Sagar Kareem v. Anima Shaukath Ali

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** **WP(Crl.).No.57 OF 2020** ## **PETITIONER :** **SAGAR KAREEM, AGED 37 YEARS, S/O.K.M.ABDUL KAREEM, KOROTHAYIL HOUSE, PUNNAYURKULAM VILLAGE, CHAVAKKAD TALUK, PUNNAYURKULAM DESOM, THRISSUR-679561, NOW RESIDING AT FLAT NO.503, BADREYA BUILDING, AL MUHAISNAH 4, PB NO.132, NEAR MADINA MALI, MUHAISNATH DUBAI, UAE** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI SRI.M.SREELAKSHMI SMT.R.LEELA** **RESPONDENTS :** - **1 THE DIRECTOR GENERAL OF POLICE, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA-695 010.** - **2 THE COMMISSIONER OF POLICE, ABDUL KALAM MARG, MARINE DRIVE, ERNAKULAM, KERALA - 682 011.** - **3 THE SUPERINTENDENT OF POLICE, DISTRICT POLICE OFFICE, KOZHIKODE-673004.** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 2 **4 ANIMA SHAUKAT ALI, AGED 38 YEARS, D/O.SHAUKAT ALI, PARAMBATH HOUSE, TELLICHERRY KARA, TELLICHERRY TALUK, TELLICHERRY VILLAGE, KANNUR, NOW RESIDING AT R/AT NO.1007, ASPEN BLOCK, PRESTIGE ST.JOHNS WOOD NO.18, MADIWALA WARD NO.66, 2ND CROSS, BENGALURU.** **R1 TO R3 BY SR.PUBLIC PROSECUTION SRI.S.U NAZAR. R4 BY ADV. SRI.BASANT BALAJI.** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26.02.2020, ALONG WITH OP (FC).110/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941** **OP (FC).No.110 OF 2020** **AGAINST THE ORDER IN OP 2407/2018 OF FAMILY COURT,ERNAKULAM** ## **PETITIONER/RESPONDENT :** **ANIMA SHAUKATH ALI, AGED 38 YEARS, D/O. SHAUKAT ALI, PARAMBATH HOUSE, TELLICHERRY VILLAGE , KANNUR NOW RESIDING AT R NO. 1007, ASPEN BLOCK, PRESTIGE ST JOHNS WOODS NO. 18, MADIWALA WARD NO. 66, 2ND CROSS, BENGALURU - 560 029.** ## **BY ADV. SRI.BASANT BALAJI** ## **RESPONDENT/PETITIONER :** **SAGAR KAREEM, AGED 37 YEARS, S/O.K.M. ABDUL KAREEM, KOROTHAYIL, HOUSE, PUNNAYURKULAM VILLAGE, CHAVAKKAD TALUK, PUNNAYURKULAM DESOM, THRISSUR 679 561, REPRESENTED BY K.M. ABDUL KAREE, POWER OF ATTORNEY HOLDER OF THE PETITIONER** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 4 **KOROTHAYIL HOUSE, PUNNAYURKULAM VILLAGE, CHAVAKKAD TALUK, PUNNAYURKULAM DESOM, THRISSUR - 679 561.** **R1 BY ADV. SRI.MILLU DANDAPANI** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26.02.2020, ALONG WITH WP(Crl.)NO.57/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 5 A.HARIPRASAD & N.ANIL KUMAR, J J. -------------------------------------- W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 -------------------------------------- Dated this the 26th day of February, 2020 ## COMMON JUDGMENT ## A.HARIPRASAD, J Petitioner in W.P(Crl.) No.57 of 2020 is the respondent in O.P(F.C) No.110 of 2020. Fourth respondent in W.P(Crl.) No.57 of 2020 is the petitioner in O.P(F.C) No.110 of 2020. She is the former wife of the petitioner. Parties are herein after referred to in the rank in W.P(Crl.) No.57 of 2020 for clarity and Exhibits are also referred to as mentioned in the above writ petition. W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 6 2. Heard the learned Senior counsel for the petitioner and the learned counsel for 4th respondent. Learned Senior Public Prosecutor is also heard. 3. This Court on 19-02-2020 passed the following order in the writ petition : _“_ Admit. The learned Government Pleader takes notice for respondents 1 to 3. Issue notice by special messenger to the fourth respondent. Serve notice in the address in Bangalore. The second respondent is directed to produce the detenue by name Rayhaan Sagar before this Court on 26-02-2020 at 10.15 am.” th 4. Thereafter, O.P(F.C) No.110 of 2020 was filed by the 4 respondent seeking the following reliefs : - “1. That an order be passed setting aside Ext.P5, the order dtd. 16/01/2020 in I.A.131/2020 in O.P.No.2407/2018 W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 7 on the file of the Family Court, Ernakulam 2. That an order be passed setting aside the order Ext.P6 dtd. 21/01/2020 in I.A. No.394/2020 in - O.P.No.2407/2018 on the file of the Family Court, Ernakulam. ” 5. Petitioner admittedly is the father and natural guardian of minor child Rayhaan Sagar, aged 10 years. As mentioned above, the 4 th respondent is the mother of the child. Concededly, the petitioner is a pilot working in Air Arabia and residing in Dubai. 4th respondent was also residing with him in Dubai. Exts.P1 and P2 would show that the 4 th respondent was deported from Dubai and she has a permanent travel ban to that country. Her deportation was in the year 2018. Even before deportation, the 4th respondent had filed two petitions before the Family Court, Thrissur seeking recovery of money and divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939. Both the W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 8 petitions were transferred to Family court, Ernakulam and renumbered as O.P No.2408 of 2018 for divorce and O.P No.2407 of 2018 for recovery of money. Thereafter, 4th respondent filed O.P (G & W) No.1452 of 2018 and M.C No.234 of 2018 before the Family Court, Ernakulam. All the four matters filed by the 4th respondent were settled between the parties by filing a compromise petition, which is produced as Ext.P3. The terms of compromise, subsequently amended as per order on I.A No.7390 of 2019 dated 16-12-2019, read as follows : “3. Both parties agree that the respondent-father shall remain to be the natural guardian of the minor childRayhaan Sagar-now aged 9 years subject to the following conditions:- (i) The petitioner mother is entitled to have interim custody of the minor child for a period of 55 days out of 60 days of the summer W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 9 vacation for the School arising during the period of July and August of every year. (ii) The petitioner mother would also be entitled to have interim custody of the minor child for a period of 20 days out of 23 days arising during the winter vacation commencing from the second half of December in every year. (iii) Deleted as per order dated 16-12-2019 in I.A No.7390 of 2019. (iv) The respondent agrees that he would grant interim custody of the minor child to the parents or sister of the petitioner in Dubai on alternate weekends (two days each) of every month of the year. (v) The travel expenses of the minor child in connection with clause 3(i) and 3(ii) will be borne by the respondent/father and the expenses for travel as per clause (iii) shall be borne by the W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 10 petitioner/mother as and when she gets a foreign employment. Necessary arrangement regarding handing over of the child by the respondent to the petitioner during the aforesaid periods shall be informed between the parties through Email/mobile messages. The respondent agrees that he will produce the child before this Hon'ble Court either in person or through his power holder/father at 10 a.m. on each occasion and the child will be handed over to the petitioner/mother after making necessary endorsements in the register as provided in this Court. The petitioner/mother agrees to produce the child before this Court at 4.30 p.m. on the days on which the minor child is to be returned to the respondent so as to enable him to take back the child to Dubai. The petitioner mother and the respondent father will have access to the child through the mobile phone with 2 W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 11 Sim Cards with data package separately provided by the petitioner/mother and respondent/father to be used - in a mobile phone with dual Sim facility. Both the petitioner and the respondent hereby agree that they will not create any disturbance in the matter of free mingling between the father and the mother by the minor son and G.O.P.No.1452 of 2017 may be disposed of recording the above terms of compromise. 4. The petitioner agrees to withdraw M.C.No.234 of 2018 in lieu of this compromise and she further agrees that she will not make any claim for maintenance either by way of past or by way of future maintenance against the respondent. 5. The petitioner and the respondent hereby withdraw all - their claims against each other regarding money, gold - ornaments and any other articles in view of this compromise. ” 6. Pursuant to the compromise, Ext.P5 decree was passed by the W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 12 Family Court, Ernakulam on 16-12-2019. Endorsement made in the memo of cost to Ext.P5 would show that the decree was drafted on 28-01-2020 and it was published and signed only on 29-01-2020. It is pointed out by the learned Senior counsel for the petitioner and the learned counsel for the 4th respondent that agreement between the parties that Nikah between them, solemnized on 9th August, 2008 of Nadakkavu Juma Mazjid, Kozhikode, to be dissolved by Khula form was not materialized. It is submitted that for that purpose O.P No.2408 of 2018 is kept pending. It is pointed out by the learned Senior counsel for the petitioner that since the 4th respondent did not endorse that she had received the entire amount, the petition filed before the Family Court for return of money is also kept pending. 7. The petitioner would contend that the child was handed over in custody to the 4th respondent on 16-12-2019 as per the agreement and W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 13 the child was to be returned on 06-01-2020, to be taken to Dubai, to the custody of the petitioner. It is an admitted case that the child at that time was studying in a school in Dubai. The petitioner contends that illegally, the 4th respondent retained custody of the minor child against the terms of agreement and he is now under illegal detention. Therefore, the petitioner seeks the following reliefs : - “ i. Issue a writ of Habeas corpus or other appropriate writ or order to direct the 1st respondent to find and produce the detenue named 'Rayhaan' aged 9 ½ years from the illegal custody of the 4th respondent. ii. Pass such other orders as this Hon'ble Court may deems fit in the circumstances of this case. ” 8. Per contra, the 4th respondent would contend that the petitioner had married another lady in the year 2016. The marriage was before the decree of divorce passed by Dubai court, which is Ext.P2. It is an W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 14 admitted fact that the petitioner's present wife has a child in her first marriage, aged 10 years, almost equal to that of the minor child of the parties. It is further stated by both the parties that in the relationship between the petitioner and his present wife, a two year old baby was born. According to the petitioner, himself and his present wife are taking care of minor child Rayhaan Sagar properly and he stayed with them in a happy family atmosphere. 