IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(Crl.).No. 236 of 2010(S) --------------------------- PETITIONER(S): --------------- BINDU, W/O.SATHEESH MOHAN AND D/O.T.V.SHANMUGHAN, AGED 35 YEARS, MONISHA NIVAS, NEAR AKURDI RAILWAY STATION CHINCHWADGAON, GURUDWARA ROAD, PUNE-33, MAHARASHTRA STATE. BY ADV. SRI.PAUL JACOB SRI.M.A.ANZAR SRI.PEARL K.DAVIS SRI.K.M.AJITH SRI.K.A.HASHIM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF POLICE, THRISSUR RANGE, THRISSUR. 3. THE CIRCLE INSPECTOR OF POLICE, THRISSUR TOWN WEST. 4. RAMESH, S/.PATTIKKARA KESHAVAN, AGED 40 YEARS, K.A.MANZIL, NEAR THENJITHUKAVU TEMPLE, AYYANTHOLE, THRISSUR-3. 5. P.K.RAJESH, S/O.PATTIKKARA KESHAVAN, AGED 37 YEARS, MEDATHIL APARTMENTS, 1ST FLOOR, ABHIYATHEE LANE, WEST FORT, THRISSUR. 6. RADHIKA RAVINDRAN, W/O.UTTOLLY RAVIANDRAN, AGED 36 YEARS, AKSHAY APARTMENTS, GROUND FLOOR, VASANTH NAGAR, PATTIRAKKAL, THRISSUR. 7. SEEMANDHINI KESHAVAN, W/O.LATE PATTIKKARA KESHAVAN, AGED 66 YEARS, MEDATHIL APARTMENTS, 1ST FLOOR, ABIYATHEE LANE, WEST FORT, THRISSUR. ADV. SRI.A.C.DEVY FOR R4 TO 7 SRI.P.S.LATHEESH FOR R4 TO 7 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.(Crl) No.236 of 2010 ---------------------------------------- Dated this the 8th day of July 2010 J U D G M E N T Basant,J This judgment must be read in continuation of the earlier orders passed by us in the matter resting with the order dated 01/07/2010. 2. Today both counsel submit that the child was produced before the Family Court on 06/07/2010. The Family Court has already made interim arrangements regarding the custody of the child and the matter stands posted to 17/7/2010 for further directions. 3. We record these facts. No further directions are necessary. 4. This writ petition is, in these circumstances, allowed in part to the above extent. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge W.P.(Crl) No.236/10 : 2 : Dated this the 1st day of July 2010 O R D E R 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 child - son aged 8 years (date of birth : 12/03/2002). The 4th respondent is the former husband of the petitioner and the father of the child. Respondents 5 and 6 are siblings of the father of the child and the 7th respondent is the mother of the 4th respondent. The petitioner and the 4th respondent have obtained divorce from the court. It was an ex parte decision by the Family Court, Thrissur, it is submitted. The child was with the 4th respondent and the petitioner had claimed custody of the child by filing Guardian O.P.No.1181/07. The 4th respondent herein did appear before the Family Court in G.O.P.No.1181/07. Interim orders were passed by the Family Court. In the course of the proceedings in G.O.P.No.1181/07, the 4th respondent remained ex parte and did not participate in the proceedings. After he was so set ex parte, interim directions were also not complied with. In these circumstances, the learned Judge of the W.P.(Crl) No.236/10 : 3 : Family Court proceeded to pass ex parte order in G.O.P.No.1181/07 on 30/04/2010. According to the petitioner, the whereabouts of the child were not revealed to the petitioner and she was hence not able to get custody of the child as per the order in G.O.P.No.1181/07. It is, in these circumstances, that the petitioner came before this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce her minor child. 2. Today when the case is called, the petitioner is present. The petitioner has already got re-married, it is submitted. Her present husband Sri.Satheesh is also present. Respondents 4 to 7 have also appeared before Court. They are represented by a counsel. Along with them, the alleged detenue - minor child Master Ashwin Ramesh is also present. 3. We permitted the child to remain with the petitioner during the pre-lunch session. After the lunch recess, we interacted with the child Master Ashwin alone initially. Later, we interacted with the child in the presence of the petitioner. Subsequently, we interacted with the petitioner, respondents 4 and 7 as also Sri.Satheesh, the present husband of the petitioner. W.P.(Crl) No.236/10 : 4 : 4. Respondents 4 and 7 submit that the child has been with them for the past about 4 years. Unfortunately, the 4th respondent has been set ex parte before the Family Court and an ex parte order has been passed. Application has been filed to get the ex parte order set aside. The same is pending before the Family Court. The child is now studying in third standard in the Amritha Vidhyalaya at Palakkad. Great difficulties will be experienced, if the child were to be uprooted from Palakkad where the child is now residing along with the 7th respondent. The 4th respondent is admittedly employed abroad and has now come on leave on coming to know of this proceedings. They pray that the child may not be handed over to the custody of the petitioner notwithstanding the ex parte order in G.O.P.No.1181/07. 5. We have considered all the relevant inputs. We are satisfied that, it is not necessary for us, exercising the jurisdiction under Article 226 of the Constitution of India to issue any specific directions regarding the permanent custody of the child. We deem it proper that the Family Court must be directed to pass appropriate orders. The Family Court shall take W.P.(Crl) No.236/10 : 5 : into consideration all the relevant circumstances and issue appropriate further directions regarding custody of the child. We are aware that an ex parte order has been passed in G.O.P.No.1181/07 on 30/4/2010; but we have been apprised of the fact that a petition to set aside the ex parte order is pending before the Family Court. It is hence that we say that it will be better in the interests of justice to leave it to the Family Court to pass appropriate further directions. Parties can be directed to appear before the Family Court on 06/07/2010 along with the child and the Family Court can be directed to issue appropriate further orders. 6. One short question survives. With whom shall the child be sent today so that the child can be produced by such party before the Family Court on 06/07/2010? We take note of the rival contentions. We take note of the plight of the petitioner who has not had occasion and opportunity to interact with the child for quite some time now. We are, in these circumstances, satisfied that the child can be handed over to the custody of the petitioner today with specific directions to her to produce the child before the Family Court on 06/07/2010 at 10.30 a.m. The W.P.(Crl) No.236/10 : 6 : Family Court shall pass appropriate directions. We had left the child with the mother from morning and we are satisfied that the child has acclimatised well in the company of his mother and is absolutely comfortable in such custody. 7. Call this petition again on 08/07/2010. On that day, the learned counsel shall inform this Court whether the directions have been complied with and the child has been produced before the Family Court. 8. Hand over copy of this order to both counsel straight away. The registry shall forthwith communicate this order to the Family Court by fax/telephone. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr W.P.(Crl) No.236/10 : 7 : W.P.(Crl) No.236/10 : 8 : R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009