Ancy A v. Station House Officer, Kulathoopuzha Police Station & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 7TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939 WP(CRL).No. 42 of 2018 PETITIONER: ANCY A, AGED 30 YEARS, D/O ABDUL MOOSA, RAMSY MANZIL, CHOZHIKKODU P.O., KULATHOOPUZHA, KOLLAM DISTRICT, PIN-691310. BY ADVS.SRI.C.M.EBRAHIM SMT.M.KABANI DINESH RESPONDENTS: 1. STATION HOUSE OFFICER, KULATHOOPUZHA POLICE STATION, KOLLAM, PIN-691 310. 2. DISTRICT SUPERINTENDENT OF POLICE (RURAL), KOLLAM, PIN-691 001. 3. THE STATE PUBLIC CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 024. 4. MAJEED P.A., AGED ABOUT 60 YEARS, S/O ABDUL KHADER, PONPURATH HOUSE, PARAYAKAD P.O., ALAPPUZHA, PIN- 688 540. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.K.B.RAMANAND. R4 BY ADV. SMT.SADHANA KUMARI ESWARI. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07-02-2018, ALONG WITH WP(C).NO.4068/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPCR42/2018 ## APPENDIX PETITIONER'S EXHIBITS: NIL RESPONDENTS' EXHIBITS: NIL -TRUE COPY- PS TO JUDGE “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(Crl).No.42 of 2018 & WP(C).No.4068 of 2018 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of February, 2018 ## Judgment ## Chitambaresh, J. “Amma endrazhaikatha uyir illaiye Ammavai vanangatha uyarv illaiye” (There is no life form which does not call for its mother There is no growth in life without respecting the mother) sang K.J.Yesudas for the Tamil movie - 'Mannan'. 2. Master Mohammed Abesag ('the detenu' for short) aged 5½ years has been staying with his mother after the parents have fallen apart. He is studying in the Lower Kindergarten class in KMJ English Medium School which is near Wpcr42/18 & wpc4068/18 -: 2 :- to the house of his mother. His father had divorced his mother on 11.11.2014 by pronouncing Talaq in the presence of the officials of the local mosque. It appears that an agreement was also entered into between his maternal grandfather and his father at the time of divorce. The agreement was necessitated to record the factum of returning the jewels and money by his father to his maternal grandfather. The agreement also provided that his father will have his interim custody for five days during the course of four months. His maternal grandparents were permitted to see him once in a month as per the terms of the agreement. The detenu was at other times to be with his mother only who of course was not a party to the agreement so entered into. 3. The father of the detenu is now employed in Saudi Arabia and the paternal grandparents used to visit him now and then as was agreed. His mother used to leave him with her sister living close-by whenever she goes for employment Wpcr42/18 & wpc4068/18 -: 3 :- as a Software Engineer during day time. The paternal grandparents during their usual visit on 27.1.2018 took away the detenu never to hand back. The mother of the detenu tried to contact the parents of her divorced husband over phone which was not of any avail. The mother of the detenu finally lodged a complaint to the Police and a criminal case for abduction has been registered on 1.2.2018. The case has been registered as Crime No.138/2018 on the file of the Kulathoopuzha Police Station under Section 363 IPC. 4. It is under these circumstances was WP(Crl)No.42/2018 filed seeking the issue of a writ of habeas corpus to produce the detenu in court. The allegation is that the detenu has not been attending the school since 27.1.2018 and his whereabouts are unknown. The writ petition has been filed by the mother of the detenu complaining that he is being shifted from place to place. The police as well as the paternal grandparents of the detenu Wpcr42/18 & wpc4068/18 -: 4 :- have been impleaded as respondents in the writ petition. We issued notice to the respondents in the writ petition and directed the detenu to be produced in court on 7.2.2018. 5. The paternal grandfather of the detenu on his own behalf and as the power of attorney holder of his son abroad filed WP(C) No. 4068/2018. The said writ petition alleging harassment by police was filed on 5.2.2018 after WP(Crl.) No. 42/2018 was filed on 2.2.2018. The parties are at variance as to whether WP(C) No. 4068/2018 was filed knowing the pendency of WP(Crl.) No. 42/2018. The Division Bench before whom WP(C) No. 4068/2018 was listed directed both the cases to be posted together for hearing. The mother of the detenu as well as his paternal grandparents were present in court on 7.2.2018 and we interacted with them. Both have divergent versions as to from where the detenu was collected by his paternal grandparents on 27.1.2018. The mother of the detenu would swear that he was taken away from the Wpcr42/18 & wpc4068/18 -: 5 :- house of her sister residing nearby. The paternal grandparents of the detenu would swear that he was collected from a shop near to the house run by a tamilian lady. The fact remains that the detenu was removed from the custody of his mother forcibly without any orders from any court of law. 6. The mother of the detenu refuted the allegation that she has married again or that she is residing with her new husband in a rented house. The mother of the detenu on the other hand asserted that he is being looked after well and has been regularly attending the school. The paternal grandparents of the detenu maintained that he is abandoned in a shop nearby after the school hours. The paternal grandparents of the detenu added that their son employed abroad is the natural guardian. Their custody of the detenu is on behalf of their son as legal guardian which cannot be interfered with by a writ court. Wpcr42/18 & wpc4068/18 -: 6 :- 7. A reference to Section 352 of Mahomedan Law (the principles of which were edited by Sir Dinshaw Fardunji Mulla) is apposite: “ 352. Right of mother to custody of infant children . The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.” Thus the custody of the detenu who has not yet completed the age of seven years by his mother though divorced by his father is permissible under personal law. Moreover the question of guardianship has to be independent of and distinct from the custody in the circumstances of each case. This proposition of law has been reiterated in Athar Hussain v. Syed Siraj Ahammed [(2010) 2 SCC 654] . What is best for Wpcr42/18 & wpc4068/18 -: 7 :- the welfare of the child can be better adjudicated by the Family Court and not by this Court in writ jurisdiction. The principles of personal law have to be applied subject to the provisions of the Guardian and Wards Act, 1890. This is because the dictates of personal law must be subordinated under Section 17 of the Guardian and Wards Act, 1890. The welfare of the detenu who is a minor is paramount which only the Family Court can decide based on evidence adduced. 8. The Supreme Court has recently held in Nithya Anand Raghavan v. State (NCT of Delhi) [(2017) 8 SCC 454] as follows: “In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent Wpcr42/18 & wpc4068/18 -: 8 :- was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.” We do feel that the custody of the detenu has to be restored to his mother forthwith leaving open the remedy of the parties to move the Family Court for appropriate reliefs. The detenu has after all been with his mother and studying in a school nearby since his parents separated. “A mother is she who can take the place of all others, but whose place no one else can take”- said Cardinal Mermillod. Any investigation by the police in the complaint filed by the mother of the detenu Wpcr42/18 & wpc4068/18 -: 9 :- cannot be termed as harassment by police either. The police was compelled to trace the detenu and question his paternal grandparents on account of the complaint received. The swift action by the police cannot be scuttled by resort to a writ petition alleging harassment at their hands. We have no hesitation to hold that the writ petition alleging harassment by the police is a misuse of the writ jurisdiction of this Court. The detenu shall forthwith be handed over to his mother to have custody subject to orders of the Family Court. WP(Crl.) No. 42/2018 is allowed and WP(C) No. 4068/2018 is dismissed with costs. Sd/- V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/120218