High Court Kerala High Court

Beena @ Beena Sunny vs Kunjamma on 6 January, 2009

Kerala High Court
Beena @ Beena Sunny vs Kunjamma on 6 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(Crl.).No. 467 of 2008(S)


1. BEENA @ BEENA SUNNY,
                      ...  Petitioner

                        Vs



1. KUNJAMMA,
                       ...       Respondent

2. THE STATE OF KERALA,

3. THE SUB INSPECTOR OF POLICE,

                For Petitioner  :SRI.K.M.FIROZ

                For Respondent  :SRI.N.P.SETHU

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :06/01/2009

 O R D E R
                   A.K.BASHEER & THOMAS P. JOSEPH, JJ.
                             --------------------------------------
                         W.P.(Criminal) No.467 of 2008 S
                             --------------------------------------
                    Dated this the 6th day of January, 2009.

                                       JUDGMENT

Basheer, J.

Petitioner who is admittedly the mother of Justin E.Simon, a minor aged 8

years, has filed this Writ Petition praying for a direction to respondents 2 and 3

to release the said minor child from the illegal custody of respondent No.1 and

to handover the child to her. It is alleged by the petitioner that respondent No.1

has been keeping the minor child in her illegal custody, against his wish. She

further alleges that the life of the child will be in danger if he is allowed to remain

in the custody of the respondent No.1. It is the case of the petitioner that she

will be able to get admission for the child in a nearby school where she is now

residing even though it is half way through the academic year.

2. It is beyond controversy that the minor child has been in the

custody of the respondent No.1 for more than five years now. Ext.P2 will show

that in the course of the previous round of litigation, petitioner and respondent

No.1 had agreed upon certain terms and conditions regarding the custody of the

child. The Writ Petition [W.P.(Criminal) No.112 of 2008] filed by the petitioner

was disposed of by this Court recording the compromise entered into between

the parties as evidenced by Ext.P3, judgment dated 6.5.2008.

WP(crl.) No.467/2008

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3. According to the petitioner, she has allowed the child to continue

in the custody of the respondent No.1 having regard to the welfare of the child

but, now she is no more in a position to accept respondent No.1 as the

custodian of the child for various reasons.

4. We do not propose to deal with the issue any further at this stage

in view of our discussion with the petitioner in the course of hearing of the Writ

Petition. Petitioner stated before us that she is prepared to wait till the end of the

current academic year, if only she is able to get custody of the child after

completion of the academic year.

5. Respondent No.1 is also present in the court along with minor

child. We had requested Sr.Teena, an Advocate practicing in this Court to talk

to the parties. Learned counsel submits that the child is not very keen to go

with the mother and he appears to be comfortable and happy with respondent

No.1. Yet again we refrain from making any observation in that regard.

6. In view of the submission made by the petitioner who is admittedly

the mother of the minor child, we are satisfied that no orders need be passed in

this case at this juncture. Moreover, considering the welfare of the minor we are

of the view that if the prayer made by the petitioner is to be allowed at this stage,

it will adversely affect the education of the child who is reportedly studying in a

WP(crl.) No.467/2008

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school nearby the residence of the respondent No.1. In any view of the matter,

it cannot be said that respondent No.1 is keeping custody of the child illegally,

since admittedly the petitioner has willingly agreed to keep the child in the

custody of respondent No.1 as revealed from Ext.P2. But all said and done

petitioner is indisputably the mother of the minor child. But question of custody

cannot be considered in this proceeding.

7. We make it clear that we have not considered the merit or

tenability of the contentions raised by the petitioner. It will be open to the

petitioner to approach the competent Court seeking custody of the child in

accordance with law.

Writ Petition is closed.

A.K.BASHEER,
Judge.

THOMAS P.JOSEPH,
JUDGE.

cks