M.J. Indu v. State of Kerala & Others (WP(Crl) No.455/2019 & OP (FC) No.13/2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** **WP(Crl.).No.455 OF 2019** ## **PETITIONER/S:** **M.J.INDU, AGED 32 YEARS D/O.JAYAN, MUTHEDATH HOUSE, MANGATTUKARA P.O., KANDASSAMKADAVU VIA., THRISSUR - 680 641.** **BY ADVS. SRI.S.SANTHOSH KUMAR SMT.ANJANA.S.SANTHOSH** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR GENERAL OF POLICE AND STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010.** - **3 THE DISTRICT POLICE CHIEF, THRISSUR - 680 009.** - **4 THE STATION HOUSE OFFICER, VARANTHARAPPALLY POLICE STATION, THRISSUR - 680 303.** - **5 VINISHA SUNIL KUMAR, D/O.VISHWAMBARAN N.K., NARAYANATHOTTATHIL HOUSE, MANAKULANGARA P.O., THRISSUR - 680 684. (ALSO AT AKKARAKKARAN HOUSE, MANNAMPETTA P.O., MUKUNDA PURAM THALUK, THRISSUR - 680 315).** - **6 MOHANAN, AGED AROUND 70 YEARS, AKKARAKKARAN HOUSE, MANNAMPETTA P.O., MUKUNDA PURAM TALUK, THRISSUR - 680 315.** **2** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **7 SANTHA MOHANAN, AGED 66 YEARS, W/O.MOHANAN, AKKARAKKARAN HOUSE, MANNAMPETTA P.O., MUKUNDA PURAM THALUK, THRISSUR - 680 315.** **R5-7 BY ADV. SRI.REJI GEORGE R5-7 BY ADV. SRI.N.RAJENDRAN** R1 to R4 – SRI.K.B.RAMANAND, PUBLIC PROSECUTOR **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 23-01-2020, ALONG WITH OP (FC).13/2020, THE COURT ON 04-02-2020 DELIVERED THE FOLLOWING:** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** **OP (FC).No.13 OF 2020** **AGAINST THE ORDER IN I.A.NO.6338/2019 IN OP 2282/2018 DATED 13-12-2019 OF FAMILY COURT,THRISSUR** ## **PETITIONER/RESPONDENT/PETITIONER:** **SUDHEERKUMAR, AGED 41 S/O.MOHANAN, AKKARAKKARAN HOUSE, MANNAMPETTA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN- 680315, PRESENT ADDRESS FLAT NO.302, GOLF LINKS (NEAR) LODHA WORLD SCHOOL, PALAWA, DOMBIVILLY (EAST) KALYAN TALUK, THANE MANPADI, MUMBAI, MAHARASHTRA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.OSBEN MANUEL GOMEZ, AGED 37 YEARS, S/O.RALPH WILLIAM GOMEZ, EMMANUAL VILLA, VADUTHALA POST, PIN- 682023. BY ADVS. SRI.REJI GEORGE SRI.N.RAJENDRAN SRI.A.M.NASEER SRI.BINOY DAVIS SRI.RAMU RAJENDRAN SRI.R.P.SREENIVASAN** ## **RESPONDENT/PETITIONER/RESPONDENT:** **M.J.INDU AGED 30 YEARS D/O.JAYAN, MOOTHEDATH HOUES, MANGATTUKKARA P.O., KANDASSAMKADAVU VIA, THRISSUR TALUK AND DISTRICT, PIN- 680641.** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **4** **R1 BY ADV. SRI.S.SANTHOSH KUMAR R1 BY ADV. SMT.P.LISSY JOSE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23-01-2020, ALONG WITH WP(Crl.).455/2019, THE COURT ON 04-02-2020 DELIVERED THE FOLLOWING:** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **5** ## **JUDGMENT** ## **Dias,J.** The mother of the three minor children has filed W.P (Crl) 408/2019 seeking a writ of habeas corpus on the assertion that her children are illegally detained by the respondents 5 to 7. 2. It is the case of the petitioner that, her marriage was solemnised with Sri.Sudheer Kumar on 21.11.2007. In their wedlock, three children named Gokul Krishna, Laxmi Krishna and Kedar Krishna were born on 6.2.2009, 28.10.2010 and 8.10.2014, respectively. 3. The petitioner has averred that her marital relationship with Sri.Sudheer Kumar (for brevity hereinafter referred to as 'husband') got strained. He brutally assaulted her and caused **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **6** grave injuries, and she suffered an hemorrhage. Crime No.516/2016 was registered by the Nerul Police Station against her husband for offences under Sections 307 and 498A of the Indian Penal Code. 4. After the F.I.R was registered, her husband filed Miscellaneous Application No.105/2017 before the District Court, Thane, seeking the permanent custody of the minor children. He also instituted O.P No.411/2017 seeking a decree for divorce. 5. As ordered by the Hon'ble Supreme Court in Transfer Petition(C)Nos.1350/2017 and 1824/2017, the above cases were transferred to the Family Court, Thrissur. The petition filed for permanent custody of the children was renumbered as O.P.2282/2018. **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **7** 6. According to the petitioner, during the interregnum period, the petitioner's husband and his brother Sri.Sunil Kumar, the husband of the 5[th] respondent, siphoned crores of rupees and absconded. Look out notices have been issued against them. Her husband, his brother and the children are missing. 7. The Family Court by Ext.P3 order dated 4.11.2019 directed the Station House Officer of the Thrissur East Police Station, to cause production of the children. Subsequently, by Ext.P4 order, the Family Court directed the Commissioner of Police- the 3[rd] respondent to produce the children. 8. As the children were not traceable, and that the petitioner learnt that they are under the illegal custody of the respondents 5 to 8, she **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **8** filed W.P (Crl) 408/2019 before this Court seeking a writ of habeas corpus, to direct the respondents 1 to 7 to produce the children before this Court. On 25.11.2019, this Court directed the 3[rd] respondent to constitute a special investigation team and trace out the children. 9. On 6.12.2019, the respondents 5 to 7 appeared through counsel, who submitted that the respondents 5 to 7 are ready to produce the children before the Family Court on 9.12.2019. This Court by Ext.P5 interim order directed the respondents 5 to 7 to produce the children before the Family Court, as undertaken by them. Accordingly, the children were produced before the Family Court on 9.12.2019. Consequentially, by Ext.P6 judgment, W.P (Crl) **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **9** 408/2019 was disposed of. 10. In Ext.P6 judgment, this Court directed the Family Court to consider I.A No.6338/2019 filed by the petitioner, seeking interim custody of the children, and pass appropriate orders on the application. 11. The petitioner has further averred that subsequent to Ext.P6 judgment, the respondents 5 to 7 violated their undertaking and wilfully refused to produce the children on 13.12.2019 as directed by the Family. The Family Court by Ext.P7 has ordered the interim custody of the children to be handed over the the petitioner. The petitioner has also been directed to admit the children in a nearby school at Thrissur. The petitioner has secured admission for the children in a CBSE School named Sree Sai Vidya **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **10** Peedhom at Thrissur, as evidenced by Ext.P8 confirmation letter. 12. The petitioner has further averred that on 12.12.2019, her husband was arrested by the Maharashtra Police and he is now in judicial custody. The Family Court by Ext.P9 letter has directed the 4[th] respondent to comply with Ext.P7 order . 13. According to the petitioner, despite Ext.P6 judgment passed by this Court and Ext.P7 order passed by the Family Court, the respondents 5 to 7 have illegally and contumaciously detained the children. Therefore, the petitioner has prayed that a writ of habeas corpus be issued to cause production of the children illegally detained by the respondents 5 to 7. **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **11** 14. This Court by its interim order dated 31.12.2019, directed the respondents 2 and 3 to see that the children are produced before this Court on 6.1.2020. 15. On 6.1.2020, the respondents 5 to 7 entered appearance through a learned counsel, who submitted that the children are in the custody of the respondents 5 to 7 at Thrissur, and that they would be produced before this Court on 15.1.2020. 16. As undertaken, the respondents 5 to 7 produced the children before this Court on 15.1.2020. We interacted with the children at length. They stated that they were in the custody of the respondents 5 to 7 in Mumbai and thereafter in Thrissur. They have not seen their father for two months, and they have seen **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **12** their mother only in court and further that their parents are separated for two years. On prima facie finding that the children are in the illegal custody of the respondents 5 to 7, in violation of the directions contained in Ext.P6 judgment of this Court and Ext.P7 order of the Family Court, this Court directed the children to be produced before the Family Court on 16.1.2020 to implement Ext.P7 order. 17. When the writ petition was taken up for hearing, the learned counsel for the husband, the father of the children, submitted that the husband has filed O.P (FC) No.13/2020 before this Court aggrieved by Ext.P7 order passed by the Family Court (produced as Ext.P1 in the O.P (FC) 13/2020). The learned counsel prayed that the O.P (FC) may be consolidated and heard **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **13** along with the writ petition. 