IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
WP(CRL.) NO. 197 OF 2021
PETITIONERS:
1 RAJESH V., AGED 38 YEARS, S/O.VASUDEVAN P.E., ERAKKATT
HOUSE, MULLURKARA P.O., THRISSUR - 680 583.
2 SADNANADAN V., AGED 64 YEARS, S/O.NARAYANAN KUTTY NAIR,
SOPANAM, KALLIPPADAM, SHORANUR P.O., PALAKKAD- 679 122.
BY ADVS.
C.HARIKUMAR
ANAND GOKULDAS
SANDRA SUNNY
RESPONDENTS:
1 THE CIRCLE INSPECTOR OF POLICE, SHORANUR POLICE
STATION, SHORANUR, PALAKKAD - 679 121.
2 PRASANTH K.M., S/O.MOHANAN, PREMNIVAS, BLAYIL ROAD,
EROOR SOUTH, EROOR P.O., TRIPUNITHURA - 682 306.
*ADDL.3 THE STATION HOUSE OFFICER, THRIPUNITHURA.
* ADDL.R3 IS IMPLEADED AS PER ORDER DATED 13/08/2021
*ADDL.4 SHEEBA ANAND, D/O.SADANANDAN V., PREMNIVAS, BLAYIL
ROAD, EROOR SOUTH, EROOR P.O., TRIPUNITHURA-682 306.
* ADDL.R4 IS IMPLEADED AS PER JUDGMENT DATED 01/09/2021
BY ADVS.
SENIOR GP SRI.T.K.
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(Crl) No.197/2021 - 2 -
K.VINOD CHANDRAN & ZIYAD RAHMAN A.A, JJ.
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W.P(Crl.)No.197 of 2021-S
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Dated, this the 1st September, 2021
JUDGMENT
Vinod Chandran, J.
The husband and father, petitioners, seek production of the wife/daughter, who was missing along with a minor son, the latter of whom is assessed as having Autism Spectrum Disorder. The petitioners apprehended that the lady is in the illegal custody of the 2nd respondent.
2. On 06.08.2021, we directed the 1st respondent- Station House Officer to enquire about the whereabouts of the missing mother and child. It was also directed that necessary enquiries be made from the 2nd respondent also. On 11.08.2021 a statement was filed by the 1st respondent stating that the mother and child had voluntarily appeared before the Station House Officer. It was divulged by the missing mother, through a statement, that she had, on her own freewill, picked up her son to join the 2nd respondent, her social media friend. The petitioners were called to the Police Station and they were allowed to interact with the mother and child. The missing woman and child were also produced before the Judicial First W.P(Crl) No.197/2021 - 3 - Class Magistrate's Court, Ottappalam.
3. Considering the fact that the child is shown to be one having special needs, we directed production of the child. Today, the minor child along with his mother appeared before this Court. The petitioners and the maternal grandmother of the minor child were also present. We interacted with the minor child, whom we too perceived to be a child having special needs as certified by Ext.P2. We first called the 1st petitioner, the father of the minor child, into the chambers. The child was very affectionate to the father and willingly joined him. We asked him whether he was ready to go with the father, to which the child agreed. Later we called the mother also. We tried to make the mother understand that the child needs both the parents. However, the mother was adament and asserted that she is living with the 2nd respondent, a friend, on her own freewill. When we informed her about the willingness of the child to go with the father; she said that the child would not even have food; if devoid of her presence. She asked the child whether he wants to go with the father and he replied in the affirmative. Then she made him understand that she would not be coming with him, when the child did not agree to that. We again pointed out the fact that the child requires both parents, especially in the special condition he W.P(Crl) No.197/2021 - 4 - is in, but the mother did not relent.
4. We were informed that the wife of the 1 st petitioner has already commenced divorce proceedings, which she wanted to pursue. The 1st petitioner said that there could be a mediation and some time should be granted to his wife for introspection. In fact, the wife of the petitioner has left her parental home to join the 2 nd respondent. We also called the 2nd petitioner and his wife into the chambers. They informed us that their daughter had not informed them about her decision.
5. In the totality of the circumstances, we are of the opinion that the matters regarding custody and divorce have to be left to the Family Court. However, taking the special needs of the child into consideration, we were of the opinion that some interim arrangements should be made regarding his custody. We indicated to the 1 st petitioner and his wife that considering the tender age of the child, for the time being the custody should be with the mother. But the father ought to have association and he can be allowed to take the child for the weekends. The mother of the child did not have any objection, subject to the condition that if the child has any problem, he should be brought back immediately. The mother apprehends that the child may not be comfortable W.P(Crl) No.197/2021 - 5 - overnight, without her presence. The mother specifically told us that the child is most comfortable with herself and then with the maternal grandmother. We asked the maternal grandparents of the child, who were present before us, whether they would have any problem in the son-in-law staying with them during the week ends. The grandparents said, they were only happy to accommodate their son-in-law and their grandchild. The parties agreed that an interim arrangement can be made on the lines suggested by us. We implead the wife, the alleged detenue as the additional fourth respondent as given below:
"Sheeba Anand, D/o.Sadanandan V., Premnivas, Blayil Road, Eroor South, Eroor P.O., Tripunithura-682 306"
6. As an interim measure, with the agreement of the parties, we direct that the mother of the child will have the custody of the child during the week days and the father during weekends. The father will pick-up the child from the residence of the 2nd respondent, where the mother and child are now residing, on every Friday afternoon between 3 p.m. and 5 p.m. He would have the custody of the child till Sunday evening. Before 5 p.m. on Sunday evening, the 1st petitioner shall return the child to the mother. The 1st petitioner is free to take the child either to his own house or to the house W.P(Crl) No.197/2021 - 6 - of his in-laws, during the time he has the custody of the child. With respect to permanent custody, the parties are free to approach the jurisdictional Family Court and the Family Court would consider the matter on the evidence led; untrammeled by the arrangements we made or the reasoning behind that. We make it clear that the mother, who is impleaded as the 3rd respondent here will ensure that the child is not taken out of the State without the consent of the 1 st petitioner and if there is any change of residence it will be intimated to the 1st petitioner.
7. Before leaving the matter, we cannot but appreciate the 1st petitioner for having attempted to save his marriage especially considering the special needs of the child and we can only hope, for the benefit of the child, that wiser counsel prevails on the mother too.
The writ petition would stand disposed of.
Sd/-
K.VINOD CHANDRAN, JUDGE Sd/-
ZIYAD RAHMAN A.A.,
JUDGE
sp/01/09/2021
//True Copy// P.A. To Judge
W.P(Crl) No.197/2021 - 7 -
APPENDIX OF WP(CRL.) 197/2021
PETITIONERS' EXHIBITS:-
Exhibit P1 THE TRUE COPY OF THE MARRIAGE CERTIFICATE OF
THE 1ST PETITIONER AND THE DETENUE ISSUED FROM THE SHORNUR MUNICIPALITY DATED 29/05/2012.
Exhibit P2 THE TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM THE GREAT WESTERN HOSPITAL, SWINDON, UK.
Exhibit P3 THE TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE 1ST PETITIONER.
Exhibit P4 THE TRUE COPY OF THE RELEVANT PAGES PASSPORT OF THE 1ST DETENUE.
Exhibit P5 THE TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE 2ND DETENUE.
Exhibit P6 THE TRUE COPY OF THE FIR IN CRIME NO.514 OF 2021 OF THE SHORANUR POLICE STATION, PALAKKAD DATED 31/07/2021.