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.
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W.P.(Criminal) No.467 of 2008 S
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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.
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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.
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