9. Whereas the 4th respondent in her original petition would contend that she could not contact her child for nearly one and a half years before entering into the compromise. She could not go to Dubai because of the permanent ban for travel. According to the learned counsel for the 4 th respondent she was forced to sign the compromise in order to get an opportunity to meet his child at least during three times a year. Later, the compromise was modified at the instance of the petitioner, retaining the W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 15 number of days of visitation rights of the 4th respondent, but reducing the spell of meetings from three to two. It is the case of the 4th respondent that she was prepared to hand over the child to the petitioner on 06-01-2020 as agreed, but the child refused to go to Dubai to join his father. He complained that he was harassed and abused by the father and his step mother. It is also pointed out that sufficient food was not provided to him and therefore he was finding it difficult to stay with his father and family. It is his further complaint that he was differentially treated from other family members and he was subjected to hard labour. 10. Thereafter, 4th respondent approached the Principal Judge, Family court, Bangalore with a petition G & W.C No.8 of 2020. Ext.P10 is the copy of the petition. This petition was filed before the Family Court, Bangalore on 06-01-2020. It is pointed out by the learned counsel for the 4th respondent that events transpired before the Family Court, Ernakulam W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 16 and the compromise are narrated in Ext.P10. However, the decree passed on the basis of the compromise could not be produced because it was drafted only after filing of Ext.P10. 11. The Family Court, Bangalore passed the following order on 08-01-2020 : “ Heard petitioner's counsel on IA No.II. Petitioner brought her son-Rayhaan and I interacted with him. He expressed his desire to be with his mother and told that enough food was not provided to him in Dubai when he was with his father and his father was always abusing him, beating him and pinching him and his step-mother was not looking him as child. Petitioner's counsel files memo with two (2) documents. For orders on I.A No.II . Call on 09.01.2020.” 12. Subsequently, on 14-01-2020, the Family Court, Bangalore W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 17 passed following order : **==> picture [174 x 12] intentionally omitted <==** Petitioner has filed I.A.No.II U/Sec.94 CPC, R/w.Order 39 Rule 1 and 2 R/w.Sec.151 of CPC, praying for injunction restraining respondent from removing the child from the petitioner's custody till disposal of the case. On careful perusal of the petition averments, affidavit annexed to I.A.No.II and documents produced by both parties; prima facie it reveals that the child by name Rayhaan Sager is the S/o. petitioner and respondent and born in Bahrain. Respondent is Pilot and working in Dubai. Petitioner was residing with respondent in Dubai. There are several misunderstandings between petitioner and respondent and ultimately petitioner was deported from Dubai and respondent had obtained travel ban on the child and thus petitioner W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 18 alone came to India on 23-03-2019. It is alleged in the petition that respondent has married another woman in Dubai and she was also divorcee and has the child from her first husband, which is living with respondent and he also got another child from his second wife. Petitioner is also working in India i.e., in Bengaluru. After coming back to India, petitioner had filed several cases before courts of Kerala and compromise entered between parties in the Mediation. The compromise entered between parties in Ernakulam court in 4 cases i.e., O.P.No.2408 of 2018, OP No.2407/2018 and O.P.