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 6TH JULY 2010 / 15TH ASHADHA 1932 WP(Crl.).No. 244 of 2010(S) --------------------------- PETITIONER: --------------- BUNDU P.C.,W/O.LATE JOSH KUMAR, KALAYATHINKAL HOUSE,NURSING ASSISTANT, GOVT.GENERAL HOSPITAL, ERNAKULAM, NOW RESIDING AT AMMAVEETTU VILAYIL HOUSE, KADALIKADU VIA, MUVATTUPUZHA. BY ADV. SRI.JOSHI N.THOMAS RESPONDENTS: --------------- 1. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHAKADU, THIRUVANATNHAPURAM. 2. SUPERINTENDENT OF POLCIE (RURAL) ERNAKULAM AT ALUVA. 3. CIRCLE INSPECTOR OF POLICE,MUVATTUPUZHA 4. SUB INSPECTOR OF POLICE,VAZHAKKUALM POLICE STATION, MUVATTUPUZHA. 5. THANKAMANY BHASKARAN, KALAYATHINKAL HOUSE,AMABALMPADY, VANNAPPURAM P.O.,VIA.THODUPUZHA,PIN-685582. 6. JIJI KUMARI,S/O.SABU, KALAYATHINKAL HOUSE,AMABALMPADY, VANNAPPURAM P.O.,VIA.THODUPUZHA,PIN-685582. GOVERNMENT PLEADER SRI.K.J.MUHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.) No.244 of 2010 ********************* Dated this the 6th day of July, 2010 JUDGMENT 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 her minor daughters Jyothilakshmi, aged about 16 years, Jayalakshmi, aged about 13 years and Sreelakshmi, aged about 7 years. The petitioner is a widow. Her husband, ie. the father of the 3 minor children, had committed suicide on 31.03.2010. After the death of her husband, all the 3 children were taken away to their parental house and the children are now being held under illegal confinement and detention by respondent Nos.5 and 6, who are her mother in law and sister in law respectively. She is not being permitted even to see her young children. It is, in these circumstances, that the petitioner came to this Court with this petition on 24.06.2010. 2. This petition was admitted on 25.06.2010 and the case was posted to 05.07.2010. On 05.07.2010 as the parties could not appear, the case was posted to this date. 3. Today when the case is called, the petitioner is present. She is represented by her counsel. Respondent Nos.5 W.P(Crl.) No.244 of 2010 2 and 6 have appeared before Court. They are represented by their counsel. Along with them, the 3 minor children of the petitioner have also come to Court. 4. We permitted the children, who have come to Court along with respondent Nos.5 and 6 and who are allegedly detaining and confining them, to be with their mother, the petitioner, during the pre lunch session. After the lunch recess, we interacted with the petitioner and her 3 children together initially. Later we interacted with the children alone. Subsequently we interacted with the children in the presence of the petitioner as well as respondent Nos.5 and 6. The learned counsel for the petitioner, the learned counsel for respondent Nos.5 and 6 and the learned Government Pleader were also present. 5. We gather that there was a strained relationship between the petitioner and her husband. The husband and wife along with the children were residing in a house. The petitioner complains that there was ill treatment towards her and she was obliged to keep away from that house occasionally. The children have a different version. According to them, their mother used to go away from the house occasionally. W.P(Crl.) No.244 of 2010 3 6. Be that as it may, the father of the children, ie. the husband of the petitioner, admittedly took the children to his parental home on 31.03.2010 and left them there. Thereafter he allegedly committed suicide by consuming poison. He has allegedly left a suicide note. From that day onwards, all the 3 children are residing with their paternal grandmother and paternal aunt, ie. respondent Nos.5 and 6. The eldest child continues in the school where she was studying during the previous year. The other two children have been shifted from schools were they were earlier studying to a school near the house of the 5th respondent. They have been attending school from the re-opening of the school this year, it is submitted. 7. The learned counsel for the petitioner submits that the petitioner has already moved the Family Court and has filed O.P.No.1095 of 2010 claiming custody of the children. No interim application for custody has been filed, it is submitted. The learned counsel for the petitioner submits that the petitioner shall be filing an application for interim custody of the children immediately. 8. All the 3 children in the course of our interactions with them submit that they are not under any illegal confinement W.P(Crl.) No.244 of 2010 4 or detention. They want to reside with respondent Nos.5 and 6. They have grievances against their mother. We do not propose to narrate them in this judgment. 9. The petitioner having already moved the Family Court and we having satisfied ourselves from the available inputs that the children are not under any illegal confinement or detention, we do not think it necessary to disturb the present custody of the 3 children with respondent Nos.5 and 6 by passing any order in this Writ Petition. 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. We are satisfied that they are not. In these circumstances, we are satisfied that no further directions are necessary in this Writ Petition. 10. However, we are satisfied that the parties can be directed to seek appropriate orders from the Family Court in O.P.No.1095 of 2010 regarding interim custody of the children if they so choose. Respondent Nos.5 and 6 undertake that they shall produce the children before the Family Court whenever the court so directs. Respondent No.5 submits before us that she has no intention to keep the children against their wishes in her W.P(Crl.) No.244 of 2010 5 custody. The children want to be with her and that is why she has permitted them to be with her, submits the 5th respondent. 11. In the result: a) This Writ Petition is, in these circumstances, dismissed; b) We make the observation that the petitioner can seek appropriate directions from the Family Court regarding interim custody of the children in the pending O.P.No.1095 of 2010. That case now stands posted to 30.08.2010, it is submitted. Respondent Nos.5 and 6 agree to appear before the Family Court with the children on 30.08.2010, to which date O.P.No.1095 of 2010 is now posted. We accept that undertaking. A copy of O.P.No.1095 of 2010 filed by the petitioner before the Family Court, Ernakulam, is handed over by the learned counsel for the petitioner to the learned counsel for respondent Nos.5 and 6. 12. The learned counsel for respondent Nos.5 and 6 submits that many more facts will have to be brought to the notice of the Court. After the death of the husband of the petitioner, none other than the mother of the petitioner had come to this Court with W.P(Crl) No.166 of 2010 complaining that the petitioner is in the illegal custody/detention of one W.P(Crl.) No.244 of 2010 6 Noushad and this Court by judgment dated 13.05.2010 had dismissed the said Writ Petition after ascertaining the response of the petitioner. We need only mention that all relevant submissions can be made before the Family Court when the application for custody/interim custody is taken up by the Family Court for consideration. We do not want to make any further reference in this judgment to those circumstances. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/