Nirmal Rema Das vs The Director General Of Police
2021 Latest Caselaw 1013 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                   &

                 THE HONOURABLE MRS. JUSTICE M.R.ANITHA

    TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                         WP(Crl.).No.96 OF 2020


PETITIONER/S:

                NIRMAL REMA DAS
                AGED 31 YEARS
                S/O. HARI DAS, RESIDING AT CELOSIA HOUSE, VANDAMATTAM
                PO, THODUPUZHA, IDUKKI DISTRICT-685 582 NOW RESIDING
                AT, 1ST FLOOR EADEN, MUNDAMPALAM ROAD, THRIKAKARA,
                KAKKANAD, ERNAKULAM-682 021.

                BY ADVS.
                SRI.T.B.SHAJIMON
                SMT.GOVINDU P.RENUKADEVI

RESPONDENT/S:

      1         THE DIRECTOR GENERAL OF POLICE
                POLICE HEAD QUARTERS, VAZHUTHACAUD,
                THIRUVANANTHAPURAM-695 014.

      2         THE COMMISSIONER OF POLICE
                KOCHI CITY-682 031.

      3         THE STATION HOUSE OFFICER
                THRIKKAKKARA POLICE STATION, KAKKANAD, ERNAKULAM-682
                020.

      4         AISHWARYA PRATHAPAN
                HAVING PASSPORT NO.H6112910, ADDRESS AT PER PASSPORT,
                ANNAMANADA PO, KALLUR THEKKUMURI VILLAGE LAST RESIED
                AT VB FLORA, FLAT NO.5B, THANAPADAM, KAKKANAD,
                ERNAKULAM-682 030

      5         KALA PRATHAPAN
                VALAVOOR HOUSE, ANNAMANADA P.O., THRISSUR-680 741.

      6         PRATHAPAN VALAVOOR
                VALAVOOR HOUSE, ANNAMANADA P.O., THRISSUR-680 741.
 WP(Crl.).No.96 OF 2020           2




       7       SWAPNA LEELADHARAN
               HARITHAM, KATADY LANE, MANAKUNNAM P.O.,
               UDAYAMPEROOR-682 307.

       8       SETHU LAKSHMI
               THRIPUNITHURA, ERNAKULAM-682 301.

       9       GIRIJAN VALAVOOR
               VALAVOOR HOUSE, ANNAMANADA P.O., THRISSUR-680741.

       10      THE REGIONAL PASSPORT OFFICER
               ERNAKULAM PASSPORT OFFICER, ERNAKULAM.

               R1-3 BY GOVERNMENT PLEADER
               R5-7 BY ADV. SMT.SANDHYA R.NAIR
               R5-7 BY ADV. SMT.V.A.HARITHA
               R8 BY ADV. SRI.B.RAMACHANDRAN
               R8 BY ADV. SRI.K.P.ARUN (CHERTHALA)
               R9 BY ADV. SRI.SHINU J.PILLAI
               R9 BY ADV. SMT.S.SUJA
               R9 BY ADV. SHRI.VINAYAK MOHANDAS
               R9 BY ADV. SHRI.MARIYA RAJAN
               R10 BY ADV. MR.P.VIJAYAKUMAR, SCGC

     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(Crl.).No.96 OF 2020              3




                                  JUDGMENT

Dated, this the 12th day of January, 2021

K.VINOD CHANDRAN, J.

Petitioner is before this Court seeking the

production of his minor child, who had been

entrusted to the permanent custody of his wife,

who is the 4th respondent herein. The arrangement

is said to be as per Ext.P1 agreement filed in

O.P.No.1215/2017. O.P.No.1215/2017 was a petition

for divorce on mutual consent, wherein the parties

had agreed to the terms, as seen from Ext.P1.

Proof affidavits were also filed by both parties

in accordance with the agreement. However, we

found that the same has not been recorded in the

order at Ext.P2.

2. Hence we called for the records of the

case from the Family Court, Ernakulam. Having

perused the same, we find that Ext.P1 is a part of

the record of the case. In such circumstances, it

ought to have been recorded that the parties have

agreed to settle the matter in accordance with the

terms of the agreement. The terms of the

agreement have not been recorded in the Judgment

passed at Ext.P2. We find from the records, proof

affidavits filed in consonance with the terms

agreed to in Ext.P1. The proof affidavits are

seen recorded by the Court below, by endorsment in

writing. In that context, we are of the opinion

that the learned Family Court Judge erred in so

far as not incorporating the terms of the

agreement in the judgment passed in

O.P.No.2377/2017.

3. The agreement was not only with respect

to the divorce which was on mutual consent, but

also on the other matters pending between the

parties, including the custody of the child. We

hence invoke our jurisdiction under Article 227

and direct the Family Court to incorporate the

terms of the agreement in Ext.P2, to which both

parties agree, by a separate order in accordance

with our directions. The same shall be done

without any further arguments being addressed by

the parties. We make it clear that the divorce and

the incorporation of the terms will be effective

from the date of Ext.P2 itself. This shall not in

any manner affect the consideration of the

Original Application filed by the petitioner for

guardianship of the child.

4. We see from Ext.P1 that the terms of

custody, as agreed mutually are specified in

paragraph 7, which is extracted below.

"The 2nd petitioner is ready to handover the custody of the child to the 1st petitioner on all the 2nd and 4th Saturday at 8 o' clock in the morning near the house of the 2nd petitioner and the 1st petitioner is to return the child before 6 o' clock on the same day. More over the 2nd petitioner should inform the 1st petitioner if she travel with minor child exceeding two weeks should agree with the 1st petitioner to consolidate the monthly twice visitorial right. The 2nd petitioner should inform all the major decisions regarding the welfare of the child to the 1st petitioner and in case of emergency immediate information should be done. When the child attain 4 years the visitorial rights of the child will be from 8 o' clock in the 2nd and 4th Saturday till next Sunday evening before 6 o' clock."