(G&W) No.1452 of 2018 and M.C.No.234 of 2018. Accordingly, the parties agreed that respondent-father shall remain to be the natural guardian of the minor child and petitioner/mother is entitled to have interim custody during summer and W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 19 winter vacations. Accordingly, the child came to India, stayed with mother from 14-7-2019 to 05-9-2019 in Bengaluru, and then returned to Dubai and again it was brought to India on 17-12-2019 and presently he is with petitioner. In the meanwhile, petitioner by knowing all the tortures suffered by the child and as there was no proper treatment to the child for its speech problem, she admitted the child in Oakridge International School, Bangalore to the 5th grade and now child is going to said school. Hence, apparently there is no problem for its education. When, I interacted with the child, it cried and expressed its desire to be with mother, and told that enough food was not provided to him in Dubai when he was with his father and his father was always abusing him, beating him and pinching him and his stepmother was not looking him as child. W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 20 The desire of the child and welfare of the child is paramount interest while declaring guardianship of the minor child and while deciding its custody. In this regard, petitioner's counsel relied on the following citations: AIR 1973, 2090 SCR (3) 918 Rosy Jacob and Jacob A Chakramakkal, wherein their lordship held that: “The appellant's argument based on estoppel and on the orders made by the court under the Indian Divorcee Act with respect to the custody of the children did not appeal to U/S. All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the court is entitled to vary such orders if such variations is considered to be in the interest of W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 21 the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based, on consent decrees. Cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the court, if the welfare of the wards demands variation." In the Judgment of Hon'ble Supreme Court of India in Civil Appeal No.3500/2008 between Mausami Moitra Ganguli and Jayant Ganguli, their lordship held that; "Having interviewed Satyajeet in our chambers for some time, we find it difficult to accept the stand of the appellant that the father does not have sufficient time or resources to look after the welfare of the child. We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only imede his W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 22 schooling, it may also cause emotional strain and depression on him. It is also significant to note that during the course of hearing on one of the dates, when we had not yet interviewed Satyajeet, we had suggested that it would be better if the child could stay with his mother for some more time. However, upon hearing us, he started crying and whining and, showed reluctance to go with the mother. Watching his reaction, we dropped the proposal." In the above said citations, their lordship held that the custody of minor child is always temporary in nature and could be varied while protecting the interest of child and further held that if the child is of in the age of undersanding, then desire of child is to be taken into consideration while deciding the custody of the child. Relying upon the above said citations and W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 23 considering the peculiar circumstances of the case and the compromise entered between parties in Ernakulam court is not yet finalized and it is still pending for consideration and as already, petitioner admitted the child to school in Bengaluru and as respondent is again married and living with his second wife, and as child is inclined to stay in Bengaluru and disinclined to go to Dubai and stay with his father, this court holds that granting exparte interim order is required. If notice of I.A.No.II is issued to respondent, that would leads to multiplicity of proceedings and may hamper the development of child. Hence, this court proceeds to pass the following:- ## ORDER Exparte T.I. order is granted in favour of petitioner against respondent. Respondent is hereby restrained from removing the child Rayhaan aged about 10 years from the W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 24 custody of petitioner till next date of hearing. Petitioner shall comply with Order 39 Rule 3(a) CPC. Issue notice on I.A.No.2, T.I.warrant to respondent through court and RPAD if requisite PF and copies furnished within three working days. If petitioner failed to comply with this order, then this order of T.I. Automatically stands cancelled. Call on 14-02-2020.” 13. It is the submitted by the learned counsel for the 4th respondent that on 14-02-2020 the petitioner entered appearance before the Family Court, Bangalore. Per contra, learned counsel for the petitioner would contend that since the regular court was not sitting, they could not submit all the facts before the court. The matter was posted to 24-02-2020 for producing the child and filing objection by the petitioner. It is the case of the 4th respondent that before 24-02-2020, the petitioner approached this Court on 18-02-2020 with W.P(Crl.) No.57 of 2020 seeking W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 25 production of the child, who is said to be under an illegal custody of the 4 th respondent. 14. What is challenged in O.P (F.C) No.110 of 2020 is Exts.P5 and P6 orders passed by the Family Court, Ernakulam in O,P No.2407 of 2018 on two different interlocutory applications. On 16-01-2020, in I.A No.131 of 2020 in the above O.P, the following order was passed : “ Issue production warrant through Superintendent of Police, Kozhikode to get the child and hand over to the power of attorney holder of the petitioner in view of the compromise between parties or to produce before court to 1.2.2020. ” 14. On 21-01-2020, the Family Court, Ernakulam on I.A No. 394 of 2020 in the aforementioned O.P, passed the following order : “ Custody of the child could not be secured as per order in I.A 131/2020. In the light of the compromise W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 26 decree and documents not produced. DGO, Thiruvananthapuram directed to execute the warrant issued by the court and produce child from where he is now kept. Issue warrant by hand 10.2.2020.” 15. It is seen from Ext.P8 that the Family Court, Ernakulam had passed an order on 09-01-2020 with a direction to produce the child before the court and the Commissioner of Police, Ernakulam was directed to bring the minor child on 14-01-2020. It is pointed out by the learned counsel for the petitioner that this order has not been challenged. 16. According to the 4th respondent (petitioner in O.P(F.C) No.110 of 2020), these orders were passed behind her back. It is also contended that these orders were passed in a matter pending before the Family Court, not pertaining to the custody of the child, but relating to return of gold ornaments. Challenge against Exts.P5 and P6 orders are mainly two fold : Firstly, the Family Court should not have passed Exts.P5 and P6 orders on a W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 27 petition filed for return of ornaments. Secondly, without affording an opportunity to the 4th respondent, these orders were passed behind her back and she was unable to place all the true facts before the court relating to enforcement of the compromise decree. 17. Our attention has been drawn to Ext.P13 order passed by the Family Court on I.A No.661 of 2020 in the aforementioned O.P in the following lines : “ In the light of the earlier order in I.A 131/2020 and 394/2020, the petition is only to be allowed. The respondent has violate the terms of a lawful compromise decree in this case. Hence issue production warrant as prayed. Issue order 23.3.2020.” 18. Learned counsel for the 4th respondent submitted that when his client applied for a copy of the order on I.A No.131 of 2020, the order dated 16-01-2020 alone was given and no order dated 09-01-2020 was W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 28 given. 19. First question to be answered is whether a writ petition in the nature of habeas corpus can be maintained by one of the former spouses seeking production of the child from custody of the other spouse. Learned Senior counsel placed reliance on Marggarate Maria v. Dr.Chacko) 1969 KLT 174 (F.B) to urge a proposition that a parent, guardian or other person who is legally entitled to the custody of a child can regain that custody, when wrongfully deprived of it, by means of a writ of habeas corpus. In paragraph 14, the following proposition of law is laid down : “ The father is the legal and the natural guardian. And it is arguable that even when the children are in the control of the mother, the legal custody continues with the father and that if the father takes the children from the mother his custody will not be illegal as he has got legal authority for the custody of the children. W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 29 This certainly will not apply in all cases and in all circumstances. Whether the rule will apply in a case where there was a solemn agreement between the father and the mother that the children should be with the mother is doubtful. Authority is not wanting that in such cases a unilateral breach of that agreement by the father or the mother will not be countenanced by Courts. Whatever that be, if such an agreement is accepted by a court of competent jurisdiction and embodied in an order of that Court, there is no doubt that that order can neither be ignored nor flouted with impunity by one of the spouses. The removal of the children by the father against the terms of the order of the German Court and that in a clandestine manner is illegal. ” 20. An unreported decision by the Supreme Court in Yashita Sahu v. State of Rajasthan and others (Criminal Appeal No.127 of 2020)(Special W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 30 Leave Petition (Crl.) No.7390 of 2019) (Judgment dated 20-01-2020), is brought to our notice wherein the apex court held thus : “ 9. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M.Dinshaw & Ors. ((1987) 1 SCC 42), Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. ((2017) 8 SCC 454) and Lahari Sakhamuri v. Sobhan Kodali ((2019) 7 SCC 311) among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellant-wife that the writ petition before the High Court of Rajasthan was not maintainable. ” W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 31 But it is amply clear from a long line of decisions that what is to be considered is welfare of the child. 21. Before hearing the learned counsel on both sides, we interacted with the child yesterday during the lunch recess and today morning (26-02-2020) before the start of regular sitting. On both the occasions, minor child Rayhaan Sagar, 10 years, told us that he was not fairly treated in Dubai by his father and step mother and he is very much reluctant to go to Dubai. He feels comfortable with his mother. He also pointed out that when he is admitted to a British school in Dubai, where the method of teaching is said to be different, he found difficulties. It is his complaint that there is nobody to help him in studies. He also complained of physical harassment meted out by his father and family members. On both the occasions, the child repeated the same versions despite we could see the child moving freely with his father in the court room. W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 32 22. Learned Senior counsel pointed out that the child's versions cannot be taken for its face value for the reason that his mother could have influenced his mind and he has been tutored to insinuate his father. Even if we find a possibility for that, we cannot completely ignore the version of the child since he repeatedly informed us about his unwillingness to go with his father to Dubai. 23. After the interactions with the child, we are of the view that he cannot be said to be under illegal detention. It is the case of the 4 th respondent as well as the minor child that he has been attending a public school in Bangalore for the last two weeks. Child says that he is comfortable in the present school atmosphere. But, at the same time, we have to consider the contention raised by the petitioner that after spending a huge amount, approximately Rs.7 Lakhs, the child was admitted to a British School in Dubai and his interest will be best served if he is allowed W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 33 to complete his studies in the said school. 24. Having regard to the entire facts and circumstances placed before us and after hearing the learned counsel on both sides, we are of the view that the prayer in the writ petition cannot be allowed especially when the child, who is aged about 10 years and capable of giving rational answers expresses reluctance to go over to Dubai to reside with his father and his present wife. At the same time, facts now urged before us are to be proved before a competent civil court to get any modification to the decree based on a compromise. In a writ petition of this nature, we are unable to decide vexed facts. We find no reason to allow the prayer in the writ petition for the simple reason that we cannot find any reason to qualify stay of the child with his mother under an illegal detention or custody. However, it may be true that she has flouted the terms in the compromise which culminated in a decree. We do not find the petitioner without any W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 34 remedy. He can seek appropriate reliefs from the Family court, Ernakulam to enforce the compromise decree. We are of the view that the 4 th respondent cannot disobey the terms of the decree. In this context, we have to consider the submission by the learned counsel for the 4th respondent that subsequent changes will make her entitled to seek a modification in the decree. It is true that a decree passed for custody can be modified if sufficient reasons are shown so as to think that welfare of the child will be adversely affected by the original decree. Unless that is established no court shall normally interfere with the decree passed for custody, especially when that is a consent decree passed on the basis of a compromise petition. 25. We are also fortified in our view, since rightly or wrongly, the Family Court, Bangalore has passed a prohibitory order against the petitioner from taking custody of the child. Order passed by a competent court cannot be ignored. This legal proposition is well founded. Petitioner's W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 35 remedy is to approach the Family court, Bangalore for modification by convincing the court that the order happened to be passed on wrong premises or there was suppression of material facts by the 4th respondent. 