Anishakumari v. The Station House Officer, Poovar Police Station; The District Police Chief, Thiruvananthapuram Rural; Abilash V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** **WP(Crl.).No. 321 of 2018** ## **PETITIONER:** **ANISHAKUMARI AGED 29 YEARS** **D/O.KUTTAPPAN, AGED 29 YEARS, RESIDING AT PLAVILA PUTHENVEEDU, KEEZHAROOR VILLAGE,KATTAKADA TALUK, THIRUVANANTHAPURAM-695 125.** **BY ADV. SRI.GEORGE POONTHOTTAM SRI. ALEX.M.SCARIA SMT.SARITHA THOMAS** ## **RESPONDENTS:** **1 THE STATION HOUSE OFFICER, POOVAR POLICE STATION POOVAR POLICE STATION, POOVAR,THIRUVANANTHAPURAM-695 525. 2 THE DISTRICT POLICE CHIEF THIRUVANANTHAPURAM RURAL, PMG, VIKAS BHAVAN P.O.,695 033. 3 ABILASH V. AGED 39 YEARS S/O.MONY, AGED 39 YEARS, KINARUVETTIYA KOTTAKKAKATHU VEDDU, ARUMANOOR, POOVAR P.O.,695 525.** **SR.GOVERNMENT PLEADER SRI.K.B.RAMANAND SRI. M.R. SASITH** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl) No.321/2018 2 ## **JUDGMENT** ## **C.K.Abdul Rehim, J** The mother of a four year old minor child named Gowtham Krishna, is the petitioner herein. The above case is filed seeking for issuance of a writ of habeas corpus for directing production of the said child before this court and to grant such other reliefs, as this court may deem fit and proper on the facts and circumstances of the case. 2. Averments in brief are that, the child Gowtham Krishna (hereinafter referred to as 'the alleged detenue') was born out of the relationship between the petitioner and the 3[rd] respondent. The petitioner approached the Family Court, Nedumangad in O.P (G & W) No.504/2015 seeking for declaration with respect to the guardianship and custody of the alleged detenue. The Family Court allowed the original petition on 09.05.2017 through Ext.P1 judgment. The petitioner was declared as the guardian of the alleged detenue and she was allowed to have permanent custody of the child, until there is any proved change of circumstances. The 3[rd] respondent was W.P.(Crl) No.321/2018 3 permitted to visit the alleged detenue on all Saturdays from 11 a.m to 5 p.m, at the premises of the family court, on paying cost of Rs.1,000/- per month to the petitioner. The petitioner filed E.P.No.97/2017 before the Family Court, Thiruvananthapuram in order to get the decree executed. It is alleged that, the respondent is avoiding appearance in the case before the execution court and is not producing the child before that court. The petitioner had raised allegations that, she is suspectful of the physical condition of the alleged detenue and expressed an apprehension that the 3[rd] respondent may misutilise the alleged detenue for human trafficking, because the 3[rd] respondent is a person having only little botheration for the society and the legal system. It is stated that, despite a complaint lodged by the petitioner, no action was taken by the 1[st] respondent to find out the alleged detenue and to hand over custody to the petitioner. The petitioner alleges that, the 3[rd] respondent may endanger the life of the alleged detenue for meeting his ends. Allegation is that, the 3[rd] respondent is a habitual offender and he is involved in various criminal cases. Under such circumstances the petitioner is seeking the relief as mentioned above. W.P.(Crl) No.321/2018 4 3. When the case came up for admission, we directed the 1[st] respondent to make a verification regarding the whereabouts of the alleged detenue. Government Pleader appearing for respondents 1 and 2 on instructions submitted before this court on 20.08.2018 that, from the enquiry conducted it was revealed that, the alleged detenue is living happily with the 3[rd] respondent in his house at Arumanoor and that the child is now studying in a Nursery School at L.M.S L.P.S, Thiruvananthapuram, which is within the limits of the Poovar police station. It was submitted on behalf of the respondents 1 and 2 that, the 3[rd] respondent is accused in 4 crimes registered at the Poovar police station, which are pending trial before the Judicial First Class Magistrate Court-II, Neyyattinkara. 4. When the above facts were submitted on behalf of the 1[st] respondent, learned counsel appearing for the petitioner raised contention that the 3[rd] respondent is a wanted criminal, against whom non-bailable warrants are pending in various criminal cases and that the statement made by the 1[st] respondent that the alleged detenue is available with the 3[rd] respondent, is not true and correct. Since the 1[st] respondent W.P.(Crl) No.321/2018 5 had also mentioned about the criminal cases pending against the 3[rd] respondent, this court ordered notice to the 3[rd] respondent, directing him to produce the alleged detenue before this court on 31.08.2018. On 31.08.2018 the 3[rd] respondent failed to produce the child in compliance with the direction issued from this court. Therefore we directed the 1[st] respondent to take custody of the alleged detenue and to produce him before this court on today. 