5. The child was hence directed to be handed

over to the petitioner father as per the terms,

near the house of the mother. As of now, the

mother is not in the country and she is said to be

studying in Germany. The child is in the custody

of the grand parents. The child also has been

removed from the State and is now residing at

Uduppi along with his grand parents. Learned

Counsel for the petitioner has a contention that

the grandfather is bed ridden and is unable to

travel, but however, that is not a reason for

violating the terms of the agreement as entered at

Ext.P1, especially when the wife has left the

country leaving the child with her parents, one of

whom is admittedly bed ridden. The child

necessarily has to have the company of the father.

6. After hearing both parties, we directed the

Counsels to get instructions as to how the child

can be brought back to the State and the

petitioner restored with the interim custody as

provided for in paragraph 7, for the time being.

On instructions, learned Counsel have given us

proposals of the parties based on which we issue

the following directions.

(i) The child as agreed, shall be brought

back to the State and be in residence

with the grandparents in Tripunithura;

the address of which residence shall be

furnished to the Family Court with a Memo

on production of the Child.

(ii) The child, shall be brought back to

the State on 16.01.2021 and shall be

produced before the Family Court on

18.01.2021 or if there is a quarantine

required, produced on 25.01.2021. The

passport of the child shall be

surrendered to the Family Court, since

once the respondent took the child out of

the country without the consent of the

petitioner or the Court. The Child shall

be produced at 1.45 p.m. before the

Family Court on the date specified and

also on every weekday from Tuesday to

Friday of that week. The Family Court

shall authorize an officer to ensure that

the father has the custody of the child

from 2 p.m to 4 p.m on all days in that

week.

(iii) The child shall not be taken out of

the premises of the Family Court, but

however, there shall not be any

supervision by the grandparents or any

relatives accompanying the child from the

mother's side. This shall be continued

till Friday.

(iv) On Friday evening, after interaction

with the parties, the Family Court shall

converse with the child and decide

whether the custody of the child can be

given to the petitioner for the week end.

(v) The further proceedings shall depend

on whatever terms the parties agree to or

wish to agitate before the Court, even by

way of any modification of the terms of

custody, considering the fact that the

mother is not in station.

(vi) The Family Court would conduct the

proceedings in accordance with law and

keeping in mind the dictum as laid down

by two Division Benches of this Court in

Sobhana Nair K.N. v/s Shaji S.G.Nair

2016(1) KHC 1 and Anilkumar v/s Roshana

Rajan 2017 KHC 3568.

7. We are told by learned Counsel for the 4 th

respondent that, in fact the 4th respondent has a

visa for the child also and she could take the

child to Germany and continue his studies there.

The 4th respondent has not attempted to do it only

because of the terms of the agreement entered

into. These are all matters which could be looked

into by the Family Court. We make it clear that

what has been recorded herein are only the rival

contentions of the parties and not in the nature

of any observation on merits of the claims raised

by either parties.

8. We are also told that there is a contempt

proceeding initiated for violating Ext.P3 order of

the Family Court directing the 4th respondent -

wife not to take the child abroad without the

written consent of the petitioner. Immediately on

the next day of the order, the child was taken out

of the country to Oman. The petitioner has not

seen the child after that. The learned counsel

also informs us that as of now, the petitioner is

not sure whether the child is in India at all and

the only contact with the child is through video

conferencing. In such circumstances, if the child

is brought back to Ernakulam as agreed to by the

parties, then we feel that the petitioner could

file a memo in the contempt proceedings for

withdrawal of the same. This is not in the nature

of a direction. However, we make it clear that

the same shall be done only after the child is

produced before the Family Court.

The W.P.(Crl) is disposed of accordingly.

Parties to suffer their costs.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA JUDGE uu 12.01.2021 //True Copy//

P.A. To Judge

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JOINT PETITION FILED BY THE PETITIONER AND 4TH RESPONDENT.

EXHIBIT P2 THE COPY OF THE DIVORCE ORDER.

EXHIBIT P3 THE COPY OF THE DIVORCE ORDER IN IA NO.3943/17 IN OP 2377/17 OF FAMILY COURT.

    EXHIBIT P4           A COPY OF THE COMPLAINT SUBMITTED BY
                         THE    PETITIONER   BEFORE  THE  2ND
                         RESPONDENT DATED 10.3.2020.

    EXHIBIT P5           A COPY OF THE COMPLAINT SUBMITTED BY
                         THE    PETITIONER   BEFORE  THE  3RD
                         RESPONDENT DATED 10.3.2020.

    RESPONDENT'S/S EXHIBITS:

    EXHIBIT R7(a):       A TRUE COPY OF THE FEES RECEIPTS OF THE

CHILD DATED 04/07/2019 AND 08/09/2020.

EXHIBIT R6(A) TRUE COPY OF THE PROOF AFFIDAVIT DATED 06.12.2017 SWORN BY THE PETITIONER IN OP 1215 OF 2018 BEFORE THE HON'BLE FAMILY COURT AT ERNAKULAM.

    EXHIBIT R6(B)        TRUE COPY OF THE AFFIDAVIT SWORN BY THE
                         PETITIONER     ALONG    THE     INTERIM

APPLICATION (IA NO.3943 OF 2017) IN OP NO.2377 OF 2017.