IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl) No. 227 of 2007(S)
1. YOOBI, D/O. LATE K.K.YOUSAF,
... Petitioner
Vs
1. DIRECTOR GENERAL OF POLICE,
... Respondent
2. INSPECTOR GENERAL OF POLICE
3. SUPERINTENDENT OF POLICE,
4. SUB INSPECTOR OF POLICE,
5. CITY POLICE COMMISSIONER,
6. STATION HOUSE OFFICER,
7. SHABU S., AGED 33 YEARS,
8. SHAJAHAN S.,
For Petitioner :SRI.T.M.RAMAN KARTHA
For Respondent :SRI.E.R.VENKATESWARAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :24/12/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ.
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W.P.(Crl)NO.227 OF 2007
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Dated this the 24th day of December, 2007
JUDGMENT
Raman, J.
Petitioner and the 7th respondent were husband and wife. Their
marriage was solemnized as per the customary rites on 5/9/2002 at
Aluva. Subsequently, a child was born to them in that wedlock on
5/12/2005. Both of them were residing at New Delhi. It is the case of
the petitioner that the 7th respondent started making allegations to the
effect that the petitioner is maintaining illicit relationship with her
distant relatives in Kerala. Subsequently, the petitioner and her baby
were brought back to her parental home for post natal care. She had
also got a transfer to the Office of the Intelligence Bureau at
Ernakulam in June, 2006. It was then the 7th respondent started
making allegations to the effect that the petitioner was maintaining
illicit relationship with her distant relatives in Kerala. In March, 2007
the 7th respondent issued a notice of Talaq to the petitioner through the
Muslim Jama Ath Committee dissolving his marriage with the
petitioner alleging that she had sexual relationship with another person
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of her locality. Ext.P3 is the copy of the notice of Talaq so issued.
Petitioner denies the allegation contained in Ext.P3. She also admits the
fact that she was admitted in the Medical Trust Hospital on 22/3/2007
and was discharged from there on 26/3/2007. While the petitioner was in
the hospital the 7th respondent visited her and told her that he was not
pressing the Talaq notice and subsequently also he visited the petitioner in
her parental home frequently and even resided four days together with the
petitioner and the child. Thus the petitioner’s mother had intimated the
Jama Ath Committee regarding the resumption of cohabitation by the
parties even after Ext.P3 notice. The 7th respondent wanted the
petitioner to apply for re-transfer to New Delhi and it was not acceptable
to her. Thereafter, the 7th respondent met the Jama Ath Committee and
obtained a certificate of divorce on the basis of Ext.P3 notice.
Subsequently on 24/8/2007 the 7th respondent came to the parental home
of the petitioner to see the child as usual. When the petitioner’s mother
was away on that day, the petitioner alone was in the house to take care of
the child and the 7th respondent took the child along with him and left
the home without intimating anything as to where he was taking the child.
The child was not returned subsequently. It is alleged that the petitioner
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contacted the elder brother of the 7th respondent from whom she came to
know that the 7th respondent had taken the child to New Delhi. Though
the petitioner wanted to file a police complaint against the 7th respondent,
it was desisted, thinking that the 7th respondent will bring back the child
to her. But finding that there is no positive response forthcoming and in
spite of the fact that she tried to contact the 7th respondent over phone,
such attempt did not succeed. This writ petition is filed for a direction to
the respondents to produce the minor child, Sayid Farhan aged 1 year and
10 months, before this Court forthwith and to hand over custody of the
child to the petitioner.
2. Pursuant to the notice issued, a counter affidavit was filed by the
7th respondent. In the counter affidavit it is averred that the petitioner and
the 7th respondent were married on 5/9/2002 and pursuant thereto an
agreement of marriage was registered on 18/7/2002. Both the petitioner
and the 7th respondent are Central Government employees. Petitioner
came down to Delhi and they were leading happy married life and a child
was born to them at New Delhi. But the relationship between the
petitioner and the 7th respondent started declining, since the petitioner
had regular contacts with her friend in Kerala. Various conversations
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between the petitioner and the lover of the petitioner (Ashiq) were
admitted by the petitioner herself. Her lover came down to Cochin which
fact came to the knowledge of the 7th respondent only subsequently when
the petitioner came down to Cochin in March 2006. Petitioner herself
admitted the relationship with the said Ashiq and hence the 7th
respondent had no other alternative than to initiate Talaq and it was in
those circumstances that Ext.P3 notice was issued. On receipt of the said
notice the petitioner attempted to commit suicide and she was admitted in
the Hospital on 20/3/2007. It was also alleged that an attempt was made to
give poison to the child. Subsequently, she was discharged on 27/3/2007.