5. The alleged detenue is produced before this court on today. The 3[rd] respondent is also present. We permitted the petitioner to have interaction with the alleged detenue for about 2½ hours and the alleged detenue was handed over back to the 3[rd] respondent. 6. Heard Adv.George Poonthottam and Adv.Alex M.Scaria, learned counsel appearing for the petitioner. Contention is that the petitioner is entitled to get custody of the alleged detenue from this court based on Ext.P1 judgment, because the custody of the alleged detenue with the 3[rd] respondent will amount to an illegal custody, which is in violation of the terms of that judgment. It is pointed out that, the 3[rd] respondent is an accused in 4 cases and he is a person W.P.(Crl) No.321/2018 6 absconding atleast in 2 cases; and against whom non-bailable warrant is pending in those cases. According to learned counsel for the petitioner, it is not safe and conducive to permit custody of the alleged detenue with the 3[rd] respondent. It is argued that, in such situation this court exercising jurisdiction under Article 226 of the Constitution of India is at an obligation to take note of the welfare of the child, which should be the paramount consideration. This court is bound to exercise ' _parens patriae'_ jurisdiction in such situation. In support of such contention, reliance was placed on a decision of the Hon'ble Supreme Court in **Syed Saleemuddin v. Dr.Rukhsana and Others [2001(5)** **SCC 247]** . The principle enunciated therein is that, in applications seeking for a writ of habeas corpus for custody of minor children, the principal consideration of the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. 7. In the case at hand, the situation is that, the alleged detenue is in the custody of the 3[rd] respondent since W.P.(Crl) No.321/2018 7 29.03.2015, as found by the family court in Ext.P1 judgment. The petitioner has approached this court with an allegation that the alleged detenue was taken to some unknown place and that the petitioner suspects misutilisation of the alleged detenue for personal gains of the 3[rd] respondent. Of course, there occurred a failure on the part of the 3[rd] respondent in producing the child on the date on which the case was posted for production. But that by itself cannot be considered as a proof for the allegation that the child is not in the custody of the 3[rd] respondent; nor with respect to the allegation of misutilisation of the alleged detenue. On the other hand, report of the 1[st] respondent is that the child is residing with the 3[rd] respondent at Arumanoor and that the child is admitted to a Nursery school situated nearby. 8. Learned senior counsel Sri.K.Ramakumar, appearing for the 3[rd] respondent, pointed out that, challenging Ext.P1 judgment, the 3[rd] respondent had already approached this court in Mat.Appeal No.673/2017. Hence it is pointed out that, the validity of Ext.P1 judgment has to be decided ultimately by this court in the appeal. Our attention is drawn to the contention raised by the 3[rd] respondent before the family court that, the petitioner herein and her father had tortured the 3[rd] respondent W.P.(Crl) No.321/2018 8 based on his caste. The 3[rd] respondent belongs to scheduled caste and the petitioner belongs to an upper caste. Allegation was raised to the effect that, on 25.03.2015 when the 3[rd] respondent reached the house of the petitioner to see the alleged detenue, the petitioner attempted for murdering of the child by immersing him in a bucket of water and the petitioner only dissuaded her from doing that. It was also alleged that, on another occasion the petitioner's father had kicked the child stating that he does not require the child of a scheduled caste. It is pointed out that, based on a complaint lodged by the 3[rd] respondent, the police had registered a case against the petitioner and his father. The family court while evaluating the evidence on record had found that, crime No.350/2015 was registered against the petitioner with respect to the above said incident, for offence punishable under Sections 323 and 308, read with Section 34 I.P.C and under Section 3(1) of the Scheduled Caste and Scheduled Tribe (Prevention of Attrocities) Act. But the family court found that the said case was referred by the police after the investigation. However, it was also found that the 3[rd] respondent had filed a private complaint in protest against the refer report before the Judicial First Class Magistrate W.P.(Crl) No.321/2018 9 Court-I, Neyyattinkara and the said complaint is now pending. 