26. When enquired with the learned Senior counsel for the petitioner, we understand that the petitioner will be available in his native place for two weeks. The request of the petitioner to have company of his child during his stay in his native place is reasonable and we find no reason to disallow his request. Although the submission by the 4th respondent that child's academic days will be lost during these period is also a matter to be reckoned with, we find that he was admitted to the school only recently and no serious prejudice will be caused to him for losing a couple of academic days. Reckoning all these aspects, We dispose of the writ petition and the original petition with the following directions : W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 36 1. The petitioner shall take custody of the child and keep him in his family house at Korothayil House, Punnayurkulam Village, Chavakkad Taluk, Thrissur for a period of 15 days from tomorrow (27-02-2020). The 4th respondent shall bring the child before this Court at 10.15 am tomorrow and he shall be handed over to the petitioner from this Court. After 15 days, the petitioner shall hand over the child to the 4th respondent at Family Court, Ernakulam. It is made clear that if the proceedings before the Family Court, Ernakulam could be concluded within the period of 15 days, then the right to custody of the child will be dependant on the outcome of the decision taken by the Family court. 2. The petitioner shall surrender passport of minor child Rayaan, aged 10 years, tomorrow (27-02-2020) itself before taking custody of the child. 3. Challenges against Exts.P5 and P6 are upheld and the said W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 37 orders are set aside. 4. The Family Court shall consider the application for modification of the decree, if any filed on or before 02-03-2020. Similarly, the Family court shall consider enforcement of the compromise decree as it stands, if any petition is filed on or before 02-03-2020. 5. The Family court shall make earnest endeavour to dispose of the matter within a period of three weeks from today. 6. Both parties shall have right to contact the child over phone during the period of 15 days. Child shall be permitted to contact the 4 th respondent over phone in the number submitted before this Court today (25-02-2020) in the form of an affidavit. Petitioner furnishes his local number as 9746297548 and the 4th respondent is free to contact the child in this number. 7. The Family court, Ernakulam shall consider the applications, if W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 38 any filed as above on merits and pass appropriate orders in accordance with law untrammelled by any of the observations in this judgment. A. HARIPRASAD, JUDGE. N.ANIL KUMAR, JUDGE amk W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 39 ## **APPENDIX OF WP(Crl.) 57/2020** ## **PETITIONER'S EXHIBITS :** ## **EXHIBIT P1** **THE TRUE COPY OF THE CERTIFICATE AND THE TRANSLATED VERSION OF THE CERTIFICATE ISSUED BY THE PUBLIC PROSECUTOR, GOVERNMENT OF DUBAI DATED 18.02.2018** **EXHIBIT P2 TRUE COPY OF THE TRANSLATED VERSION OF THE JUDGMENT DATED 10.05.2018 IN CASE NO.16/2017 BEFORE THE DUABI COURT HAS BEEN GIVEN IN FAVOUR OF THE PETITIONER** - **EXHIBIT P3 THE TRUE COPY OF THE COMPROMISE PETITION IA NO.2593/2019 IN OP NO.2408/2018 AND OP NO.2407/2018 AND OP (G AND W) NO.1452/2018 AND M.C NO.234/2018** **EXHIBIT P4 THE TRUE COPY OF THE IA NO.7390/2019 IN IA NO.2593/2019 IN GOP NO.1452/2018** **EXHIBIT P5 THE TRUE COPY OF THE DECREE ALONG WITH THE COMPROMISE** **EXHIBIT P6 THE TRUE COPY OF THE IA NO.131/2020 IN OP NO.2407/2018 FILED ON 07.01.2020** **EXHIBIT P7 THE TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR RESPONDENT** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 40 **EXHIBIT P8** **THE TRUE COPY OF THE PRODUCTION WARRANT ISSUED BY THE FAMILY COURT, ERNAKULAM** **EXHIBIT P9** **THE TRUE COPY OF THE ORDER DATED 16.01.2020 IN IA NO.131/2020 IN P NO.2407/2018 ISSUED BY THE FAMILY COURT, ERNAKULAM** - **EXHIBIT P10** - **THE TRUE COPY OF THE GUARDIANS AND WARDS CASE NO.8/200 ALONG WITH AN AFFIDAVIT FILED BY THE RESPONDENT HEREIN** - **EXHIBIT P11** - **THE TRUE COPY OF THE IA NO.384/2020 FILED BY THE PETITIONER** - **EXHIBIT P12** - **THE TRUE COPY OF THE ORDER IN IA NO.394/2010 IN OP NO.2407/2018 DATED 21.01.2020 ISSUED BY THE FAMILY COURT, ERNAKULAM** - **EXHIBIT P13** - **THE TRUE COPY OF THE ORDER IN IA NO.661/2020 IN OP NO.2407/2018 DATED 01.02.2019.** **RESPONDENTS' EXHIBITS** **: NIL.** W.P (Crl.) No.57 of 2020 & O.P (F.C) No.110 of 2020 41 ## **APPENDIX OF OP (FC) 110/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMPROMISE PETITION FIELD BY THE PETITIONER AS WELL AS THE RESPONDENT DATED 04/05/2019.** - **EXHIBIT P2** **TRUE COPY OF THE ORIGINAL PETITION NO. G & W/8/2020 PRINCIPAL JUDGE, FAMILY COURT, BANGALORE.** **EXHIBIT P3 TRUE COPY OF THE ORDER IN I.A. NO. II IN G & WC/8/2020 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, BANGALORE.** - **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO. 131/2020 IN OP NO. 2407/2018 PENDING OF THE FAMILY COURT ERNAKULAM.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 16/01/2020 IN I.A. NO. 131/2020 IN O.P. NO. 2407/18 ON THE FILE OF THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21/01/2020 IN I.A. NO. 394/2020 IN O.P. NO. 2407/2018 ON THE FILE OF THE FAMILY COURT ERNAKULAM.** **RESPONDENT'S EXHIBITS : NIL.**