IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(CRL.) NO. 479 OF 2022
PETITIONER:
SIJI CHANDRAN, AGED 40 YEARS, S/O.BALACHANDRAN PILLAI,
CHOOLATTU VEEDU, ERICHIKKAL, MANIYAT P.O., PUNALUR,
KOLLAM DISTRICT 689 662.
BY ADVS.
M.KABANI DINESH
S.R.REMYA
RESPONDENTS:
1 STATION HOUSE OFFICER, PUNALUR POLICE STATION,
KOLLAM 691 305.
2 DISTRICT SUPERINTENDENT POLICE (RURAL),
KOTTARAKKARA, KOLLAM 691 506.
3 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM 695 024.
4 HONEYMOL M.K., AGED 30 YEARS
D/O.KRISHNAVENI AMARAVATHI (14/597), CHEMBANKODE,
EDAVATTOM P.O., THIRUVANANTHAPURAM 695 562.
* 5 KRISHNAVENI. L., D/O.CHELLAPPAN PILLAI,
AMARAVATHY, CHEMPANCODE, KOTHAKULANGARA,
ELAVATTOM P.O., THIRUVANANTHAPURAM-695 562.
* 6 THE CHILD WELFARE COMMITTEE, BEACH ROAD,
PALLITHOTTAM, THAMARAKULAM, KOLLAM-691 001.
* ADDL. R5 & R6 ARE SUO MOTU IMPLEADED AS PER ORDER
DATED 14/07/2022
BY ADV SREEJITH S.
BY SRI.E.C.BINEESH, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP Crl No.479/2022 2
K.VINOD CHANDRAN & C.JAYACHANDRAN,JJ
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W.P.(Crl.) No.479 of 2022
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Dated this the 10th day of August, 2022
JUDGMENT
Vinod Chandran, J.
The petitioner sought production of his minor child, who is admittedly in the custody of the mother, the 4th respondent. According to the petitioner, there were marital discords and the petitioner and the 4th respondent were estranged. The 4th respondent had initiated proceedings under the Domestic Violence Act, an order, in which was challenged by the petitioner before the Sessions Court. Pending proceedings, the disputes were amicably settled and monetary claims were also satisfied as per Ext.P1 compromise settlement, by which the petitioner was granted visitation rights of his daughter. There was also a maintenance of Rs.4,500/-, which the petitioner had to pay the 4th respondent. There was an agreement to file a joint petition for divorce, which has not WP Crl No.479/2022 3 materialized, allegedly due to the non-cooperation of the 4th respondent.
2. The petitioner was employed in Dubai and the 4th respondent in the UAE. The child, whose permanent custody was with the 4th respondent, was left in the care of the maternal grandmother. The petitioner, on coming back to India on leave, approached the house of the 4th respondent to enforce his visitation rights. However, the house was locked and the neighbors did not have any idea about the whereabouts of the child. It was hence he approached this Court seeking a writ of habeus corpus. We directed the child to be produced before the DLSA, Thiruvananthapuram, on 03.06.2022, by order dated 01.06.2022.
3. On 03.06.2022, our direction was complied with and the petitioner also interacted with the child. The 4th respondent came online and interacted with us. We allowed the child to have the company of the father till 1.30 p.m., since the petitioner submitted before us that he is leaving on the 5th and WP Crl No.479/2022 4 sought interim custody of the child for two days. When we interacted with the child, the child was seen bonding with the father and was willing to go with the father. We directed the DLSA, Thiruvananthapuram to send the child with the father for two days with the further direction that the child shall be entrusted back to the maternal grandmother on the 5th before 5 p.m.
4. On 06.06.2022, again the matter came before us, when it was submitted by the petitioner that on attempting to return the child, in compliance of the directions of this Court, there was a wordy altercation, where the maternal grandmother insisted that before handing over, the child should be subjected to a medical examination. According to the learned Counsel for the 4th respondent, there was some altercation between the maternal and paternal grandparents. In any event, since the father was going abroad, we directed that the father will be allowed to communicate with the child every day at 8 O'Clock Indian time and we also directed the maternal WP Crl No.479/2022 5 grandmother to comply with the directions.
5. On 14.06.2022, again the matter came up before us, when it was submitted that the father has extended his leave and he is continuing in the State. Hence we directed that the father be granted custody during the weekends, which was agreed to by the learned Counsel appearing for the 4th respondent. We directed that the father would pick up the child at 5 p.m on Friday and drop her back before 5 p.m on the coming Sunday, in accordance with the order by the Sessions Court, in an appeal from the order under the Domestic Violence Act. The learned Counsel who appeared for the 4th respondent, when the 4th respondent also appeared before us in the digital platform, informed us that suitable instructions will be given to the maternal grandparents. The petitioner again moved the case on the ground that he is residing in Kollam and the maternal grandparents at Thiruvananthapuram. In fact we had directed that the child will not be taken out of the jurisdiction of the Thiruvananthapuram on weekends. We modified the said WP Crl No.479/2022 6 order and directed that the child shall not be taken out of the Districts of Thiruvananthapuram and Kollam.
6. On 14.07.2022, the matter was pre-poned on the submission made by the learned Counsel for the 4 th respondent that the child is sick with fever. We heard both parties and after recording the name of the Doctor, who is treating the child, directed that the father will ensure medical consultation. It was also brought to our notice that there was resistance in handing over the child as per our directions, which prompted the petitioner to approach the Child Welfare Committee, Kollam, in which Ext.C1 order was passed, directing the child to be kept with the father for the maximum period. We were of the opinion that the said order would amount to interference with the orders passed by us. We suo motu impleaded the "Child Welfare Committee, Kollam" and directed them to file a report. The report is filed with an apology, which we accept. We note the submission of the Child Welfare Committee that the petitioner, though had mentioned about the writ petition, had not specifically appraised them WP Crl No.479/2022 7 about the interim order passed by us. We also reckon the fact that the Child-Line, Kollam had inquired into the complaint and also interacted with the child by report dated 03.07.2022. The result of the interaction was stated to be that the child wants the company of the petitioner, based on which the Child Welfare Committee passed the order. It is also stated that before the orders were passed, the child was subjected to a counseling by a Grade Psychologist by name Arya Raj G. We find that the report is relevant insofar as deciding upon the interim custody of the child.
7. As of now the mother is working abroad and the father, who was also working abroad, is now permanently residing in his native place and there is an application filed for custody before the Family Court, Kottarakkara numbered as O.P.(G&W) No.106 of 2022.
8. Considering the overall circumstances and also the attempt of the maternal grandparents to somehow frustrate the orders passed by this Court, we are of the opinion that the child can be continued in WP Crl No.479/2022 8 the company of the father for the present, as long as he is in station. We also reckon the report of the Child Welfare Committee. The child shall not be taken out of the Country without the permission of the Family Court and if the father intends to go abroad, he shall intimate the fact to the Family Court. The Family Court shall then consider as to whether the custody, when both the parents are abroad, can be given to either the maternal or the paternal grandmother. As of now, the child shall remain in the custody of the father, especially since the mother is abroad and on the mother reaching India, could always approach the Family Court for interim custody. We make it clear that the above direction to continue the custody with the father is only on the special circumstances arising herein. On any of the contingencies above referred arising, the Family Court would be entitled to consider the question of interim custody of the child, untrammeled by the observations herein. In the peculiar circumstance of this case, we also direct the respective grandmothers be impleaded WP Crl No.479/2022 9 in the O.P.(G&W), who will have a say before the Family Court, only when both the parents are abroad. The child shall be facilitated regular communication with the mother on the digital platform at a suitable time agreed upon between the parties.
The writ petition is disposed of.
Sd/-
K. VINOD CHANDRAN, JUDGE Sd/-
C. JAYACHANDRAN, JUDGE sp/11/08/2022 WP Crl No.479/2022 10 APPENDIX OF WP(CRL.) 479/2022 PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE COMPROMISE AGREEMENT DTD 26.2.2020 EXECUTED BY THE PETITIONER AND THE 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 29.05.2022 ISSUED BY THE OFFICE OF THE STATION HOUSE OFFICER, PUNALUR.
COURT EXHIBIT C1 THE ORDER OF THE CHILD WELFARE COMMITTEE DATED 05.07.2022