High Court of KeralaDivision Bench2014-11-20Disposed of

Sajana v. Sub Inspector of Police, Anchal Police Station, Kollam District, and others

Case / Petition Number:WP(Crl).No. 402 of 2014 (S)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
K. Harilal
Judgment Date: 2014-11-20
Court Decision / Holding: Writ petition disposed of; the petitioner is relegated to approach the Family Court, Nedumangad, for custody of the minors. The court directed that the petitioner may interact with the children until 4:30 p.m. on the day of hearing and emphasized that the ultimate determination must be made by the competent Family Court on pleadings and evidence, bearing in mind the welfare of the children.
Final Disposition: Disposed of

Parties to the Case

Appellants / Petitioners

Sajana

Respondents

Sub Inspector of Police, Anchal Police Station, Anchal, Kollam District - 690001
Sainulabdheen Maroor Charivila Puthen Veedu, Thadikkattill Pathanapuram, Anchal, Kollam District - 690001
Fathima Beevi Maroor Charivila Puthen Veedu, Thadikkattill Pathanapuram, Anchal, Kollam District
Nazeer, Maroorcharivila Puthenveedu, Thodikkattil Pathanapuram, Anchal, Kollam District, PIN-690001

Legal Representation & Advocates

Counsels for Petitioners

• Sanu S Panicker
• M. Ziyad
• Sreekanth S. Nair

Counsels for Respondents

• Public Prosecutor Smt. Kochumol Koduvath
• TPM Ibrahim Khan (Sr.)
• K. M. Abdul Majeed

Case Synopsis & Summary

Sajana, the mother of two three-year-old children Muhammed Roshan and Riyas Sulthana, seeks a writ of habeas corpus to recover the minors allegedly taken from her custody by Respondents 2 and 3. The petition was admitted and the children were produced in court on 7.10.2014, with the father also present; on 7.11.2014 and 13.11.2014, the court permitted interaction with the children and directed the father to be impleaded as an additional respondent. The petitioner, relying on Jumaila v. Abdul Gafoor and others (2012) to contend for maternal custody, argues that custody disputes should be resolved expeditiously in her favor. The respondents counter that custody matters fall under the exclusive jurisdiction of the Family Court under Section 7(g) of the Family Courts Act, 1984, and that Article 226 writs are inappropriate where a statutory remedy exists. The court notes that the petitioner has not approached the Family Court for custody and emphasizes the paramount welfare of the child, which must be assessed on pleadings and evidence in the appropriate forum. Relying on the statutory remedy, the bench declines to usurp Family Court powers and disposes of the writ petition, relegating the matter to the Family Court, Nedumangad, for proper adjudication while allowing continued interaction with the children for the day.

Provisions of Law Cited

Family Courts Act, 1984, Section 7(g)Constitution of India Article 226

Legal Doctrines & Maxims

Welfare of the child is the paramount consideration
Where an effective alternative remedy exists, the court should refrain from entertaining a writ under Article 226 in custody matters

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the minors were forcibly removed from her custody and seeks habeas corpus to produce them. She relies on Jumaila v. Abdul Gafoor to urge maternal custody rights and argues that custody determinations should reflect the welfare of the children, with immediate restoration of custody if warranted. She asserts Article 226 powers to protect fundamental rights and emphasizes the need for rapid relief, particularly where the Family Court Act provides a remedy. The petitioner highlights prior court interactions and challenges the alleged illegal custody by the respondents.

