IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 WP(Crl.).No. 518 of 2011(S) --------------------------- PETITIONER(S): ---------------------- KARTHIKEYAN, AGED 38 YEARS, S/O. KESAVAN, RAHUL BHAVAN, PATHIYOOR VILLAGE. BY ADVS. SRI. S. K. MURALEEDHARA KAIMAL SRI. S. MOHANAN RESPONDENT(S): ------------------------- 1. SUPERINTENDENT OF POLICE, ALAPUZHA 688 001. 2. CIRCLE INSPECTOR OF POLICE, OFFICE OF THE CIRCLE INSPECTOR MANNAR, MAVELIKKARA 690 101. 3. SUB INSPECTOR OF POLICE MANNAR POLICE STATION, MANNAR, MAVELIKKARA 690 101. 4. VASUDEVAN AGED 68 YEARS, LEKSHMY BHAVANAM, THRIPPARATHURA VILLAGE, CHENNITHALA 690 105. 5. LEKSHMY AGED 60 YEARS, W/O.VASUDEVAN, LEKSHMY BHAVANAM, THRIPPARANTHURA VILLAGE, CHENNITHALA 690 105. 6. SREEKUMAR, AGED 32 YEARS, S/O. VASUDEVAN, LEKSHMY BHAVANAM, THRIPPARANTHURA VILLAGE, CHENNITHALA 690 105. R1 TO R3 BY SR. GOVT. PLEADER SRI. R. PADMARAJ R4 TO R6 BY ADV. SRI. ABRAHAM SAMSON THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(Crl.).No. 518 of 2011(S) APPENDIX PETITIONER'S EXHIBITS EXT.P1 COPY OF THE MARRIAGE DOCUMENT ISSUED BY THANDAR MAHA SABHA. EXT.P2 COPY OF THE RATION CARD. EXT.P3 COPY OF THE OP CARD ISSUED BY GOVERNMENT HOSPITAL MAVELIKKARA. EXT.P4 COPY OF THE COMPLAINT BEFORE 2ND RESPONDENTS. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(Crl).No.518 of 2011-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of December, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.Read orders dated 28.11.2011 and 13.12.2011. 2.It is extremely unfortunate that this case did not succeed through the process of mediation. 3.Be that as it may, left to us we are unable to find out whether there is any reason why the two children Vishnu and Kavya should turn out to be victims of any bargain between their father and maternal grandparents. They are facing the situation hardly within three months of demise of their mother. WPCR518/11 -: 2 :- 4.As noted by us earlier, the petitioner was working in Bangalore. Following an arranged marriage, the wife went to reside with him. The first child was born in Kerala. The second one was delivered premature in Bangalore. It appears that the said girl child developed some issues in connection with the premature delivery. She needed constant attention for some time. The petitioner brought down his wife and two children to Kerala. They were staying with the parents of the wife. The children are in a school in Mavelikkara, near the maternal grandparents' home. The husband went abroad, obviously, being confident that his wife and children will safely be with his parents-in-law. 5.Unfortunately, the woman fell sick. This brought the husband back from the Gulf. She died. 6.While the petitioner has the only complaint that he does not have access to the children, the maternal grandparents of the children take the WPCR518/11 -: 3 :- stand that he can have all access. We see that there are certain issues. The body of the woman was buried/cremated in her maternal home yard. The grandparents say that the children are involved in lighting of lamp there, for at least, a certain period. In the company of the grandchildren, the maternal grandparents may also get solace to get over the demise of their daughter. At the same time, the husband has also certain needs. The company of the children would, obviously help him to tide over the situation of having lost the wife. More importantly, the children should have material and emotional support of the surviving parent. We cannot but treat this as a right of the children in terms of the Constitution and the laws. 7.Taking the totality of the facts and circumstances into consideration, we have to mould relief by ensuring the best interest of the children. The petitioner, as the father, should have every right to decide matters relating to WPCR518/11 -: 4 :- the children. He is the natural guardian. He is the sole surviving guardian. In law, there is nothing on record which would be taken out as an accusation against him. The children are studying in a school in Mavelikkara. They continue to be housed with the maternal grandparents following the situation obtained just before the death of their mother. They were in the house of the maternal grandparents along with their mother. The elder one is in the 3rd Standard and the younger goes to the LKG in the same school. The situation obtained when their mother was alive should continue for some time. Otherwise, it will upset the environment of the children at this stage of their life and would not be in the best interest. 8.We also see that the petitioner's mother and unmarried sister are available in his house. They should also have access to the children. Rather, we would say that the children should have access to them. That is necessary for continuous WPCR518/11 -: 5 :- evolution of the children with the passage of time. Anyone can be a substitute, but not a mother. That can be well supported only by holding out caskets of love from both the families. 9.Taking all relevant factors into consideration, we are of the view that, as of now, the situation can be, and has to be, managed as under: i.At about 10 a.m. on the day following the closing of the school for Christmas Holidays, the children will be permitted to go with the petitioner for a period of three days. The children will be taken by the father from the school where the children are now studying. He will bring back children to that school at the end of three days and hand over to their maternal grandparents. We also record the submission on behalf of the maternal grandparents that the father of the WPCR518/11 -: 6 :- children would always be welcome to even come and stay with them, even if the petitioner does not desire to regularly stay there. We think that if this suggestion is accepted, the children can occasionally go to the paternal grandparent and paternal aunt and the father and be with the maternal grandparents. This would be best in the interest of the children. This is a matter that the petitioner and the paternal aunt of the children to work out amicably. We see that the petitioner was working even in October, 2011 in Qatar and is now essentially jobless, he having come down. We indicate that he could also find ways and means of getting better employment elsewhere, including abroad so that he would be then earning better for the unfortunate children. ii.We further order that if the parties are WPCR518/11 -: 7 :- dissatisfied with the working out of this order or if they need any further direction, the petitioner or the grandparents, as the case may be, may move the jurisdictional Family Court. iii.After Christmas Holidays, the children can go with the father on every alternative week end(Saturday morning to Sunday evening). As regards summer vacation, the matter could be considered and amicably resolved. The writ petition is ordered accordingly. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- C.T.Ravikumar, Judge. Sha/