18. This Court had by its order dated 15.1.2020 observed the respondents 5 to 7 to first comply with Exts.P6 and P7, before the original petition is taken up for consideration. 19. In compliance with the interim order dated 15.1.2020, the children were produced before the Family Court. 20. The Family Court by letter dated 20.1.2020 has intimated this Court that the custody of the children were handed over to the petitioner, and that the case was adjourned for further proceedings. The learned Judge of the Family Court has also reported that he had seen the children with the petitioner in open court, and found the children to be comfortable and pleasant in the company of their mother. **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **14** 21. After receipt of the report from the Family Court, the writ petition and the original petition were consolidated and jointly heard. 22. The case of the husband (petitioner in O.P(FC) 13/2020) is that Ext.P7 order passed by the Family Court in I.A No.6338/2019 in O.P No.2282/2018, granting interim custody of the children to the petitioner, is erroneous and improper. The Family Court has not considered the fact that the petitioner is living in adultery. The children are of tender age and have no acquaintance with their mother for the last two years,and that the entrustment of the custody to the petitioner would be detrimental to their paramount welfare and best interest. The petitioner is unfit to act as a guardian of the children. Hence Ext.P7 order order may be set **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **15** aside. 23. We have heard Sri.S.Santhosh Kumar, the learned counsel for the petitioner in W.P(Crl) 455/2019, the learned Government Pleader who appeared for respondents 1 to 4 and Sri. Reji George, the learned counsel for the petitioner in O.P (FC) 13/2020. 24. The Hon'ble Supreme Court in _Anjali Kapoor v. Baijal [(2009) 7 SCC 322]_ has declared the law that in a battle for the custody of a child, the courts should see what would best serve the welfare and interest of the child, which is the sole and predominant criterion and not the legal rights of the warring parents. 25. In _Nil Ratan Kundu and another v. Abhijit Kundu [(2008) 9 SCC 413]i_ it is held that, court is neither bound by statutes nor by strict **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **16** rules of evidence or nor procedure by precedents, but courts must give due weightage to the child's comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values. 26. It is an undisputed fact that the husband, father of the children, is remanded to judicial custody since 12.12.2019 in connection with criminal cases registered against him by the Maharashtra Police. O.P (FC) No.13/2020 is admittedly filed through his power of attorney holder. The learned counsel submitted that it is because the husband is in judicial custody that the original petition is filed through his power of attorney holder, and that the husband is not in a position to appear before this Court **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **17** and the Family Court. 27. It is also an undisputed fact that the children were not attending school for the last few months. They were leading a nomadic life, by being shuttled between Mumbai and Kerala, to evade the process of court. The children told this Court that they are not attending school, and that they were living with the respondents 5 to 7. 28. The Hon'ble Supreme Court has in _Tejeswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others [AIR 2019 (SC) 2318]_ held that a writ of habeas is corpus maintainable, where it is proved that detention of a minor child by a parent or others was illegal and without any authority of law. 29. Despite this court directing the ## **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **18** respondents 5 to 7 to produce the children before the Family Court by its order in W.P (Crl) 408/2019, the respondents 5 to 7 flouted the direction. A Special Investigation Team had to be constituted, as per the direction of this Court, to trace out the children. It was after defying the judgments and orders of this Court and Family Court, for a long time that the children were finally produced before the Family Court. 