IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(Crl.).No. 479 of 2010(S) --------------------------- PETITIONER ------------------- JENSO JOSE, AGED 37, S/O.M.A.JOSE, RESIDING IN THE ADDRESS 7C SKYLINE MELROSE, COCHIN BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVT,HOME DEPARTMENT GOVT.SECRETARIAT,THIRUVANANTHAPURAM 2. THE COMMISSIONER OF POLICE, COCHIN 3. THE STATION HOUSE OFFICER, GRAND BAZAAR POLICE STATION, PUDUCHERRY, UNION TERRITORY OF PONDICHERRY 4. CONSULATE DE FRANCE, CONSUL GENERAL OF FRANCE IN PONDICHERRY,NO.2, RUE DE LA MARINE, PONDICHERRY-1 5. VANINA JENSO @ MARIE THERESA VANINA RAJARATHNAM,D/O.P.F.G. RAJARATHNAM, RESIDING AT NO.2.RVE ROMAN ROLAND, PONDHICHERY-1 SR. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.479 of 2010 ***************************** Dated this the 10th day of December, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition to issue a writ of habeas corpus to search for, trace and produce his minor son - Yann Michael Jose, aged 6 years. The 5th respondent is the wife of the petitioner and the mother of the said child. Police at Cochin and Pondicherry as also the Consul General of France in Pondicherry along with the State of Kerala have been arrayed as other respondents. 2. What is the grievance of the petitioner? Admittedly the petitioner is the father and the 5th respondent is the mother of the minor child, aged 6 years. The spouses were living together happily till April, 2010 in Cochin. Obviously there was some acrimony in the matrimony and the wife along with the child had taken up residence at Pondicherry. The petitioner did not raise a grievance before the Guardian and Wards Court that he has been wrongly deprived of the custody of the child or visitorial rights in respect of the child. He wakes up from his slumber long later on 13.11.2010 allegedly on coming to know W.P(Crl) No.479 of 2010 2 that the child has been taken by the wife to France. At that juncture, he filed a police complaint making it appear that the wife has committed some criminal offence in removing the child out of India. We are informed that the Pondicherry police has instructed the petitioner to avail of other remedies available to the petitioner under law. 3. It is at this juncture that the petitioner has come to this Court with this petition under Article 226 of the Constitution of India. The child has been in the custody of the mother from April, 2010. The petitioner has not so far made a grievance of such custody of the child with the mother. Even now he does not describe the custody of the child with the mother to be illegal or objectionable. His short grievance is that he is at least entitled to visitorial rights in respect of the child. When the child was removed by the mother to a place in France, his visitorial right is offended, it is contended. It is hence prayed that the powers under Article 226 of the Constitution of India may be invoked. 4. We must alertly remind ourselves of the nature, quality and contours of the jurisdiction under Article 226 of the Constitution of India. The Court has power to issue writs in the nature of a habeas corpus to secure production/appearance W.P(Crl) No.479 of 2010 3 before it of persons allegedly under illegal confinement and detention. Illegal detention or confinement are not vices which we can discover or invent in the continued custody of the child with its mother, the 5th respondent. This is not to say that the petitioner is helpless in law. He can move the appropriate court under the Guardian and Wards Act for custody of the child. Even if he does not want custody of the child, he can insist on his visitorial rights in respect of his child. Though he has such remedies under law, it does not certainly justify his grievance that the continued custody of the child with the mother amounts to illegal detention or confinement, which is sine qua non to persuade us to invoke our extraordinary constitutional jurisdiction. 5. We have no hesitation to assert that the petitioner must move the Family court for custody/visitorial rights of the child. He can seek interim orders also from the Family Court. The Family Court, needless to say, will decide the prayer for custody and visitorial rights - interim or final, in accordance with law. Appropriate orders shall be passed. If such orders are not complied with, the option of the petitioner to seek execution and complain to this Court later of any defect/impropriety in W.P(Crl) No.479 of 2010 4 execution shall, of course, remain unfettered. But in any view of the matter, we are not persuaded that the powers of this Court under Article 226 of the Constitution of India can, need or deserve to be issued right now. 6. This Writ Petition is, in these circumstances, dismissed with the above observations. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/