IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 WP(Crl.).No. 321 of 2011(S) ---------------------------------------- PETITIONER(S): ------------------------ S.MUMMOORTHY, NO.I, RAILWAY QUARTERS, EDAVA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM-695001. 3. THE CIRCLE INSPECTOR OF POLICE, VARKALA, THIRUVANANTHAPURAM-695141. 4. THE SUB INSPECTOR OF POLICE, VARKALA, THIRUVANANTHAPURAM-695141. 5. RUKIYA BEEVI, KIZHAKKEVILAKOM HOUSE, KAPPIL, EDAVA-695014. 6. SHIHABUDHEEN, KIZHAKKEVILAKOM HOUSE, KAPPIL, EDAVA-695014. R1 TO R4 BY GOVT. PLEADER SRI.C.M.KAMAPPU R5 & R6 BY ADV. SRI.E.NARAYANAN THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(CRL) 321/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER DT.D 27.06.2011 BEFORE THE FOURTH RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss Wpcrl.321/2011 1 THOTTATHIL B. RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. * * * * * * * * * * * * * * * * * * * * * * * * W.P.(Crl).No.321 of 2011 --------------------------- Dated this the 6th day of July 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. The petitioner Mummoorthy and his brother S.Durga Swamy are present before us. The 5th respondent, maternal grandmother of the petitioner's children brought the kids. In open court, we directed her to hand over the children to the petitioner. We saw that the children very happy and joyful to go over to the father/the petitioner. We also find from the conduct of the petitioner in court that he is deeply interested in the affairs of the children. We spoke to the grandmother/the 5th respondent and also to the petitioner and his brother. We are satisfied that the petitioner can have custody of the two children, both males. That will be in the best interest of those children. The petitioner is also the natural guardian of the children who are born to the couple who married in terms of the provisions of Wpcrl.321/2011 2 the Special Marriage Act. 2. We accordingly permit the petitioner to keep the children with him and make them available before court by 2 p.m. The petitioner and his brother will be present and the petitioner will file an affidavit with necessary undertakings. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (K.SURENDRA MOHAN, JUDGE) jsr 2.00 p.m 3. Read the earlier order passed by this Court in the morning. 4. The children in relation to whose custody this writ petition is filed are now happy with their father, the petitioner. The maternal grand mother is present. 5. At the outset, we clarify that we have not found any question of illegal custody of the children by their maternal grandmother. She took care of those kids who have Wpcrl.321/2011 3 unfortunately lost their mother in May 2011. The feelings of the maternal grandmother having lost her daughter and having to let the grand children go with their father cannot be ignored. At the same time the primacy of the eligibility of the father who is the natural guardian and who has eligibility and is capable of taking care of the interest of the minors cannot be ignored. There is nothing that indicates that he is ineligible to have the custody of the two male children. We therefore order that the children M.R. Mithun and M.R. Nithin will be in the custody of their father, the petitioner S. Mummoorthy. The petitioner will take due care of the minors and bring them up as is expected from a parent and in terms of the undertaking given by him in his affidavit filed today. 6. We have already clarified that we do not take cognizance of any of the allegations made by the petitioner against respondents 5 and 6 in the writ petition. We record the request of the fifth respondent that the petitioner will keep her informed of the address where the children would be available from time to time and any change of address of the petitioner, having regard to the fact that the petitioner works with the Southern Railways. We also record the undertaking Wpcrl.321/2011 4 of the petitioner that he will make available the children for such visitorial purposes of the maternal grandmother in terms of the undertaking in the affidavit of the petitioner. We also further clarify that if either the fifth respondent or the sixth respondent so desires he/she may visit the children in their paternal home. 7. Writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN Judge K. SURENDRA MOHAN Judge jj //True Copy// PA to Judge