IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(Crl.).No. 510 of 2010(S) --------------------------- PETITIONER: --------------- MIDHILAJ.M., SON OF MURTALA KOYA THANGAL AGED 27 YEARS, `RUBY NIVAS', NALAAM MILE, ERUMATHALA P.O., ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENTS: --------------- 1. ANEESA, DAUGHTER OF ASHRAF SYED, 24 YEARS, CHERKKARA PADUVINKAL, MUDIKODE, PATTIKKAD P.O., THRISSUR, PIN-680 652. 2. ASHRAF SYED, AGED ABOUT 54 YEARS, CHERKKARA PADUVINKAL, MUDIKODE, PATTKIKKAD P.O., THRISSUR, PIN-680 652. 3. HURAIS, SON OF ASHRAF SYED, AGED ABOUT 25 YEARS, CHERKKARA PADUVINKAL, MUDIKODE, PATTIKKAD P.O., THRISSUR, PIN-680 652. 4. UWAIS, SON OF ASHRAF SYED, AGED ABOUT 27 YEARS, CHERKKARA PADUVINKAL, MUDIKODE, PATTIKKAD P.O., THRISSUR, PIN-680 652. 5. SUPERINTENDENT OF POLICE, THRISSUR, PIN-680 001. 6. CIRCLE INPSECTOR OF POLICE, MANNUTHY, THRISSUR, PIN-680 651. ADV. SRI.JIJO PAUL FOR R1 TO R4 GOVERNMENT PLEADER, SHRI C M KAMAPPU FOR R5 & 6 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl) No. 510 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January 2011 JUDGMENT Joseph J., This is a Writ petition seeking the following prayers: “(i) Issue a writ in the nature of Habeas Corpus or other appropriate writ, direction or order commanding respondents 1 to 6 to produce the infant Sayed Misbah M Shatiri, aged 7 months and issue appropriate direction or orders for ensuring that the said infant is not removed to any location outside Kerala or outside India where the petitioner may not be able to exercise his right of guardianship. (ii) Issue directions or orders as this Court may deem fit and proper for custody of the said infant child aged 7 months affording to the petitioner appropriate visitation right.” W.P.(Crl) No. 510 of 2010 :2: 2. Briefly put the case of the petitioner is as follows. The petitioner married the first respondent as per Islamic rights. On account of her extra- marital relationship with Shihab, the marital tie suffered severe strain and stress. The petitioner and the first respondent are living seperate, the wife with her parents. The relationship between the two families, i.e., the petitioner's family and the family of the respondent became very strained and stressed that reconciliation was very difficult. There is reference to the case that the respondents 1 to 4 are making arrangements to take the infant child along with the first respondent to U.A.E., where the petitioner is not able to exercise his right of guardianship This is not permissible in law. 3. We had interacted with the parties. We take note of the order dated 12.1.2011. 4. An affidavit is filed by the first respondent, therein inter- alia it is stated that: “I and my minor son Sayyid Misbah Midhilaj Shattiri, if permitted by this Hon'ble Court, shall W.P.(Crl) No. 510 of 2010 :3: leave for Dubai, UAE, on or after 1st day of February 2011. I undertake that I shall return to India, along with the child on or before the 15th day of April 2011 and shall also abide by any condition as may be imposed by this Hon'ble Court.” 5. We heard the learned counsel for the petitioner and the learned counsel for the respondents. The learned counsel for the petitioner opposed the request. The child is aged seven months. We would think, in the circumstances of the case that it is more appropriate and that the petitioner is relegated to pursue the remedies open to him before any other forum in regard to the custody of the child and also any other right which the petitioner wish to seek with regard to the marital relationship. 6. In the circumstances of the case, we take note of the undertaking given by the first respondent and on the strength of the undertaking given by her, we permit her to take the child to Dubai, UAE on or before 1st February 2011 on condition that the she will return with the child on or before 20.3.2011. We also record the submission of the learned counsel for respondents that immediately W.P.(Crl) No. 510 of 2010 :4: upon the first respondent reaching Dubai, she will communicate her address, including her contact telephone number in Dubai to the petitioner. 7. The Writ Petition is disposed of as above. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/