9. It is the contention of the learned senior counsel appearing for the 3[rd] respondent that, the 3[rd] respondent has got very valid contentions in the appeal and the attempt of the petitioner herein is to byepass the regular remedy available to her before the executing court, by raising false and frivulous allegations against the 3[rd] respondent, including the allegation that the alleged detenue is not in the custody of the 3[rd] respondent. 10. Considering the rival contentions, this court is of the opinion that the case at hand is not one filed by one of the parent against other parent with an allegation of forceful abduction of the custody of the minor child. It is true that in certain instances the Hon'ble Supreme Court had held that the high courts exercising jurisdiction under Article 226 can also look into the welfare of the child for passing appropriate orders with respect to custody of minor children. But in the present case, a court having competent jurisdiction had adjudicated the issue and passed a judgment. The beneficiary of the decree passed by the family court, who is the petitioner herein, had already taken appropriate steps before that court to execute the W.P.(Crl) No.321/2018 10 decree. From Ext.P3 it is evident that the execution proceedings before the family court now stands posted for filing objections if any of the 3[rd] respondent. Going by Ext.P3, the case was lastly posted on 03.08.2018. Learned counsel for the petitioner submitted that now the case stands adjourned to 01.10.2018, for evidence. 11. The petitioner, who is the decree holder, ought to have pursued the proceedings before the execution court for getting custody of the minor child, instead of approaching this court. If there occurred any delay in the proceedings before the executing court, the remedy left to her was not by way of this writ petition under Article 226 of the Constitution of India. Having not chosen for the right remedy available to expedite the execution of P1 judgment, she cannot be permitted to byepass such remedy of execution to get custody of the alleged detenue from this court in this case. The allegations raised with respect to parting of custody of the alleged detenue by the 3[rd] respondent or with respect to misuse of the minor was not substantiated. We realise that it is not a case where 3[rd] respondent had taken custody of the minor child forcefully from the petitioner, within any near future. On the other hand, the W.P.(Crl) No.321/2018 11 3[rd] respondent enjoys custody of the alleged detenue since the last more than 2½ years. Therefore, we do not think that this is a fit case where jurisdiction vested on this court under Article 226, which is discretionary in nature, need to be invoked for directing to hand over custody of the alleged detenue to the petitioner. 12. At the same time, this court cannot shut its eyes against the fact that the 3[rd] respondent is now keeping custody of the child in violation of the directions contained in Ext.P1 judgment. We notice that the petitioner had filed the execution petition as early as in August 2017 and the first posting of the case was on 21.10.2017. Despite lapse of more than a year, the family court has not so far disposed of the execution petition, which is causing prejudice to the petitioner. Hence, while declining request of the petitioner to hand over custody of the alleged detenue, we think it appropriate to direct the 3[rd] respondent to appear before the family court, Thiruvananthapuram along with the child on a near date and also to direct the family court to dispose of the execution petition at the earliest. Under the above mentioned circumstances, the above writ W.P.(Crl) No.321/2018 12 petition is disposed of as follows; The 3[rd] respondent is permitted to have custody of the alleged detenue/minor child who is produced before this court on today, subject to the following directions. on the basis of the directions issued. He shall appear before the family court, Thiruvananthapuram along with the alleged detenue (minor child) on 10.09.2018. The Family Court, Thiruvananthapuram shall advance the posting of E.P.No.97/2017 in O.P.(G&W) No.504/2015 to 10.09.2018 and shall take appropriate further steps in the execution petition. Needless to observe that, in case of any failure on the part of the 3[rd] respondent to appear and to produce the child, the family court shall take appropriate steps as provided under law for enforcing Ext.P1 decree, without any further delay. ## **C.K.ABDUL REHIM, JUDGE** ## **R.NARAYANA PISHARADI, JUDGE** jsr W.P.(Crl) No.321/2018 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** P1 : TRUE COPY OF THE JUDGMENT DATED 09.05.2017 IN O.P(G & W) 504/2015. P2 : TRUE COPY OF THE E.P 97 OF 2017 IN O.P(G & W) 504/2015. P3 : THE STATUS REPORT OF EXHIBIT P2 EXECUTION. P4 : TRUE COPY OF THE COMPLAINT DATED 13/06/2018 LODGED BEFORE THE 2ND RESPONDENT. P5 : TRUE COPY OF THE CASE STATUS REPORT WITH RESPECT THE 3RD RESPONDENT. ## **RESPONDENTS' EXHIBITS :** NIL TRUE COPY PS TO JUDGE