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 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WP(Crl.).No. 463 of 2009(S) --------------------------- PETITIONER(S): --------------- JAYAGOPALAN.T., KONGOT PALLANGARA HOUSE, VALLIYODE, MANGALAM VILLAGE, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.V.V.ASOKAN SRI.MAHESH V.MENON RESPONDENT(S): --------------- 1. DIRECTOR OF GENERAL OF POLICE, THIRUVANANTHAPURAM. 2. SUPERINTENDENT OF POLICE, THRISSUR. 3. DEPUTY SUPERINTENDENT OF POLICE, ALATHUR. 4. CIRCLE INSPECTOR OF POLICE, CHELAKKARA. 5. SUB INSPECTOR OF POLICE, THIRUVILLWAMALA. 6. K.GOPALAKRISHNAN,S/O.P.K.NAIR, KANJALLY HOUSE, KRISHNA NIVAS, P.O.KANIYARKODE, THIRUVILLWAMALA, THRISSUR TALUK. 7. REMA, W/O.K.GOPALAKRISHNAN, KANJALLY HOUSE, KRISHNA NIVAS, P.O.KANIYARKODE, THIRUVILLWAMALA, THRISSUR TALUK. BY G.P. SMT. SMITHA SUKUMARAN THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No. 463 of 2009-S ------------------------------------------------- Dated this the 11th day of November, 2009 JUDGMENT Basant,J. The petitioner is the father of two minor children - daughters, aged 8 years and 6 years. The wife of the petitioner i.e., the mother of the minor children is no more. According to the petitioner, there were certain disagreements and strain in the marital tie. But all those were settled and the deceased/wife and the petitioner had resumed cohabitation. The death of the wife of the petitioner took place on 5/7/09. The short grievance of the petitioner is that his children, who had gone to the house of the maternal grandparents, are being illegally detained by respondents 6 and 7 - maternal grandparents of the children. 2. The petitioner himself admits that the maternal W.P.(Cri) No. 463 of 2009 -: 2 :- grandparents have already approached the Family Court and have filed G.O.P.No.1012/09 to get the 6th respondent herein appointed as the guardian of the minor children. That petition is admittedly pending before the Family Court. The petitioner has already entered appearance in that proceedings. 3. The petitioner has now come to this Court with the prayer that a writ of habeas corpus may be issued to search for, trace and produce his minor children, who, according to him, are being illegally detained by respondents 6 and 7. According to the petitioner, the children are not attending their schools these days and it is, in these circumstances, that the petitioner wants this Court to invoke the jurisdiction under Art.226 of the Constitution. 4. A writ of habeas corpus would issue only when the court is prima facie satisfied that there is illegal detention/confinement of a person depriving him of his cherished right of freedom and liberty. In the instant case, the dispute, it is transparently evident, is purely one regarding guardianship and custody of the two minor children between the father and the maternal grandparents, the wife having already expired. It is obviously not a case of illegal detention or confinement as respondents 6 and 7 have approached the Family Court admitting and W.P.(Cri) No. 463 of 2009 -: 3 :- accepting their custody and seeking directions from the competent court. By no stretch of imagination can it be hold, in these circumstances, that the minor children of the petitioner, the alleged detenues are under illegal confinement or detention. The ordinary law must take its course. The petitioner must seek appropriate further directions from the Family Court. The Family Court, needless to say, is competent to consider interim applications regarding custody and if either party moves the court for directions regarding interim custody, the Family Court will have to consider such request and pass appropriate orders. 5. The learned counsel for the petitioner submits that the Family Court, Thrissur, is vacant now as the incumbent has retired on superannuation. But there can be no vacuum. The District and Sessions Judge, Thrissur, i.e., the Additional Family Court, Thrissur, is in charge of the court during the absence of its regular Presiding Officer. The petitioner can certainly move the Judge in charge of the Family Court and seek appropriate emergent directions if there be any need or necessity for such directions. We have no reason to assume that the Additional Family Court, Thrissur, will not consider such request if made before it in accordance with law. 6. We do not, in these circumstances, find any reason to W.P.(Cri) No. 463 of 2009 -: 4 :- invoke our extraordinary constitutional jurisdiction to issue a writ of habeas corpus to search for, trace and produce the minor children of the petitioner. 7. This writ petition is, in these circumstances, dismissed with the observations made above. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //True Copy// P.S. to Judge