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 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(Crl.).No. 435 of 2008(S) --------------------------- PETITIONER: --------------- SHEMI.S., D/O.SHAMSUDEEN, 25 YEARES, SHEMI MANZIL, KINARUVILAYIL ADIKATTUKULANGARA, PALAMEL VILLAGE, MAVELIKARA TALUK, ALLEPPEY. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: --------------- 1. YOUNUS, S/O.ABDUL KASIM RAWTHER, THANNIMOOTTIL HOUSE, MANGARAM, KONNI, KOZHENCHERRY TALUK. 2. SHAHIDA, W/O.ASHRAF, THANNIMOOTTIL HOUSE, MANGARAM, KONNI, KOZHENCHERRY TALUK. 3. THE SUB INSPECTOR OF POLICE, KONNI. 4. THE CIRCLE INSPECTOR OF POLICE, KONNI. 5. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. ADV. SRI.C.S.MANILAL FOR R1 PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE FIRST INFORMATION STATEMENT AND REPORT IN CRIME NO.659/08. RESPONDENTS' EXHIBITS: EXT.R1(a) COPY OF THE MEDICAL CERTIFICATE. EXT.R1(b) COPY OF THE JUDGMENT. EXT.R1(c) COPY OF THE AFFIDAVIT. EXT.R1(d) COPY OF THE COMPLAINT EXT.R1(e) COPY OF THE COMPLAINT TO THE SUB INSPECTOR, KONNI. EXT.R1(f) COPY OF THE REQUEST MADE BY THE R1. EXT.R1(g) COPY OF THE F.I.R. EXT.R1(h) COPY OF VISA PARTICULARS OF KOZHIKKADAN SHIBU @ ALIAS IBRAHIM. EXT.R1(i) COPY OF THE BAIL ORDER OF THE SESSIONS COURT. EXT.R1(j) COPY OF THE CERTIFICATE ISSUED BY JAMA-ATHE. EXT.R1(k) COPY OF THE COMPLAINT TO CHIEF MINISTER. EXT.R1(l) COPY OF THE COMPLAINT TO HOME MINISTER. EXT.R1(m) COPY OF THE COMPLAINT TO DGP EXT.R1(n) COPY OF THE COMPLAINT TO SP. EXT.R1(o) COPY OF THE FIR. /TRUE COPY/ cl A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl)No.435 OF 2008-S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of January, 2009 JUDGMENT Basheer, J: This writ petition is at the instance of the mother of a minor girl named Ashima, aged about five and a half years. Petitioner prays for a writ of habeas corpus to respondents 3 and 4 to produce the minor girl from the custody of respondents 1 and 2 and to release her “ in accordance with her free will”. 2. It appears that there is no love lost between the petitioner and her husband, who is respondent No.1, in this writ petition. Obviously the child is now dragged into this unhappy situation. 3. When this writ petition came up for consideration on December 15, 2008, this Court had requested Smt. Maya, Advocate, to assist the court as a mediator to find out whether the dispute between the parties can be resolved. Respondent No.1 had produced the minor child before the court on that 2 WP(CRL)435/08 day. 4. On December 19, 2008, this Court passed the following order: “Petitioner is present. Her father and mother are also present. First respondent is present. We direct the respondent to hand over the child Ashima to Shemi, mother on 21.12.2008 at 10 A.M in the office of the DYSP, Adoor. We direct the DYSP to facilitate the handover as above. The child shall be with the petitioner, her father and mother and they shall be with the child till 2.1.2009. On 2.1.2009 all the persons referred to above shall be present before this court. We make it clear that petitioner shall not go anywhere without the company of her father, mother and child. She shall also not take the child with the company of any other person. We make it clear that in case the child has any difficulty, petitioner may intimate the matter to the mediator, Smt. T.S. Maya, who will take steps to bring the matter to the court.” 5. Thereafter, the case was taken up for further consideration on January 2, 2009, and on that day, the following order was passed: “Considering the fact that the child is only 5 1/2 years and she is a girl child, we think, it is only appropriate in the interest of the child, that the child continue with her mother for the 3 WP(CRL)435/08 time being. An arrangement shall however be made by the mother to admit the child in a nearby school. The first respondent, father, will be entitled to have the interim custody of the child during week ends. The petitioner will bring the child to the office of Sri.Ahamed Faizal, Advocate, Adoor (as suggested by the counsel for the petitioner) at 10.30 a.m on every Saturday from where the first respondent will collect the child and to be returned in the same place on Sunday at 4 p.m. This arrangement will continue until further orders. The Mediator will continue to interact with the parties, and in case, there is any difficulty to work out this order, it will be open to either of the parties or to the Mediator to bring the same before this Court.” 6. It is the admitted position that the minor child is now in the care and custody of the petitioner/mother. We have interacted with the petitioner and respondent No.1. Petitioner informed us that the child has now been admitted in the U.K.G. Class in All Saints School at Adoor, which is about 6 kms away from her residence. The child is not present in court today since she is attending classes. 7. Respondent No.1 submitted before us that for the sake of welfare of the child, it may not be proper to allow her to remain in the care and custody of the petitioner. At the 4 WP(CRL)435/08 same time, petitioner has got a different story about her husband. We do not propose to refer to the allegations and counter allegations made by the parties against each other at this stage. 8. However, having regard to the peculiar facts and circumstances, we are of the view that the parties have to be relegated to the appropriate forum as regards the custody of the minor child. It will be open to either of them to approach the competent court for custody of the child , if so advised. In the mean while, the interim orders extracted above, shall remain in force till the competent court passes any appropriate interim order. We further make it clear that the court concerned shall not be influenced by the interim orders passed by this Court. It will be open to the said court to take an appropriate decision in the matter uninfluenced and untrammelled by any of the orders passed by this Court in this proceeding. 5 WP(CRL)435/08 Writ petition is disposed of in the above terms. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl