IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 WP(Crl.).No. 103 of 2010(S) --------------------------- PETITIONER: --------------- SATHEESAN.S., S/O.SASI, AGED 40 YEARS, PUTHUVAL PUTHENVEEDU, SIVAGIRI, VARKALA P.O., THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.S.MUJEEB RAHIMAN RESPONDENTS: --------------- 1. THE SUB INSPECTOR OF POLICE, VARKALA POLICE STATION, VARKALA P.O., THIRUVANANTHAPURAM DISTRICT. 2. SUDESAN, KUNNUMPURATH HOUSE, CHERUKUNNAM, SIVAGIRI, VARKALA, THIRUVANANTHAPURAM DISTRICT. 3. SUMESH, S/O.SUDEVAN, KUNNUMPURATH HOUSE, CHERUKUNNAM, SIVAGIRI, VARKALA, THIRUVANANTHAPURAM DISTRICT. 4. SURESH, S/O.SUDESAN, KUNNUMPURATH HOUSE, CHERUKUNNAM, SIVAGIRI, VARKALA, THIRUVANANTHAPURAM DISTRICT. 5. SOBHANA, KUNNUMPURATH HOUSE, CHRUKUNNAM, SIVAGIRI, VARKALA, THIRUVANANTHAPURAM DISTRICT. GOVERNMENT PLEADER SRI.P.N.SUKUMARAN THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** W.P(Crl) No.103 of 2010 ***************************** Dated this the 26th day of March, 2010 JUDGMENT BASANT, J. The dispute essentially involved in this Writ Petition is one between the estranged father and mother of 2 minor children aged 5 and 8 years. Their relationship got strained and they admittedly started separate residence only w.e.f 22.02.2010. The petitioner/father has now come with a grievance that the children were illegally taken away by the relatives of his wife on 03.03.2010 from the school which the children were attending. This petition was filed on 22.03.2010. The learned Government Pleader was given notice and was directed to take instructions. The learned Government Pleader submits that the children are now with the mother. The dispute thus is essentially one between the father and mother about the custody of the minor children. 2. The short question is whether the extraordinary constitutional jurisdiction under Article 226 of the Constitution of India to issue a writ of habeas corpus can, need or deserves to be invoked. As stated earlier, the spouses had fallen apart on 22.02.2010. Till that date, it cannot be stated that the children W.P(Crl) No.103 of 2010 2 were in the exclusive custody of either of them. The allegation is about the snatching away of the children from the custody of the father on 03.03.2010 on the assertion that from 22.02.2010 to 03.03.2010 (about 10 days) the children were in the exclusive custody of the father and that the mother and her relatives had taken law into their own hands to get custody of the children. 3. We are of the opinion that this is not a fit case where the extraordinary constitutional jurisdiction to issue a writ of habeas corpus can or need be invoked. The petitioner, if he is aggrieved, must certainly approach the Family Court with the dispute about the custody of the children. We find no reason to assume that the Family Court shall not consider the matter on merits and issue appropriate interim directions if the same be necessary. 4. With the above observations, this Writ Petition is dismissed. Needless to say, if such an application is filed, the Family Court must pass appropriate orders in accordance with law and expeditiously. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/