Anshad Kunjumon v. District Police Chief, Office of the District Police Chief, Kollam; Assistant Commissioner of Police, Karunagappally; Inspector of Police, Karunagappally Police Station; Binja Basheer; Sajith Suresh

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** ## **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **WP(Crl.).No.352 OF 2019** ## **PETITIONER/S:** **ANSHAD KUNJUMON, AGED 36 YEARS, S/O.KUNJUMON, A.S.MANZIL, PERIGALA VILLAGE, MAVELIKARA TALUK, OLAKETTIYAMBALAM P.O., ALAPPUZHA-690 510.** **BY ADV. SRI.P.B.SAHASRANAMAN** ## **RESPONDENTS:** **1 THE DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM-691 001. 2 THE ASSISTANT COMMISSIONER OF POLICE, KARUNAGAPPALLY, KOLLAM-690 518.** - **3 THE INSPECTOR OF POLICE, KARUNAGAPPALY POLICE STATION, KOLLAM-690 518.** **4 BINJA BASHEER, AGED 29 YEARS D/O.BASHEER, ASWATHY, ADINADU VILLAGE, ADINADU NORTH P.O., KOLLAM-690 542. 5 SAJITH SURESH, AGED 29 YEARS S/O.SURESH ASWATHY, ADINADU VILLAGE, ADINADU NORTH P.O., KOLLAM-690 542. R4 BY ADV. SRI.M.KIRANLAL R4 BY ADV. SRI.MANU RAMACHANDRAN R4 BY ADV. SRI.R.RAJESH (VARKALA) R4 BY ADV. SRI.T.S.SARATH R4 BY ADV. SHRI.AJAY JAYACHANDRAN OTHER PRESENT: R1 TO R3 BY GP-- K B RAMANAND .** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(Crl.).No.352 OF 2019 2 ## **CR** ## _**JUDGMENT**_ ## **Harilal, J** Whether the custody of a child with one of the parents, in disobedience to the order of the Family Court, granting custody of the child to the other parent, would amount to illegal custody warranting issuance of a writ of habeas corpus? 2. Firstly, this Court, sitting in writ jurisdiction, under Article 226 of the Constitution of India, reminds ourselves that, ordinarily, the dispute on custody of the children between the parents are matters, which must be considered by the Family court, having jurisdiction in this respect and a writ of habeas corpus cannot be issued to handover the custody of the children from one parent to the other. But the Supreme Court recently in _**Tejaswini**_ WP(Crl.).No.352 OF 2019 3 ## _**Gaud and Others v. Shekhar Jagdish Prasad Tewari**_ ## _**and Others**_ [ **2019 (3) KHC 167]** held thus: _18.Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement of the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law._ WP(Crl.).No.352 OF 2019 4 3. Thus, the decision cited above persuaded us to consider the aforesaid question. In the instant case, the petitioner herein has rightly approached the family court and the family court passed an order granting custody of the child forthwith to the petitioner. But the wife, who eloped with another person, wilfully refused to obey the order of the court and the family court subsequently issued another order directing the police concerned to execute the order. But, despite the long lapse of time, the police could not trace out the detenue or execute the order of the Family court. 4. Indisputably, any act or omission in contravention to or disobedience to the order of the court, is an illegal act or omission, as the case may be. Therefore, we are of the view that, where there is WP(Crl.).No.352 OF 2019 5 an order of the Family court granting custody of the child to one of the parents and directing the other parent to handover the custody of the child to the former forthwith and there is a willful disobedience of the said order and police fails to execute the order, such custody of the child with the parent against whom the order was passed, would amount to illegal custody, warranting issuance of a writ of habeas corpus. It follows that unless the family court exercised its jurisdiction and passed orders and police failed to execute the order, writ jurisdiction cannot be invoked to get custody of the child by one parent from the other parent, as mere custody with one parent alone is not an illegal custody, warranting issuance of habeas corpus. WP(Crl.).No.352 OF 2019 6 5. We have examined the facts involved in the present case, in view of the proposition, which we have laid above. The petitioner and the 4[th] respondent are husband and wife and the alleged detenue is the child, now aged 5 years, born to them in the said wedlock. The 5[th] respondent is the person with whom his wife/the 4[th] respondent is living together, after eloping from the society of the petitioner. This writ petition has been filed on the allegation that the detenue/child is under the unlawful detention of respondents 4 and 5, in total disobedience to Ext.P3 order, granting custody of the detenue/child to the petitioner and directing respondents 4 and 5 to hand over the custody to the petitioner, passed by the Family Court, but 3[rd] respondent has not taken any effective steps to WP(Crl.).No.352 OF 2019 7 liberate the detenue/child from the illegal custody of respondents 4 and 5, despite Ext.P4 order directing him to execute Ext.P3 order. According to the petitioner, when the 4[th] respondent eloped with the 5[th] respondent, she has taken the detenue/child also. Thereafter, the child is under the unlawful custody of the 4[th] respondent, in denial of the right of access to the petitioner. Aggrieved by the said unlawful custody of the detenue/child with 4[th] and 5[th] respondents, the petitioner had preferred O.P(G&W) No.773/2019 before the Family Court, Chavara and the family court, by Ext.P3 order dated 01.10.2019, passed in I.A.No.1851/2019, granted interim custody of the detenue/child to him. But 4[th] & 5[th] respondents refused to grant custody of the child to him and WP(Crl.).No.352 OF 2019 8 thereby wilfully disobeyed the order of the court. Subsequently, in consideration of the safety and welfare of the detenue/child, the family court passed Ext.P4 order on 03.10.2019 directing the 3[rd] respondent to execute Ext.P3 order dated 01.10.2019. But the 3[rd] respondent has not taken any effective steps to execute Ext.P3 order, though the detenue/child was available in the house of respondents 4 and 5. Hence, he is left with no remedy, other than approaching this Court, to liberate the detenue from the unlawful custody of respondents 4 and 5, by the invocation of writ jurisdiction, under Article 226 of the Constitution of India. 6. In compliance with the interim order of this Court, the detenue/child has been produced before this WP(Crl.).No.352 OF 2019 **==> picture [6 x 6] intentionally omitted <==** Court by respondents 4 and 5 and we have interacted with the 4[th] respondent. The 4[th] respondent admitted that she has eloped with the 5[th] respondent along with the child on 22.08.2019 and she was traced out and produced before the Judicial First Class Magistrate Court, Mavelikkara by the Police, on complaint filed by her father and she was released after recording her statement. Further she admitted that in her statement before the Magistrate court she has expressed her desire to go and live along with the 5[th] respondent and now she is living together with the 5[th] respondent and the detenue/child. There is no explanation as to why she could not obey the order of the court. Therefore, we find that there is willful disobedience to the order of the family court from the part of WP(Crl.).No.352 OF 2019 10 respondents 4 and 5. 7. The learned counsel for the 4[th] respondent submits that the impugned order was passed in execution of an _ex parte_ order and the 4[th] respondent had preferred an application as I.A.No.1942/2019 along with I.A.No.1943/2019, to advance the case. But the family court has dismissed I.A.No.1943/2019 on 14.10.2019. 8. We find that in the matter of execution, _ex parte_ decree/order does not make any difference, so long as the same is in force. Having regard to the pendency of I.A.No.1942/2019, the Family court, Chavara is directed to consider and pass orders on I.A.No.1942/2019 at the earliest, at any rate, within a period of three weeks from today. WP(Crl.).No.352 OF 2019 11 9. If the 4[th] respondent is aggrieved by the order granting interim custody of the detenue to the petitioner, she is also at liberty to file an objection and family court will consider that objection also. However, the family court is at liberty to pass further orders, determining the interim custody of the child, considering the welfare of the child, till the disposal of the O.P. We make it clear that the child shall be in the custody of the petitioner till the passing of any further orders determining the interim custody of the child, by the family court. 10. The 3[rd] respondent is further directed to provide necessary police aid to the petitioner, for protecting the interim custody of the minor child, with the petitioner, in case of any threat or disturbance from the part of respondents 4 and 5. WP(Crl.).No.352 OF 2019 12 The W.P.(Crl) is allowed. Registry is directed to FAX the judgment to the Family Court, Chavara, forthwith. **Sd/- K.HARILAL, JUDGE** **sd/- ANNIE JOHN, JUDGE** AMV/16/10/2019 WP(Crl.).No.352 OF 2019 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOSTAT COPY OF THE MEMORANDUM OF OP(G&W) NO.773 OF 2019 FILED BEFORE THE FAMILY COURT, CHAVARA.** **EXHIBIT P2** **TRUE PHOTOSTAT COPY OF IA NO.1851 OF 2019 FILED IN OP(G&W) NO.773 OF 2019 FILED BEFORE THE FAMILY COURT, CHAVARA.** **EXHIBIT P3** **TRUE PHOTOSTAT COPY OF THE ORDER IN IA NO.1851 OF 2019 IN OP(G&W) NO.773 OF 2019 FILED BEFORE THE FAMILY COURT, CHAVARA DATED 01.10.2019.** **EXHIBIT P4** **TRUE PHOTOSTAT COPY OF THE DIRECTION GIVEN BY THE FAMILY COURT, CHAVARA DATED 01.10.2019 TO THE 3RD RESPONDENT.** **EXHIBIT P5** **TRUE PHOTOSTAT COPY OF THE COMPLAINT MADE BY THE PETITIONER BEFORE THE RESPONDENTS 1 AND 2 DATE NIL.** **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**