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 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 WP(Crl.).No. 524 of 2011(S) ------------------------------------ PETITIONER: MADHUKUMAR, KURIYAN PARAMBIL HOUSE, KUZHIKKALA P.O., PATHANAMTHITTA. BY ADV. SRI.V.K.SUNIL RESPONDENTS: 1. THE DISTRICT SUPERINTENDENT OF POLICE, PATHANAMTHITTA-689 45. 2. THE CIRCLE INSPECTOR OF POLICE, KOZHENCHERRY-689 641. 3. THE SUB INSPECTOR OF POLICE, ARANMULA POLICE STATION, PATHANAMTHITTA-689 645. 4. KUMARAN NAIR, DEVI SADANAM, PULLADU P.O., THIRUVALLA, PATHANAMTHITTA-689 548. 5. SIVAN PILLAI, CHUZHIKUNNIL, PULLADU P.O. THIRUVALLA, PATHANAMTHITTA-689 548. R1 TO R3 BY GOVT. PLEADER SRI.R.PADMARAJ R4 & R5 BY ADV. SRI.T.P.PRADEEP THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WOCR 524/2011 EXT. P1 TRUE COPY OF THE MARRIAGE CERTIFICATE OF THE PETITIONET DT. 30.8.2011 EXT. P2 TRUE COPY OF THE MARRIAGE PHOTGRAPHS OF THE PETITIONER EXT. P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DT. 20.9.2011 EXT. P4 TRUE COPY OF THE RECEIPT OF EXT. P3 ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT DT. 20.9.2011 /TRUE COPY/ Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. ------------------------------------------------- W.P.(Crl.)No.524 of 2011 S ------------------------------------------------- Dated this the 18th day of November, 2011 JUDGMENT Thottathil B.Radhakrishnan, J. This writ petition is coming to a happy end. 2. Read earlier orders. 3. Fourth respondent's daughter Rajitha N.K.Nair, a 29 year old graduate and a divorcee, married the petitioner. On the allegation that fourth respondent has illegally detained her, petitioner filed this writ petition also arraying Rajitha's uncle as fifth respondent. Rajitha along with her father is present. We recorded yesterday that she desires to go with the petitioner. Then, though not directly, a subject matter of this writ petition is the daughter of Rajitha. We saw the helpless situation of the daughter of Rajitha born through her husband in the first marriage. That girl, aged 6- 7 years, as on yesterday, was with the fourth respondent, WPCR 524/2011 2 the maternal grandfather. He had certain apprehensions on the issue as to whether the child should be permitted to accompany its mother along with the step father. We interacted with the fourth respondent on that matter yesterday. We put the apprehension of the fourth respondent to the alleged detenue. She told us that the apprehension of the fourth respondent might have been gathered from certain statements stated to have been made by the child. We therefore thought it appropriate to have the child brought here. 4. The child is here today with its maternal grandfather. We let it go to its mother. We noticed in court the immediate affection and reaction of the child into the arms of the mother. We see that the fourth respondent, Rajitha's father, is deeply interested in the affairs of Rajitha and the child. We see a responsible parent in him. He is also a responsible grandparent. With this, we are clear in our mind that though acceptance of the petitioner into the house of Rajitha's parents may be delayed, the freedom of the child WPCR 524/2011 3 in both the houses should be equally secured. We are recording all these not as a right of Rajitha or the grandparents, but as a right of the child whose parents are separated with no custody orders and the present emotional support that the child gets is through its mother Rajitha and maternal grandparents. We are of the view that for proper modulation, physical well being and growth of that girl child she should have the company and guidance of well matured grandfather on the maternal side and other siblings and relatives of Rajitha while the girl child will go to stay with Rajitha and the petitioner. We take this decision after ascertaining the views of the parties on either side. Essentially what is reflected in this order is based on the consonance arrived at before us. We also record that the grandparent, the fourth respondent, desires that the child be permitted to go to his house and be there during the weekends and continuously at least for one half of every long vacation or holidays without hampering its studies in any manner. The child is in the first standard. Fortunate for WPCR 524/2011 4 the child, the residences of the petitioner and the fourth respondent are quite near, stated to be within a distance of 7 kms. Therefore, the movement of the child will also be no problem with proper parenting and other support. 5. We notice that the biological father of the child is stated to have not sought for the custody of the child until now. The child is 6-7 years old by now and having interacted with its mother, we are of the firm view that the predominant interest of the child will be best served on all fours by it continuing with its mother with weekend visits to the maternal grandparents on every Saturday and Sunday. We therefore, direct that the fourth respondent can pick up the child from the school on the last working day of every week and put it back in school on the next Monday morning or succeeding working day. As far as long holdings are concerned, the child will be permitted to go by the parties coming to an understanding while time will pass, however, ensuring that during half of the long vacation the child will enjoy with maternal grandparents. We are sure that within a WPCR 524/2011 5 short time, the parents of Rajitha would obviously welcome her home. This would enable proper evolution of the child which needs its mother and maternal grandparents. 6. With all these, we close this writ petition holding that the alleged detenue Rajitha N.K.Nair is a free person and that she may go with the petitioner whom she has married and her daughter Devapriya born through her first husband will also go with its mother and her custody would be regulated by the terms of this judgment. 7. Having dealt with the predominant interest of the child in this jurisdiction, we are clear in our view that any further direction would be issued only from this Court and not from any other subordinate court unless otherwise ordered. We clarify that the biological father of the child has any particular claim or request, it will be open to him to move in this writ petition for further reliefs. In the event of the biological father making any request to Rajitha or her parents enquiring about the affairs of the child, they shall inform him about the proceedings which lead to this WPCR 524/2011 6 judgment and contents of this judgment. 8. We further direct that petitioner will file an affidavit that he will act always in the best interest of the child and would care for her as if she is the biological child born to him and would provide for her health and well being along with Rajitha. We further direct the petitioner and the fourth respondent to produce copy of this judgment before the Head of the Educational Institution where the child is stated to be studying having regard to the directions we have issued above in relation to the access of the child during weekends. Sd/- (Thottathil B.Radhakrishnan, Judge) Sd/- (C.T.Ravikumar, Judge) tkv