IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(Crl.).No. 425 of 2009(S) --------------------------- PETITIONER: --------------- HARIKUMAR D., AGED 38 YEARS,S/O.DEVADATHAN PILLAI, MANNASSERIL KIZHAKKATHIL,NEENDAKARA, KOLLAM. BY ADV. SRI. K.SHAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 3. THE CIRCLE INSPECTOR OF POLICE, CHAVARA. 4. SUB INSPECTOR, CHAVARA POLICE STATION. 5. JAYALEKSHMI G., AGED 37 YEARS,D/O.REMA DEVI, JAYALEKSHMI NIVAS,NEENDAKARA, P.O. NEENDAKARA, KOLLAM. 6. UMADEVI, CHERUVILAKIZHAKKATHIL, NEENDAKARA, P.O. NEENDAKARA, KOLLAM. 7. SASIDHARAN PILLAI, CHERUVILAKIZHAKKATHIL, NEENDAKARA P.O.,KOLLAM. BY GOVT.PLEADER SMT.SMITHA SUKUMAR FOR R1 TO R4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.425 OF 2009 ----------------------------------------------------- DATED THIS THE 22nd DAY OF OCTOBER, 2009 J U D G M E N T Basant, J. The petitioner has filed this application for issue of a writ of habeas corpus to search for, trace and produce his minor daughter Aparna Harikumar, born on 20.10.1998 in his legal matrimony with the 5th respondent. The marriage subsists even now. The relationship between the spouses is strained. The child, it is claimed, was admitted to the school by the petitioner. The child has been taken away from the school by the 5th respondent, the mother of the child. The mother of the child is employed abroad. The petitioner has already moved the Family Court with O.P.(G&W)No.707/09 for custody of the child. At this juncture, the petitioner has come before this Court with the grievance that whereabouts of the child is not known. It is, in these circumstances, prayed that a writ of habeas corpus may be issued to cause the production of the child. The apprehension of the petitioner, it appears, is that the child who was in the custody of its mother is now detained by respondents 6 and 7. W.P.(Crl.)425/09 -2- 2. Prima facie, the grievance is not inspiring. The child was in the custody of its mother. Even assuming that the child is now along with respondents 6 and 7, that custody by respondents 6 and 7 can only be traced to the custody of the mother. We further note that already proceedings have been initiated before the Family Court as O.P.(G&W)No.707/09. That is the proper forum before which the dispute between the petitioner and his wife (the sole respondent in O.P.(G&W) No.707/09) has to be resolved. There is no contention before us that the attempts made by the Family Court to procure the presence of the child did not succeed or that the child is being kept away and concealed from the Family Court. If that were the situation, certainly, this Court could have considered invocation of the jurisdiction under Article 226 of the Constitution of India. At the moment and with the available inputs, we can perceive the dispute only as one purely between spouses about the custody of the child. That dispute as observed earlier must be resolved in the proceedings that have already been initiated before the Family Court as O.P.(G&W)No.707/09. At the moment, we do W.P.(Crl.)425/09 -3- not find any necessity or justification to invoke our jurisdiction under Article 226 of the Constitution. We may at the risk of repetition, state that there is no contention that the child is being kept away from the jurisdiction of the Family Court in spite of any directions of the Family Court. 3. We are in these circumstances satisfied that this petition only deserves to be dismissed, with the observation that the petitioner must move the Family Court to get appropriate orders passed about the interim custody of the child. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn