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.
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W.P.(Crl).No.461 of 2009
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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
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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.
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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
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R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
29/07/2009