IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(Crl.).No. 34 of 2009(S) -------------------------- PETITIONER(S): --------------- SMITHA SUNNY, D/O.K.V.JOHN,AGED 31 YRS, KOCHUKUDIYIL HOUSE,PALAMATTOM.P.O,KOTHAMANGALAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE, KOTHAMANGALAM. 2. SUNNY MATHAI, PALAPALLIL HOUSE, KARUKADOM.P.O,KOTHAMANGALAM. R1 BY PUBLIC PROSECUTOR SHRI JAI GEORGE R2 BY ADV. SHRI PEEYUS A KOTTAM. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED NIL EXT.P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT DATED 25.1.2009 RESPONDENTS' EXHIBITS: EXT.R2-(a) TRUE COPY OF AGREEMENT DATED 12.6.2008 ENTERED BETWEEN PETITIONER AND 2ND RESPONDENT EXT.R2-(b) TRUE COPY OF LETTER DATED 22.8.2008 WRITTEN BY THE PETITIONER //TRUE COPY// A.K.BASHEER & THOMAS P. JOSEPH, JJ. -------------------------------------- W.P.(Criminal) No.34 of 2009 S -------------------------------------- Dated this the 2nd day of February, 2009. JUDGMENT Basheer, J. Petitioner who is present in Court submits that respondent No.2 (husband of the petitioner) has been illegally detaining their one and a half years old son Master Basil Sunny in his custody. According to the petitioner, she is working as Business Development Officer in HDFC Standard Life Insurance Company. Respondent No.2 had married her in August, 2006. The child was born in June, 2007. She submits that respondent No.2 had been torturing her physically and mentally and that their marital relationship had not been smooth or congenial so far. She further stated before us that respondent No.2 had always been suspicious about her chastity. Anyhow we do not propose to deal with the above aspect any further at this stage since what the petitioner prays for is only to issue a direction to give back the child to her. 2. According to the petitioner, the child was taken away by respondent No.2 on January, 23, 2009 while she was away in her office. Petitioner has produced Ext.P1 which is stated to be a communication/letter written by respondent No.2. In Ext.P1, which runs into several pages, W.P.(Crl) No.34/2009 2 respondent No.2 is seen to have made very wild allegations against the petitioner which she states, would clearly indicate the mind of her husband. Yet again we refrain from making any comment on the contents of the above communication/letter. 3. What is relevant for the purpose of this case is only whether the child can be allowed to remain in the custody of respondent No.2 in the given facts and circumstances. It is contended by respondent No.2 that the child remained in his custody since the petitioner had deserted not only him but the child also. We have also carefully perused the counter affidavit filed by respondent No.2 and the documents produced by him. According to respondent No.2 petitioner has been showing a tendency to commit suicide and therefore, it may not be safe to leave the child in her custody. 4. Having regard to the rival contentions of the parties and having spoken to the parties, we are unable to believe the above version given by respondent No.2. Ext.P1 reveals that it was written by respondent No.2 on January 2, 2009 and thereafter. Petitioner has got a specific case that Ext.P1 was handed over to her neighbour by respondent No.2 at the time when he came to pick up the child, with an instruction to deliver it to her. Her personal belongings were also delivered by her husband at that time. He informed the W.P.(Crl) No.34/2009 3 inmates that he did not intend to continue with the marital relationship any further. 5. The above version given by the petitioner appears more probable. Anyhow the question of custody of the child has to be decided by the appropriate court. For the time being we are satisfied that the child is to be left in the care and custody of the petitioner she being the mother, and particularly since the child is only one and a half years old. We make it clear that the Family Court concerned shall decide the question of custody of the child in appropriate proceedings untrammelled by any of the observations made by us in this judgment, if and when the said issue is raised by either of the parties. A.K.BASHEER, Judge. THOMAS P.JOSEPH, Judge. cks