which is already in seisin of the matter. We make it clear that we have not gone into the merits of the contentions of the parties. It will be open to the Family Court to decide the issue relating to the custody untrammelled by WP(Crl.)490/09 5 anything stated in this judgment. We further order that if the petitioner seeks the production of the child during the course of the proceedings before the Family Court in aid of her contention that the custody should be given to the petitioner, it is for the Family Court to pass appropriate orders in this regard, necessarily after hearing the respondent in the petition also. In view of the facts of the case, we further direct the Family Court to dispose of the case at the earliest. With these observations the writ petition is disposed of. K.M.JOSEPH, JUDGE P.Q. BARKATH ALI, JUDGE mt/-