IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(Crl.).No. 299 of 2010(S) --------------------------- PETITIONER(S): --------------- NIKITH CHANDRAN N.M. AGED 37 YEARS, S/O.CHANDRASEKHARAN, CHENGUTTY HOUSE, PUTHOORVAYAL, MEPPADI, WAYANAD DISTRICT. BY ADV. SRI.C.K.SREEJITH SRI.V.V.PADMANABHAN RESPONDENT(S): --------------- 1. DHANYA.K.S., AGED 28 YEARS, D/O.SHIVADASAN, KOWSTHUBAM(HOUSE),NEAR PHC,MEPPADI PO, WAYANAD 673 577, NOW WORKING AT ABROAD.673577 2. K.C.SHIVADASAN, KOWSTHUBAM(HOUSE),NEAR PHC,MEPPADI PO, WAYANAD 673 577, 3. INDIRA, W/O.K.C.SHIVADASAN, RESIDING AT KOWSTHUBAM(HOUSE),NEAR PHC,MEPPADI PO, WAYANAD 673 577, 4. THE DISTRICT SUPERINTENDENT OF POLICE, WAYANAD DISTRICT-673 592. 5. THE SUB INSPECTOR OF POLICE, MEPPADI POLICE STATION, WAYANAD 673 577. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No.299 of 2010 ---------------------------------------- Dated this the 21st day of July 2010 J U D G M E N T Basant,J The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his minor son Adhnan Govind, now aged about 7 years. The 1st respondent is his wife. The child was born in that valid matrimony. The 1st respondent, for herself and on behalf of the minor child, had filed a claim under Section 125 Cr.P.C and that claim has been allowed by the Family Court. Directions have been issued to pay maintenance to the wife and child. Wife and child were residing along with respondents 2 and 3, the father- in-law and mother-in-law respectively of the petitioner. The 1st respondent/wife has subsequently secured employment abroad and has gone abroad, submits the learned counsel for the petitioner. When she left for her place of employment abroad, she has left the child with respondents 2 and 3. The petitioner is not being permitted to meet and interact with the child. This amounts to illegal detention and confinement of the minor child. It is prayed that a writ of habeas may be issued to produce the child before the Court and permit the petitioner to take the child. W.P.(Crl) No.299/10 : 2 : 2. We are afraid that the request cannot be accepted. The dispute essentially is between the spouses about the custody of the child. When the mother went abroad should the child have been left with her parents or with the petitioner, the father of the child? This is the short dispute. Even before the mother left India, a petition had been filed under Section 125 Cr.P.C and maintenance has already been ordered for the child who was in the custody of the mother. 3. In any view of the matter, continuance of the child under the custody and responsibility of respondents 2 and 3 after the 1st respondent left India cannot, by any stretch of imagination, be held to be illegal confinement or detention. 4. This petition is hence not maintainable. The petitioner must resort to the ordinary courses available to him to claim custody of the child. 5. In the result, this petition is dismissed with the above observations. This judgment will not, in any way, prejudice the rights of the petitioner to claim custody of the minor child by initiating appropriate proceedings before the Family Court. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.(Crl) No.299/10 : 3 : W.P.(Crl) No.299/10 : 4 : W.P.(Crl) No.299/10 : 5 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009