Photocopy of the discharge certificate is produced as Ext.R7(a). The 7th
respondent initiated counselling the petitioner for re-approachment and
she was brought down to her house at Aluva. Thereafter, the Secretary of
the Jama Ath Committee approached the petitioner, but the petitioner was
not interested in having a proper relationship. Hence, Ext.R7(b) was
issued expressing his desire to proceed with the Talaq. It was on receipt of
the same that the petitioner phoned up to the 7th respondent saying that
she cannot accept the divorce and she will commit suicide along with the
child. On 17/5/2007 after obtaining the Talaq certificate which was
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intimated to the office of the petitioner, he came down to the petitioner’s
house and said that he would like to take the child, which was objected to
by her mother saying that the child may not be taken for the moment and
the Secretary of the Jama Ath Committee promised to give the child after
three months. Accordingly, the 7th respondent came down to the
petitioner’s house on 24/8/2007 and taken the child and there was no
objection at all. The allegation that he forcefully taken the child is denied.
The further allegation contained in the writ petition that the 7th
respondent switched off the mobile phone, when she attempted to contact
him is also denied. The 7th respondent has no intention to continue the
relationship with the petitioner, as it will affect the future career of the
child. It is prayed that this writ petition may be dismissed.
3. Subsequently, a reply affidavit was filed producing Exts.P15. The
7th respondent filed an additional counter affidavit also. In the view we
are taking, it is not felt necessary to consider such details of the
allegations and counter allegations, as we do not propose to enter a
finding on merits.
4. Pursuant to the notice issued, the parties have appeared before us
and our effort to bring the parties for reunion however did not succeed.
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We had given the petitioner-mother temporary custody of the child by our
order dated 19/11/2007 and allowed the parties for interaction with each
other with a view that both the parties may reconciliate in the larger
interest and welfare of the child and adjourned the case to 4/12/2007. On
4/12/2007 however the child was given to the 7th respondent-father, since
he expressed his desire to celebrate the birthday of the child on 5/12/2007.
Thereafter, he brought back the child and the child was given to the
custody of the petitioner-mother. On 7/12/2007 the interim order granting
custody of the child to the petitioner was extended by one week so as to
enable the parties to approach the Family Court in the meantime and
posted the case on 14/12/2007.
5. It is submitted by the learned counsel for the 7th respondent that
he has already filed Guardian and Wards O.P. No. 1660/2007 before
the Family Court, Ernakulam and the case is posted on 22/1/2008 for
appearance of the parties. Considering the age of the child as also the fact
that the child was taken from Ernakulam where the petitioner and the
child were residing in her maternal house, we thought it proper to put
back the child to the custody of the petitioner, leaving open the right of
the parties to approach the Family Court, which is the appropriate Forum
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to consider, based on materials on record, whether the child should be
given to the custody of the petitioner or to the 7th respondent considering
the welfare of the child. Now that the 7th respondent had already
approached the Family Court as already noticed above, we extend the
interim custody of the child to be with the mother till such time the Family
Court may pass appropriate orders interim or otherwise. The Family Court
shall consider all aspects of the matter independently untrammelled by the
observations contained in this judgment. We make it clear that we have
not considered the matter in greater length nor assessed the truth or
otherwise of the allegations and counter allegations made in the writ
proceedings, as we thought that the jurisdiction in habeas corpus petition
shall not be enlarged and enter a finding on the merits of the case,
especially when the parties have approached an alternative Forum, where
such matter could be dealt with in greater length. At the risk of repetition
we may say that We have only considered as to who should be given the
interim custody of the child for the time being, having due regard to the
fact that the child was with the mother before the child was taken away by
the 7th respondent, until the matter is considered land orders passed
by the Family Court.
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Both parties shall appear before the Family Court on the next hearing
date.
Writ Petition is disposed of as above.
P.R.RAMAN,
Judge.
V.K.MOHANAN,
Judge.
kcv.