IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 Crl.MC.No. 1789 of 2011() ------------------------- CMP.1635/2011 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER(S): RESPONDENT NO.1: -------------------------------------------------------- BIJU P.P., S/O.P.P.GOPINATHAN, BIJU NIVAS, P.O.PAPPINISSERY, KANNUR TALUK. BY ADVS. SMT.K.K.CHANDRALEKHA, SRI.GOPAKUMAR G. (ALUVA). RESPONDENT(S): PETITIONER AND RESPONDENTS 2 TO 4: ----------------------------------------------------------------------------------------- 1. SMITHA P.P., D/O.NARAYANAN P.P., AGED 31 YEARS, JIJU NIVAS, KANNUR UNIVERSITY P.O., KALLYASSERY, KANNAPURAM, KANNUR. 2. BINDU, W/O.SREEVALSAN, BIJU NIVAS, P.O.PAPPINISSERY, KANNUR TALUK. 3. SREEVALSAN, S/O.KUNHIRAMAN, BIJU NIVAS, P.O.PAPPINISSERY, KANNUR. 4. SANTHOSH A.V., S/O.KUNHIRAMAN, KARADEN HOUSE, P.O.PAPPINISSERY,KANNUR. 5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R5 BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1789/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE NOTICE DTD. 26/05/2011 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, KANNUR. ANNEX.2: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN CMP.NO.1635/2011 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, KANNUR. ANNEX.3: COPY OF THE EXTRACT OF THE ORDER DTD. 2/06/2011 IN CMP.NO.1635/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1,KANNUR. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1789 of 2011 --------------------------------------- Dated this 24th day of June, 2011 ORDER Petitioner is respondent in C.M.P.No.1635 of 2011 of the Court of learned Judicial First Class Magistrate-I, Kannur. First respondent herein, wife of petitioner and mother of a 2½ year old child born in the wedlock file a petition before learned Magistrate under Sec.97 of the Code of Criminal Procedure alleging that the child is in the illegal custody of petitioner. Learned Magistrate issued an order and accordingly the child was brought before Court. As per Annexure-3, order, dated 02.06.2011 learned Magistrate, having regard to the fact that the child is 2½ years old and is breast feeding gave custody of the child to the first respondent leaving it open to the parties to establish their right for custody before the Family Court. That order is under challenge. Learned counsel contends that petitioner is not even given an opportunity to visit the child when the learned Magistrate passed the impugned order. 2. Certainly the concerns of an aggrieved father cannot be ignored. But, presently I am more concerned with the welfare of a 2½ year, old breast feeding child. The child has to be with Crl.M.C.No.1789 of 2011 -: 2 :- its mother for the time being. So far as the right claimed by petitioner is concerned, he has a remedy – to go before the appropriate civil forum and ensure that his rights and interests are also safeguarded. It is open to the petitioner to move such forum as early as possible and seek appropriate reliefs. I do not think that at this stage and particularly when the relationship of the parties is stained, any interim order is to be passed as prayed for. But I make it clear that if any of the parties moved before the appropriate forum for enforcement of his/her civil rights, such Court shall decide the matter untrammelled by Annexure-3, order or, any observation contained in this order. I also direct that if any interim application is preferred by the parties before such forum, the same shall be disposed of as expeditiously as possible. With the above direction and observation this criminal miscellaneous case is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-