IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 363 of 2010(S)
1. VINU VARGHSESE
... Petitioner
Vs
1. THE SUPERINTENDENT OF POLICE
... Respondent
2. SUB INSPECTOR OF POLICE,
3. SHIBI BABU, AGED 32 YEARS,
4. P.K.BABUKUTTY,RESIDING AT DO
5. OMANA BABUKUTTY,
6. ANIYAN, PAICKATTU PUTHEN VEEDU
7. JOHNSON AGED 52 YEARS,
For Petitioner :SRI.R.SANTHOSH BABU
For Respondent :SRI. K.SHAJ
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :22/09/2010
O R D E R
R.BASANT & M.L.JOSEPH FRANCIS, JJ.
**********************
W.P.(Cri) No.363 of 2010
*********************
Dated this the 22nd day of September, 2010
JUDGMENT
BASANT, J.
Petitioner has come to this Court with this petition for issue
of a writ of habeas corpus to search for, trace and produce his
male minor child by name Alvin, who, it was alleged, is being
illegally detained and confined at some unknown place by
respondents 3 to 7.
2. The 3rd respondent is the mother of the child. The
petitioner and the 3rd respondent had admittedly entered into
Ext.P1 agreement to get married to each other in accordance
with law. That agreement is dated 05.01.2008. The marriage
has not been solemnised admittedly. The minor male child was
born in such relationship between the petitioner and the 3rd
respondent. The petitioner is employed abroad. The 3rd
respondent was having the custody of the child. The 3rd
respondent has now secured an employment and is not available
at her native place. It is the grievance of the petitioner, who has
come from abroad now, that the child is illegally kept away at
W.P.(Cri) No.363 of 2010 – 2 –
some unknown place by respondents 3 to 7. The 4th and 5th
respondents are the parents of the 3rd respondent and the 6th and
7th respondents are the relatives of the 3rd respondent.
According to the petitioner, the 3rd respondent now wants to
contract another marriage. The child has become an
inconvenience to her to enter such matrimony. It is, in these
circumstances, that the child has been kept away at some
unknown place by respondents 3 to 7. The petitioner prayed that
his child may be directed to be produced before this Court and
set at liberty.
3. This petition was filed on 14.09.2010. It was admitted
on 15.09.2010. Notice was ordered to the respondents.
4. Today when the case is called, the petitioner is
present. He is represented by his counsel. Respondents 3 to 7
are represented by a counsel. Counsel submits that the 3rd
respondent is not available at her native place and has gone to
Delhi to take up employment as a Nurse. The illegitimate child
born to the 3rd respondent in her relationship with the petitioner,
with whom she had entered into Ext.P1 agreement, is now left in
the custody of respondents 4 and 5. Respondents 4 and 5 have
W.P.(Cri) No.363 of 2010 – 3 –
appeared before Court along with the child. The learned counsel
for respondents 3 to 7 submits that the child is now in the
custody of respondents 4 and 5. There is no question of
abandonment of the child or illegal custody and confinement of
the child. Respondents 4 and 5 are keeping the child in their
custody on behalf of the 3rd respondent, who is at the moment
not able to take the child to her place of employment. This
petition for issue of a writ of habeas corpus is unnecessary and
misconceived. The same may be dismissed, submits the learned
counsel for respondents 3 to 7.
5. In a petition for issue of a writ of habeas corpus, we
are primarily concerned with the question whether there is any
illegal confinement or detention of the alleged detenue. The
alleged detenue in this case is an illegitimate minor child, aged
about 2 years. The child is now in the custody of his maternal
grandparents. The mother of the child is employed in Delhi and
the father of the child, the petitioner herein, is employed abroad.
We are unable to perceive any incidents of illegal detention or
confinement in the custody of the minor child. If the petitioner
has a grievance that he is entitled to get the child in his
W.P.(Cri) No.363 of 2010 – 4 –
custody in preference to the claim of respondents 3 to 5, the
mother and maternal grandparents, he must approach the
Family Court and seek custody of the child. We are definitely
satisfied that there are no circumstances justifying or warranting
the invocation of the extraordinary Constitutional jurisdiction of
this Court under Article 226 to issue a writ of habeas corpus.
6. This Writ Petition is, in these circumstances,
dismissed. We do however hasten to observe that the dismissal
of this Writ Petition will not in any way affect the right of the
petitioner to seek custody of the child in accordance with law by
initiating appropriate proceedings before the Family Court.
(R.BASANT, JUDGE)
(M.L.JOSEPH FRANCIS , JUDGE)
rtr/