IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 236 of 2010(S)
1. BINDU, W/O.SATHEESH MOHAN AND
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. INSPECTOR GENERAL OF POLICE,
3. THE CIRCLE INSPECTOR OF POLICE,
4. RAMESH, S/.PATTIKKARA KESHAVAN,
5. P.K.RAJESH, S/O.PATTIKKARA KESHAVAN,
6. RADHIKA RAVINDRAN,
7. SEEMANDHINI KESHAVAN,
For Petitioner :SRI.PAUL JACOB
For Respondent :SRI.A.C.DEVY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :08/07/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
* * * * * * * * * * * * *
W.P.(Crl) No.236 of 2010
----------------------------------------
Dated this the 8th day of July 2010
J U D G M E N T
Basant,J
This judgment must be read in continuation of the earlier
orders passed by us in the matter resting with the order dated
01/07/2010.
2. Today both counsel submit that the child was
produced before the Family Court on 06/07/2010. The Family
Court has already made interim arrangements regarding the
custody of the child and the matter stands posted to 17/7/2010
for further directions.
3. We record these facts. No further directions are
necessary.
4. This writ petition is, in these circumstances, allowed
in part to the above extent.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
// True Copy// PA to Judge
W.P.(Crl) No.236/10 : 2 :
Dated this the 1st day of July 2010
O R D E R
Basant,J
The petitioner has come to this Court with this petition for
issue of a writ of habeas corpus to search for, trace and produce
her minor child – son aged 8 years (date of birth : 12/03/2002).
The 4th respondent is the former husband of the petitioner and
the father of the child. Respondents 5 and 6 are siblings of the
father of the child and the 7th respondent is the mother of the 4th
respondent. The petitioner and the 4th respondent have obtained
divorce from the court. It was an ex parte decision by the Family
Court, Thrissur, it is submitted. The child was with the 4th
respondent and the petitioner had claimed custody of the child
by filing Guardian O.P.No.1181/07. The 4th respondent herein
did appear before the Family Court in G.O.P.No.1181/07.
Interim orders were passed by the Family Court. In the course
of the proceedings in G.O.P.No.1181/07, the 4th respondent
remained ex parte and did not participate in the proceedings.
After he was so set ex parte, interim directions were also not
complied with. In these circumstances, the learned Judge of the
W.P.(Crl) No.236/10 : 3 :
Family Court proceeded to pass ex parte order in
G.O.P.No.1181/07 on 30/04/2010. According to the petitioner,
the whereabouts of the child were not revealed to the petitioner
and she was hence not able to get custody of the child as per the
order in G.O.P.No.1181/07. It is, in these circumstances, that
the petitioner came before this Court with this petition for issue
of a writ of habeas corpus to search for, trace and produce her
minor child.
2. Today when the case is called, the petitioner is
present. The petitioner has already got re-married, it is
submitted. Her present husband Sri.Satheesh is also present.
Respondents 4 to 7 have also appeared before Court. They are
represented by a counsel. Along with them, the alleged detenue
– minor child Master Ashwin Ramesh is also present.
3. We permitted the child to remain with the petitioner
during the pre-lunch session. After the lunch recess, we
interacted with the child Master Ashwin alone initially. Later,
we interacted with the child in the presence of the petitioner.
Subsequently, we interacted with the petitioner, respondents 4
and 7 as also Sri.Satheesh, the present husband of the petitioner.
W.P.(Crl) No.236/10 : 4 :
4. Respondents 4 and 7 submit that the child has been
with them for the past about 4 years. Unfortunately, the 4th
respondent has been set ex parte before the Family Court and an
ex parte order has been passed. Application has been filed to get
the ex parte order set aside. The same is pending before the
Family Court. The child is now studying in third standard in the
Amritha Vidhyalaya at Palakkad. Great difficulties will be
experienced, if the child were to be uprooted from Palakkad
where the child is now residing along with the 7th respondent.
The 4th respondent is admittedly employed abroad and has now
come on leave on coming to know of this proceedings. They pray
that the child may not be handed over to the custody of the
petitioner notwithstanding the ex parte order in
G.O.P.No.1181/07.
5. We have considered all the relevant inputs. We are
satisfied that, it is not necessary for us, exercising the
jurisdiction under Article 226 of the Constitution of India to
issue any specific directions regarding the permanent custody of
the child. We deem it proper that the Family Court must be
directed to pass appropriate orders. The Family Court shall take
W.P.(Crl) No.236/10 : 5 :
into consideration all the relevant circumstances and issue
appropriate further directions regarding custody of the child.
We are aware that an ex parte order has been passed in
G.O.P.No.1181/07 on 30/4/2010; but we have been apprised of
the fact that a petition to set aside the ex parte order is pending
before the Family Court. It is hence that we say that it will be
better in the interests of justice to leave it to the Family Court to
pass appropriate further directions. Parties can be directed to
appear before the Family Court on 06/07/2010 along with the
child and the Family Court can be directed to issue appropriate
further orders.
6. One short question survives. With whom shall the
child be sent today so that the child can be produced by such
party before the Family Court on 06/07/2010? We take note of
the rival contentions. We take note of the plight of the petitioner
who has not had occasion and opportunity to interact with the
child for quite some time now. We are, in these circumstances,
satisfied that the child can be handed over to the custody of the
petitioner today with specific directions to her to produce the
child before the Family Court on 06/07/2010 at 10.30 a.m. The
W.P.(Crl) No.236/10 : 6 :
Family Court shall pass appropriate directions. We had left the
child with the mother from morning and we are satisfied that the
child has acclimatised well in the company of his mother and is
absolutely comfortable in such custody.
7. Call this petition again on 08/07/2010. On that day,
the learned counsel shall inform this Court whether the
directions have been complied with and the child has been
produced before the Family Court.
8. Hand over copy of this order to both counsel straight
away. The registry shall forthwith communicate this order to the
Family Court by fax/telephone.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
W.P.(Crl) No.236/10 : 7 :
W.P.(Crl) No.236/10 : 8 :
R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
29/07/2009