Contentions of Respondents

The respondents contend that custody disputes over minors fall within the exclusive jurisdiction of the Family Court under Section 7(g) of the Family Courts Act, 1984. No Family Court proceedings have been initiated in Nedumangad or elsewhere to obtain a custody order, and a writ petition cannot substitute a custody order without proper pleadings and evidence. They emphasize the welfare principle but insist that an adjudication by the Family Court, with its procedural safeguards, is the appropriate route. They observe that the petitioner bypassed the statutory remedy and rely on Jumaila only to illustrate a different procedural posture. The respondents argue that there is no illegality by respondents 2–4 and urge remand to the Family Court with necessary pleadings and evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jumaila v. Abdul Gafoor and others	2012 (2) KHC 770	Mentioned Only	Cited to illustrate a maternal custody perspective and reference to Family Court remedy; not treated as controlling precedent for the present writ petition, which was decided on jurisdictional grounds and availability of an alternative remedy.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 20TH DAY OF NOVEMBER, 2014/29TH KARTHIKA, 1936** **WP(Crl.).No. 402 of 2014 (S) -----------------------------** **PETITIONER(S): -------------SAJANA, AGED 24 YEARS D/O. SAINULABDEEN, JANATHA HOUSE, VENJARAMOOD P.O. VENJARAMOODU, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.SANU.S.PANICKER SRI.M.ZIYAD SRI.SREEKANTH S.NAIR** ## **RESPONDENTS(S):** **--------------** **1. SUB INSPECTOR OF POLICE, ANCHAL POLICE STATION, ANCHAL, KOLLAM DISTRICT - 690 001.** **2. SAINULABDHEEN MAROOR CHARIVILA PUTHEN VEEDU, THADIKKATTIL PATHANAPURAM, ANCHAL, KOLLAM DISTRICT - 690 001.** **3. FATHIMA BEEVI MAROOR CHARIVILA PUTHEN VEEDU, THADIKKATTIL PATHANAPURAM, ANCHAL, KOLLAM DISTRICT.** ADDL.R-4. NAZEER, MAROORCHARIVILA PUTHENVEEDU, THODIKKATTIL PATHANAPURAM, ANCHAL, KOLLAM DISTRICT,PIN- 690001 IS IMPLEADED AS PER ORDER DTD.7.11.2014 IN I.A.NO.13978/2014 IN WP(CR) NO.402/2014. **R1 BY PUBLIC PROSECUTOR SMT.KOCHUMOL KODUVATH. R2 & 3,R4 BY ADV. SRI.TPM.IBRAHIM KHAN (SR.) R2 & 3,R4 BY ADV. SRI.K.M.ABDUL MAJEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY** **HEARD ON 20-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX [WP(CRL) NO.402 OF 2014]** ## **PETITIONER'S EXHIBITS: NIL** ## **RESPONDENTS' EXHIBITS:** **EXT.R4(A): A photostat copy of petition No.MC 278 of 2008 filed by the petitioner before the Family Court, Nedumangad against Shri.Varun.** **Ext.R4(B): A photostat copy of the relevant portion of the First Information Report No.487/2008 filed by the Venjarammoodu Police Station before the Judicial First Class Magistrate Court-I, Nedumangad.** **Ext.R4(C): A photostat copy of the Final Report filed by the S.I. Of Police, Venjarammoodu in FIR No.8/2007 before the Sessions Court, Thiruvananthapuram.** **Ext.R4(D): A photostat copy of the petition filed by the petitioner before the Sub Inspector of Police, Pathanapuram.** **Ext.R4(E): A photostat copy of the Agreement dated 27.12.2010 entered into between the petitioner and the additional fourth respondent.** ## **-true copy-** **P.S.TO JUDGE.** ## **V.K.MOHANAN & K. HARILAL, JJ.** ## **----------------------------------------** ## **W.P(CRL) No. 402 of 2014** **----------------------------------------** Dated this the 20[th] day of November, 2014 ## **J U D G M E N T** ## Mohanan,J: The petitioner is the mother of one Muhammed Roshan, aged 3 years and Riyas Sulthana, aged 3 years. The grievance projected by the petitioner in this writ petition is that the second and third respondents had taken the custody of the above children from her custody forcefully. Therefore, impleading the in-laws of the petitioner without impleading her husband, this writ petition is filed with a prayer to issue a writ of habeas corpus directing the first respondent to produce the corpus of the detenue 'Muhammed Roshan' aged 3 years and 'Riyas Sulthana' aged 3 years before this court. 2. When the above writ petition is admitted and while issuing notice to respondents 2 and 3, they were directed to be present in this Court with the children and the first respondent/Police is directed to W.P(CRL) No. 402 of 2014 **==> picture [21 x 9] intentionally omitted <==** see that the said order is complied by respondents 2 and 3. Pursuant to the above order, the above children were produced before this Court on 7.10.2014. Though the father of the said children, who is the husband of the petitioner, is not impleaded, he was present on that day. Accordingly, we directed the petitioner to implead the father of the children as additional respondent and the children were sent along with their father. Again on 7.11.2014, the children were produced and we permitted the petitioner to have interaction with the children till 4.30 p.m. on that day and thereafter directed to hand over the children to additional fourth respondent. When the matter was again taken on 13.11.2014, the petitioner was permitted to have the custody of the children till 4.30 p.m. on that day and the petitioner was directed to file reply affidavit, if any, against the counter affidavit filed by the contesting respondent and adjourned the case to this date. Today also the children are produced by the contesting respondents. 3. We have heard the learned counsel for the petitioner and W.P(CRL) No. 402 of 2014 :-3-: Senior counsel Sri.Ibrahim Khan appearing for the respondent. 4. Learned counsel for the petitioner submitted that the petitioner is entitled to get the custody of the children as per law, particularly when the children were allegedly taken forcefully from her custody and possession. In order to substantiate the above contention of the counsel, he placed reliance upon a decision reported in **Jumaila** v. **Abdul Gafoor and others** [2012 (2) KHC 770]. The learned Senior Counsel appearing for the respondent submitted that by virtue of Section 7(g) of the Family Courts Act,1984, the dispute regarding the custody of the children has to be raised before the Family Court concerned. 5. Having regard to the facts and circumstances involved in the case, it appears to us that so far, the petitioner has not approached the Family Court for the custody of the children. As rightly pointed out by the learned Senior Counsel, by virtue of Section 7(g) of the Family Courts Act,1984, specific jurisdiction is conferred upon the Family W.P(CRL) No. 402 of 2014 :-4-: Court with respect to the guardianship of the person, or custody of, or access to any minor. In the decision relied on by the learned counsel also, the mother approached the Family Court, Malappuram and the said court has decided that the wife should have the custody of her children. However, in the present case, the petitioner directly approached this Court by invoking jurisdiction of this Court under Article 226 of the Constitution of India. When an effective alternative remedy is provided under the Family Court Act, we are of the view that this Court will not be justified in usurping such powers of the Family Court, particularly when the court is confronted with the question of custody of minor children, paramount consideration must be of the welfare of such children, which has to be considered only on the basis of the appropriate pleadings and evidence on record. So, under Article 226 of the Constitution of India, this Court will not be able to effectively exercise such jurisdiction in the absence of any evidence or materials. The additional fourth respondent, being the W.P(CRL) No. 402 of 2014 :-5-: father of the children and respondents 2 and 3, being the brother and sister of the additional fourth respondent, it cannot be said that the custody of the children with them, is illegal unless appropriate decision is taken by the competent authority, based upon evidence. In the result, we find no merit in this writ petition and accordingly, we do not propose to proceed with the same, especially when the petitioner is left with an effective remedy to redress her grievance, if any. So, we are inclined to dispose of this writ petition relegating the petitioner to approach the Family Court, Nedumangad. The petitioner is free to have custody and interaction with the children till 4.30 p.m. today. **V.K.MOHANAN,** **Judge** **K. HARILAL,** MBS/ **Judge.** W.P(CRL) No. 402 of 2014 :-6-: