IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(Crl.).No. 242 of 2010(S) --------------------------- PETITIONER(S): --------------- BIJU K.ULAHANAN, S/O.K.M.ULAHANNAN, AGED 39 YEARS, RESIDING AT KUNNEL HOUSE, VALLAKKADAVU P.O., VANDIPERIYAR, IDUKKI. BY ADV. SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN RESPONDENT(S): --------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, ATTINGAL. 2. THE CIRCLE INSPECTOR OF POLICE, KAZHAKKUTTOM, THIRUVANANTHAPURAM. 3. THE SUB INSPECTOR OF POLICE, KAZHAKKUTTOM POLICE STATION, KAZHAKKUTTOM, THIRUVANANTHAPURAM. 4. BEENA BIJU, D/O.ANNAMMA THOMAS, AGED 34 YEARS, HAVING RESIDENCE AT MANGALAPPALLIYIL HOUSE, KANJIYAR, IDUKKI, PRESENTLY STAYING AT T.C.2/768-3, CHALAKUZHY LANE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 5. SAJI THOMAS, S/O.THOMAS ABRAHAM, AGED ABOUT 39 YEARS, RESIDING AT MANGALAPPALLIYIL HOUSE, THUNDATHIL P.O., KARYAVATTOM, THIRUVANANTHAPURAM. ADV. SRI.SABU S.KALLARAMOOLA FOR R4-5 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) 242 of 2010 ---------------------------------------- Dated this the 27th day of July 2010 J U D G M E N T Basant,J This writ petition has been filed by the petitioner for issue of a writ of habeas corpus to search for, trace and produce his minor daughter Akshay Biju, aged 11 years and Aleena Biju, aged 5 ½ years. According to the petitioner, these minor children are born in the valid matrimony between him and the 4th respondent. They have been taken away from him by the 4th respondent, in collusion with her brother, the 5th respondent. They have been taken away from the petitioner's house by the 4th respondent on 13/4/2010. The petitioner had filed an application O.P.(G & W) No.223/2010 before the Family Court, Thodupuzha for custody of the children. The children are not made available before the Family Court also. It is, in these circumstances, that the petitioner has come before this Court. 2. This petition was admitted on 23/6/2010. Notice was ordered to the respondents. Respondents 4 and 5 have appeared before the Court. Children have been produced before the W.P.(Crl) No.242/10 : 2 : Court. The respondents have a different story to narrate. According to them, the 4th respondent was subjected to physical and mental cruelty and this obliged her to leave the matrimonial home. 3. When the parties appeared before Court, we attempted to persuade the parties to come to a harmonious settlement. We must say that our efforts have not succeed. At one stage, it was felt that the parties were about to settle the disputes. Our interactions with them today reveal that though the petitioner is willing to resume co-habitation with the 4th respondent, the 4th respondent is not willing. Similarly, even though parties broadly agree alternatively that marital tie can be put to an end, they are not able to agree on the details. 4. In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenues are under illegal confinement or detention. In the instant case, it is only a case of disputes between the spouses about the custody of the children. We were persuaded to issue notice in this writ petition as it was submitted that the whereabouts of the children are not known and that the children have been kept away from the petitioner at some unknown W.P.(Crl) No.242/10 : 3 : destination without even admitting the children to schools. 5. We are satisfied from the statements of the 4th respondent before us that the children having been admitted to a school at Thiruvananthapuram and that they are attending their school. In these circumstances, we are satisfied that it will only be appropriate to direct the parties to appear before the Family Court and seek interim directions regarding custody of the children. We are informed that O.P (G&W) No.223/2010 is pending before the Family Court, Thodupuzha. That petition is filed by the petitioner herein claiming custody of the children. Respondent has not entered appearance personally in that case so far. It is submitted that the 4th respondent has entered appearance through counsel. It is submitted that the matter remained stayed by an order of this Court in Tr.P.C.No.187/2010. We are disposing of the transfer petition today by separate orders. We are satisfied that this writ petition can, in these circumstances, be dismissed with appropriate further directions. 6. In the result, a) This writ petition is dismissed. W.P.(Crl) No.242/10 : 4 : b) The 4th respondent shall produce the children before the Family Court, Thiruvananthapuram on 06/08/2010. The Family Court, Thiruvananthapuram shall consider the claim for interim custody filed by the petitioner and pass appropriate orders after hearing both sides. We make it clear that the children must be produced before the Family Court on 06/08/2010. This case shall be called again on 10/08/2010 for the parties to report compliance. Hand over copy of this judgment to both counsel. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.(Crl) No.242/10 : 5 : W.P.(Crl) No.242/10 : 6 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009