High Court Kerala High Court

Chandrasekharan Krishnn And … vs State Of Kerala And Others on 9 November, 2009

Kerala High Court
Chandrasekharan Krishnn And … vs State Of Kerala And Others on 9 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(Crl.).No. 461 of 2009(S)



1. CHANDRASEKHARAN KRISHNN AND OTHERS
                      ...  Petitioner

                        Vs

1. STATE OF KERALA AND OTHERS
                       ...       Respondent

                For Petitioner  :SRI.SAJITH KUMAR V.

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :09/11/2009

 O R D E R
              R.BASANT & M.C.HARI RANI, JJ.
                     * * * * * * * * * * * * *
                     W.P.(Crl).No.461 of 2009
                    ----------------------------------------
            Dated this the 9th day of November 2009

                          J U D G M E N T

Basant,J

The 1st petitioner is the father of petitioners 2 to 4.

Petitioners 2 to 4 are minor children. The petitioner and his wife

were living in a gulf country. In 2007 March, they allegedly

returned, whatever be the reasons. They came down to Kerala.

The 1st petitioner allegedly took a house on rent. His wife and

children were accommodated there and he returned to his place

of employment. The wife and children were left in India. The 1st

petitioner now understands that his wife had taken a passport

subsequently and had gone to the gulf country where the

petitioner is now employed. According to the 1st petitioner, it is

the business rival of the 1st petitioner who have persuaded his

wife to return to the gulf country.

2. While leaving the children here, the wife had allegedly

left them in the custody of respondents 5 to 7. 7th Respondent is

the maternal grandmother of the children. Respondents 5 and 6

are related to the wife of the 1st petitioner that is the mother of

the children. Respondents 5 to 7 are now keeping custody of the

children. The children are not allegedly being looked after

W.P.Crl No.461/09 2

properly. The 1st petitioner has come to India. He has gone to see

the children. The police have facilitated such visit to the 1st

petitioner to see his children. He had taken a photograph of himself

with the three children. The same is produced as Ext.P4.

According to the 1st petitioner, the children are not being looked

after well by respondents 5 to 7. The future of the children will be

spoiled if they are permitted to continue in the custody of

respondents 5 to 7. In the absence of their mother, the 1st

petitioner, who is the father of petitioners 2 to 4, is most entitled to

the custody of petitioners 2 to 4. In these circumstances, it is

prayed that a writ of habeas corpus may be issued to procure the

presence of the children and to release them to the custody of the

1st petitioner.

3. We are afraid, the request of the 1st petitioner cannot be

accepted. The dispute, the above narration makes it crystal clear, is

one regarding the custody of the children and such dispute is

between father and mother. Both are not available in India and the

children are evidently left with the relatives of the mother. The

father has come back from the gulf state and now evidently wants to

steal a march over his wife by getting custody of the children by

moving this court with this petition for issue of a writ of habeas

corpus.

W.P.Crl No.461/09 3

4. We are not satisfied that any of the elements do exist, to

persuade this court to invoke its extraordinary constitutional

jurisdiction for issue of a writ of habeas corpus, in this case. We

are unable to agree that petitioners 2 to 4 can, prima facie, be held

to be in any illegal custody or confinement. The dispute is purely

one regarding the custody of the children between parents, who are

both not available in India. The 1st petitioner has unnecessarily

come to this court. The 1st petitioner must have gone to the Family

Court with an appropriate application to get custody of the children.

Instead of that, he has unnecessarily made the dispute appear to be

one of illegal custody and confinement. He has thus made a request

to this court for invocation of the jurisdiction to issue a writ of

habeas corpus.

5. This writ petition is, in these circumstances, dismissed;

but with the specific observation that the option of the 1st petitioner

to move the Family Court for appropriate orders regarding the

custody of petitioners 2 to 4 shall remain unaffected by the

dismissal of this writ petition.

(R.BASANT, JUDGE)

(M.C.HARI RANI, JUDGE)
jsr

W.P.Crl No.461/09 4

W.P.Crl No.461/09 5

W.P.Crl No.461/09 6

R.BASANT & M.C.HARI RANI, JJ.

.No. of 200

ORDER/JUDGMENT

29/07/2009