Shain Sudhakaran v. Union of India and Others

``` 'C.R.' ``` ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **WP(CRL.) NO. 261 OF 2022** ## **PETITIONER:** **SHAIN SUDHAKARAN, AGED 45 YEARS, S/O SUDHAKARAN, SITHARA, KADAKKAL P.O., KOTTARAKKARA TALUK, KOLLAM, PIN - 691536 BY ADVS. M.R.SASITH NEELANJANA NAIR RAJITHA V.K PREETI S. BHAVANA K.K** ## **RESPONDENTS:** |**1**|**THE UNION OF INDIA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT**| ||**MINISTRY TO EXTERNAL AFFAIRS, ROOM NO.1024,**| ||**JAWAHAR NEHRU BHAWAN , 23-D ,**| ||**NEW DELHI, PIN - 110001**| |**2**|**THE CONSULATE GENERAL OF INDIA,**| ||**48TH ST.UMM, HURAIR, DUBAI**| ||**UNITED ARAB EMIRATES,**| ||**POST BOX NO 737**| |**3**|**THE STATE POLICE CHIEF**| ||**(KERALA**| ||**KERALA POLICE HEADQUARTERS,**| ||**THIRUVANANTHAPURAM, PIN - 695012**| |**4**|**THE DISTRICT POLICE CHIEF (RURAL)**| ||**KOTTARAKKARA, KOLLAM, PIN - 691506**| |**5**|**THE STATION HOUSE OFFICER**| ||**KULATHUPUZHA POLICE STATION**| ||**KULATHUPUZHA, PIN - 691310**| |**6**|**ANU T**| ||**AGED 32 YEARS,**| ||**D/O THIRUMALA M,**| ||**NARANGATHOTTAM,**| ||**AYYANPILLAI VALAV,**| ||**KULATHUPUZHA P.O.,**| ||**KOLLAM-, PIN - 691310**| ## **W.P.(Crl) No.261 of 2022** ## **2** **7 THIRUMALA M NARANGATHOTTAM, AYYANPILLAI VALAV, KULATHUPUZHA P.O., KOLLAM-, PIN - 691310 8 VIJAYAKUMARY W/O THIRUMALA M., NARANGATHOTTAM, AYYANPILLAI VALAV, KULATHUPUZHA P.O., KOLLAM-, PIN - 691310 BY ADV MANU S., ASG OF INDIA** ## **OTHER PRESENT:** **SRI.E.C.BINEESH - GP** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(Crl) No.261 of 2022** **3** ``` 'C.R.' ``` ``` K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------- W.P(Crl.)No. 261 of 2022 --------------------------------------- Dated this the 21[st] day of March, 2022 ``` ## **`JUDGMENT`** ## `Jayachandran, J.` Petitioner is the father of the alleged detenue, a minor boy, aged 8 years. The 6[th] respondent is the mother of the alleged detenue and respondents 7 and 8 are the parents of the 6[th] respondent. According to the petitioner, the alleged detenue is in illegal custody of respondents 6 to 8 in contravention of Ext.P2 order of the Family Court, Kottarakara in O.P (G&W) No.1660/2018. Petitioner seeks issuance of a writ of Habeas Corpus, commanding production of the minor child before this Court and to give his custody to the petitioner. **2.** The petitioner would elaborate that the marriage between the petitioner and the 6[th] respondent was solemnised on 16.05.2012 at Kulathupuzha. On 09.08.2016, the 6[th] respondent deserted the petitioner and left to Dubai, leaving the minor son with her parents, **W.P.(Crl) No.261 of 2022** **4** respondents 7 and 8. Since then, the minor child has been in the custody of the 6[th] respondent, without affording an opportunity to the petitioner to mingle and interact with the child. The petitioner preferred an Original Petition under the Guardians and Wards Act as O.P (G&W) No.1660/2018 before the Family Court, Kottarakara, seeking permanent custody of the child. The Family Court, vide Ext.P2 order dismissed the original petition, affording minimal visitation rights to the petitioner, that is to interact with the minor/ward through video call on every Monday and Thursday, for a duration of 10 minutes between 5.00 p.m and 5.30 p.m. After expiry of three months from the date of Order, the respondents therein were directed to hand over the custody of the minor ward to the petitioner from 10.30 a.m. till 3.30 p.m on every Saturday for a period of three months. Thereafter, the respondents stood directed to hand over the custody of the minor ward to the petitioner on every second and fourth Saturday at 10.30 a.m., till 3.30 p.m. of the succeeding Sunday. Aggrieved by Ext.P2 order, the petitioner preferred an appeal before this Court as MAT Appeal No.604/2021, which is pending consideration. ## **W.P.(Crl) No.261 of 2022** **5** **3.** According to the petitioner, respondents 7 and 8 failed to comply with any of the directions in Ext.P2. They do not pick up the phone and even changed the phone numbers, so as to defeat the minimal rights of the petitioner. The petitioner has not seen the child for last more than four years. The petitioner is a citizen of USA and he came to Kerala only to see his child. He has been residing in Kerala since November, 2021, with the sole purpose of meeting his child, which is denied and defeated by respondents 6 to 8. While so, on 27.02.2022, the petitioner got information that respondents 6 to 8 have flown to Dubai along with the ward, without the consent and knowledge of the petitioner, since the 6[th] respondent is working there. The petitioner would allege that the detenue/ward is in illegal custody of respondents 7 and 8. The minor male child aged 8 years needs the care and attention of his father as well. On such premise, the petitioner seeks the relief above referred. The petitioner relied upon the following decisions of the Honourable Supreme Court in support of his case. **i** _**). V.Ravi Chandran v.Union of India and Others**_ _**(2010) 1 SCC 174**_ **W.P.