Shine.S vs The Station House Officer
2021 Latest Caselaw 16520 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                   &
            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                        WP(CRL.) NO. 195 OF 2021
PETITIONER/S:

           SHINE.S
           AGED 40 YEARS
           S/O. SADASIVAN, GOURI NIVAS, PORUNTHAMAN, PULIMATH P.O.,
           KILIMANOOR, THIRUVANANTHAPURAM.

           BY ADV K.S.PRAVEEN


RESPONDENT/S:

    1      THE STATION HOUSE OFFICER
           MUHAMMA POLICE STATION, ALAPPUZHA DISTRICT, PIN-688 525.

    2      THE DISTRICT POLICE CHIEF
           OFFICE OF THE DISTRICT POLICE CHIEF, ALAPPUZHA DISTRICT,
           PIN-688 001.

    3      DHANYA V.D.
           AGED 36 YEARS
           D/O. VASUNDARA, CHIRAYIL HOUSE, ARYAKKARA, MUHAMMA P.O.,
           ALAPPUZHA DISTRICT, PIN-688 525

    4      JAFAR
           AGED 42 YEARS
           CHIRAYIL HOUSE, ARYAKKARA, MUHAMMA P.O., ALAPPUZHA
           DISTRICT, PIN-688 525.



           SENIOR GOVERNMENT PLEADER SRI.T.K.SHAJAHAN

     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
     ON   05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 W.P.(Crl.).No.195/2021                 2




                              JUDGMENT

Ziyad Rahman A.A., J.

The petitioner filed this writ petition praying for issuance of

a writ of habeas corpus directing the 1 st and 2nd respondents to

produce the body of 'Gourinanda' and 'Goutham Krishna', who

are aged 10 and 6 years respectively before this Court and set

them at liberty. The alleged detenus are his children born in the

wedlock with the 3rd respondent.

2. It is his case that, the marriage between him and the 3 rd

respondent was solemnized on 21.03.2010 and two children

named above were born in the said wedlock. The 3 rd respondent

lived in the matrimonial home until 19.05.2020, on which date,

she left for her parental house by stating that she had to take

care of his ailing mother. Thereafter, she resided there and the

petitioner used to visit her in her parental house. It is further

stated by him that, during 2nd week of July, 2021 he came to know

that the 4th respondent had taken his wife and children to

Alappuzha. Even though, the petitioner attempted to contact her,

the 4th respondent did not permit him to do so. In connection with

the same, he has already submitted Ext.P1 complaint before the

1st respondent. In such circumstances, he submits that the

children are under illegal detention of the 3 rd and 4th respondents.

It is also to be noted in this regard that, he states about litigations

pending between the petitioner and the 3 rd respondent before

various courts, but no details of the same have been revealed.

3. On going through the averments made in the writ

petition and after hearing the learned counsel for the petitioner,

the crucial aspect we could notice is that, absolutely nothing is

made out as to the necessity for issuance of a writ of habeas

corpus. It is discernible from the records that, basically it is a

dispute between the spouses as to the custody of the children.

Even though, the petitioner mentioned about the litigations which

are allegedly pending between the petitioner and the 3 rd

respondent before various courts, absolutely no details of such

litigations have been mentioned in the writ petition. The fact that

the petitioner had admitted as to the existence of various

litigations between the parties, by itself is an indication that this is

a case of dispute regarding the custody of the children. The writ

of habeas corpus can be issued under Article 226 of the

Constitution of India, only if it is shown that the alleged detenus

are in illegal detention. Even going by the averments contained in

the writ petition, the children are in the custody of their mother.

Under no circumstances such custody can be treated as illegal,

unless sustainable reasons are shown to arrive at a different

conclusion. In this case, the writ petition does not reveal

existence of any such circumstances. In case the petitioner has

any claim as to the custody of the children, it is for the petitioner

to work out his remedies by invoking his rights before the Family

Court.

In such circumstances, we are not inclined to entertain this

writ petition and it is accordingly dismissed without prejudice to

the rights of the petitioner to invoke his appropriate remedies

claiming custody of his children. It is also made clear that the

judgment passed in this case shall not preclude the petitioner in

taking further steps in connection with Ext.P1 complaint

submitted before the 1st respondent and this will not also preclude

the 1st respondent from initiating appropriate action in accordance

with law on Ext.P1 complaint.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG/5.8.21

APPENDIX OF WP(CRL.) 195/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE PHOTOCOPY OF THE COMPLAINT DATED 21.7.2021.