30. The Family Court, taking into consideration that the petitioner is the mother and natural guardian of the three children, who are only 11, 10 and 6 years of age, passed the the impugned Ext.P7 order finding that the children's paramount welfare and best interest will be secured, if they handed over to the **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **19** petitioner. In light of the above findings, the law that is in vogue and that the childen have been entrusted to the custody of their mother, we close W.P(C)No.455/2019. 31. Now coming to the legality and correctness of Ext.P7 order (Ext.P1 in O.P (FC) 13/2020) we find that the Family Court has elaborately and exhaustively considered the rival contentions in detail, especially the fact that the petitioner is the mother of the children and their father is in judicial custody, and arrived at the conclusion that the petitioner is entitled to have interim custody of the children. We do not find anything irregular, illegal or improper in the impugned order, considering the welfare of the children. 32. We abjure ourselves from expressing **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **20** anything further on the entitlement of parents in the case in having custody and visitation rights of the children, as we are conscious that Ext.P7 is only an interim order granting custody of the children to the petitioner, and that the original petition will have to be finally considered on merits by the Family Court. Thus, we are of the considered opinion that at present it is the petitioner who is the best suitable person to have custody of the minor children, being their mother and that the children's best interest is secured in her hands. The children have been admitted in a school at Thrissur and that the Family Court has found them to be happy with their mother. Therefore, we feel that the present arrangement can continue until the order is modified by the **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **21** Family Court, in case of any change of circumstances. 33. We do not find any illegality, impropriety or irregularity in the Ext.P7 order passed by the Family Court warranting invocation of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Hence, O.P (FC)No.13/2020 is dismissed, confirming Ext.P7 order passed by the Family Court. ## In the result: (i). W.P (Crl) No.455/2019 is closed. (ii) O.P(FC) 13/2020 is dismissed confirming the common order in I.A Nos.4990/2019 and 6338/2019 in O.P. No.2282/2018. **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **22** (iii) In the facts of the cases, the parties are directed to bear their respective costs. **Sd/- K.HARILAL, JUDGE** ma/29/1/2020 **Sd/- C.S.DIAS, JUDGE** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** ## **23** ## **APPENDIX OF WP(Crl.) 455/2019** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE FIR NO.0516 DATED 23/12/2016 OF NERUL POLICE STATION, NAVI MUMBAI.** - **EXHIBIT P2 TRUE COPY OF NEWS ITEM APPEARED IN MALAYALA MANORAMA DAILY DATED 06/11/2019.** - **EXHIBIT P2 A TRUE COPY OF NEWS ITEM APPEARED IN DESHABIMANI DAILY DATED 08/11/2019.** - **EXHIBIT P3 TRUE COPY OF ORDER DATED 04/11/2019 OF FAMILY COURT, THRISSUR IN I.A.NO.4990/2019 IN GOP 2282/2018.** - **EXHIBIT P4 TRUE COPY OF ORDER DATED 12/11/2019 OF FAMILY COURT, THRISSUR IN I.A.NO.4990/2019 IN GOP 2282/2018.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06/12/2019 IN W.P.(CRL) NO.408/2019.** - **EXHIBIT P6 TRUE COPY OF JUDGMENT DATED 12/12/2019 IN W.P.(CRL) NO.408/2019.** - **EXHIBIT P7 TRUE COPY OF COMMON ORDER DATED 13/12/2019 OF FAMILY COURT, THRISSUR IN I.A.NO.6338/2019 IN GOP 2282/2018.** - **EXHIBIT P8 TRUE COPY OF THE CONFIRMATION LETTER DATED 16/12/2019 ISSUED BY THE PRINCIPAL OF SREE SAI VIDYA PEEDHOM.** **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 21/12/2019 OF THE JUDGE, FAMILY COURT, THRISSUR TO THE 4TH RESPONDENT.** **WP(Crl.).No.455/2019 & O.P(FC)13/2020** **24** ## **APPENDIX OF OP (FC) 13/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF COMMON ORDER IN I.A.NOS.4990/2019 AND 6338/2019 IN O.P.NO.2282/2018 DATED 13.12.2019 PASSED BY THE FAMILY COURT, THRISSUR.** **EXHIBIT P2** **A TRUE COPY OF THE CALL DETAIL RECORD (CDR) OF THE RESPONDENT'S MOBILE NOS.8301971440 AND 8419900132 OBTAINED FROM THE SERVICE PROVIDER.** **EXHIBIT P3 A TRUE COPY OF THE WHATSAPP STATUS OF MR.RIJINEESH AS SHOWN IN WHATSAPP NO.8281727440.**