(Crl) No.261 of 2022** **6** _**ii). Shilpa Aggarwal vs. Aviral Mittal (2010) 1 SCC 591.**_ _**iii). Syed Saleemuddin v.Dr.Rukhsana and Others.(2001)5 SCC 247.**_ _**iv). Gaurav Nagpal v.Sumedha Nagpal, (2009) 1 SCC 42.**_ _**v). Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479.**_ **4.** Having heard learned counsel appearing for the petitioner, we are not persuaded to entertain this writ petition seeking issuance of a writ of Habeas Corpus. **5.** In _**Kanu Sanyal v. District Magistrate, Darjeeling,**_ _**1973 SCC (2) 674,**_ a 5 Judges Bench of the Honourable Supreme Court held thus about the scope and nature of the writ of Habeas Corpus. _“4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice-immediately after the receipt of_ **W.P.(Crl) No.261 of 2022** **7** _this our writ, the body of A.B. being taken and detained under your custody-together with the day and cause of his being taken and detained - to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes,(supra), "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained.”_ ## **6.** In _**Syed Saleemuddin v.Dr.Rukhsana and Others.(2001)5**_ _**SCC 247,**_ the Honourable Supreme Court considered the scope of a writ of Habeas Corpus, in the context of custody of the minor children and held as follows: _`“` 11_ _**.** From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for 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 present custody should be changed and the children should be left in care and custody of somebody else.”_ (underlined for emphasis) ## **7.** It is clear from the above authoritative pronouncements that the primary enquiry centers around ## **W.P.(Crl) No.261 of 2022** **8** the fact whether the alleged detenue is in illegal custody of the respondents, as alleged by the petitioner. The 6[th] respondent is none other the mother of the minor child. The detenue/minor child is in the custody of the 6[th] respondent/mother, in fact in her constructive custody, through her parents, namely respondents 7 and 8. The custody of the child is traceable to Ext.P2 order, wherein, the prayer for custody of the child by petitioner is seen rejected, except for the minimal visitation rights. Aggrieved by Ext.P2 order, the petitioner had already preferred a matrimonial appeal before this Court - MAT Appeal No.604/2021, which is pending consideration. In such circumstances, we are not persuaded to hold that the child is in illegal custody/detention of the 6[th] respondent, or for that matter, respondents 7 and 8. The essential grievance of the petitioner appears to be that his limited visitation rights through video call and the phased enhancement of such right as contemplated in Ext.P2 is sought to be defeated and denied by the respondents. According to the petitioner, it is for that purpose the child was taken to Dubai. However, it cannot be lost sight of that the 6[th] respondent is working in Dubai. If the petitioner is ## **W.P.(Crl) No.261 of 2022** **9** denied of his rights under Ext.P2 order, the petitioner has to work out his remedies either before the Family Court, Kottarakara or before this Court, where the MAT Appeal is pending; and certainly not by invoking the extraordinary jurisdiction of this Court by seeking a writ of Habeas Corpus. **8.** The decisions relied upon by the petitioner in _**Gaurav Nagpal**_ (supra) and _**Ruchi Majoo**_ (supra), are cases which originated from proceedings under the Guardians and Wards Act, and therefore, not on all fours to the fact situation herein. As held in _**Syed Saleemuddin**_ , the primary consideration is, and ought to be, whether the custody of the child is illegal or unlawful. Only when the answer to this question is in the affirmative, can this Court proceed to the next question, whether the welfare of the child requires a change in the present custody of the child. Since we are not satisfied of the first parameter, we need not venture to answer the second, since another Court of the High Court, exercising its regular jurisdiction, is already in seisin of the matter. In the absence of any illegal detention, we are not inclined to invoke the jurisdiction to issue a writ **W.P.(Crl) No.261 of 2022** **10** of Habeas Corpus. Therefore, leaving open such other remedies available to the petitioner in law, this writ petition is dismissed. ``` Sd/- K.VINOD CHANDRAN JUDGE Sd/- C.JAYACHANDRAN JUDGE ``` ``` NR/21/03/2022 ``` ## **W.P.(Crl) No.261 of 2022** **11** ## **APPENDIX** **PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE BIRTH CERTIFICATE OF THE DETENUE DATED 17.01.2017 ISSUED BY THE PUNALOOR MUNICIPALITY** **Exhibit P2 TRUE COPY OF THE JUDGMENT OF THE HON’BLE FAMILY COURT, KOTTARAKKARA IN O.P (G&W) NO. 1660/2018 DATED 10.08.2021** **Exhibit P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE KULATHUPUZHA POLICE STATION DATED 03.03.2022**