Aboobacker vs District Police Chief
2021 Latest Caselaw 1017 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.213 OF 2020


PETITIONER:

               ABOOBACKER, AGED 46 YEARS
               S/O. ALAVI, NADAKKAVIL HOUSE, P.O MAZHUVANNUR,
               VALANCHERRY, MALAPPURAM DISTRICT.

               BY ADVS.
               SRI.P.JAYARAM
               SRI.A.HAROON RASHEED

RESPONDENTS:

      1        DISTRICT POLICE CHIEF,
               PALAKKAD 678 001

      2        STATION HOUSE OFFICER,
               PATTAMBI POLICE STATION, PATTAMBI, PIN 679 303

      3        STATION HOUSE OFFICER,
               ALUVA POLICE STATION, ALUVA PIN 683102

      4        SEREENA, AGED 41 YEARS
               D/O. PALAKKAL MUHAMMED BASHEER, VILLA NO.38, TRINITY
               GARDEN, EAST DESOM, ALUVA 683102

      5        STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT
               OF HOME AFFAIRS, GOVT.SECRETARIAT, THIRUVANANTHAPURAM
               695 001

               R1-3,   R5 BY DIRECTOR GENERAL OF PROSECUTION
               R4 BY   ADV. SRI.SANTHOSH P.PODUVAL
               R4 BY   ADV. SMT.R.RAJITHA
               R4 BY   ADV. SRI.R.N.SANDEEP
               R4 BY   ADV. SMT.CHITHRA.S.BABU


               SENIOR GOVERNMENT PLEADER SRI.K.B.RAMANAND

     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(Crl.).No.213 OF 2020                2




                                    JUDGMENT

Dated, this the 12th day of January, 2021

K.VINOD CHANDRAN, J.

Petitioner is before this Court alleging violation of

the conditions of the agreement, produced at Ext.P1. The

settlement was entered into in an O.P filed for return of

gold ornaments and money entrusted with the husband at the

time of marriage. The parties agreed that the three minor

children will be in the permanent custody of the father,

the petitioner herein. The mother will have the custody of

the children during the 2nd and 4th week ends and for a

period during the vacations. Children were to be picked up

from the house of the petitioner and returned as provided.

While this was being continued, after the children were

taken custody of by the respondent during the mid-summer

vacation in 2020, the children were not returned. The

respondent also filed an application before the Family

Court, Thrissur, at Ext.P2, for modification of the terms

of the agreement.

2. The specific contention raised by the respondent

before the Court below was that the respondent had

remarried and the present wife has a son of 15 years of age

from her previous marriage. The minor children who are the

'subjects' of the petition at Ext.P2, are three girl

children. Learned Counsel for the petitioner however

refuted the said contention on the ground that, even at the

time of the mediated settlement, the petitioner had

remarried and the son of his wife was also present in his

house along with whom the three girl children were residing

happily.

3. It is trite that the arrangement for interim custody

or visitation rights can be modified if there is change in

circumstances. The Family Court would conduct the

proceedings in accordance with law and keeping in mind the

dictum laid down by two Division Bench 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. While the

respondent alleges that there is change in circumstances,

it is the specific contention of the petitioner that there

is no such change as discernible from the present facts and

circumstances. These are all matters to be considered by

the Family Court in consideration of Ext.P2 petition.

4. In any event, we find that there is a clear

violation of the terms of the agreement, before an order is

passed by this Court in the respondent's petition which

violation is on account of a unilateral decision taken by

the respondent wife. We are not happy with the same. In

such circumstances, we direct that the children be produced

before the Family Court, Trissur, on 25.01.2021 at 1.45

p.m. The children shall be handed over to the father as

per the terms of the agreement, in the presence of an

officer of the Family Court, authorized by the Judge. The

petition shall then be taken up by the Family Court and the

same shall be considered in accordance with law. We make it

clear that, what has been recorded herein are only the

rival contentions of the parties and does not amount to any

observation on merits, which the Family Court shall have

the jurisdiction to decide with reference to the issue of

custody, in accordance with law.

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

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 COPY OF THE DECREE DATED 17-2-2018 IN OP NO.

722/2016, ON THE FILES OF FAMILY COURT, THRISSUR

EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A NO. 2/2020 IN O.P NO. 722/2016, ON THE FILES OF FAMILY COURT, THRISSUR

EXHIBIT P3 TRUE COPY OF THE SUMMONS TO APPEAR ISSUED TO THE PETITIONER HEREIN FROM FAMILY COURT, THRISSUR IN I.A NO. 2/2020 IN O.P NO.

722/2016

EXHIBIT P4 TRUE COPY OF THE INVOICE/RECEIPT DATED 8-06-

2020 ISSUED TO THE PETITIONER FROM MES INTERNATIONAL SCHOOL, PATTAMBI WITH RESPECT TO THE PAYMENT FOR THE VALUE OF BOOKS PURCHASED FOR PETITIONERS DAUGHTER SHEZA NADAKKAVIL

EXHIBIT P5 TRUE COPY OF THE INVOICE/RECEIPT DATED 11-

06-2020 ISSUED TO THE PETITIONER FROM MES INTERNATIONAL SCHOOL, PATTAMBI WITH RESPECT TO THE PAYMENT FOR THE VALUE OF BOOKS PURCHASED FOR PETITIONERS DAUGHTER ZUHA NADAKKAVIL.

EXHIBIT P6 TRUE COPY OF THE INVOICE/RECEIPT DATED 11-

06-2020 ISSUED TO THE PETITIONER FROM MES INTERNATIONAL SCHOOL, PATTAMBI WITH RESPECT TO THE PAYMENT FOR THE VALUE OF BOOKS PURCHASED FOR PETITIONERS DAUGHTER ZAFRA NADAKKAVIL.

EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 25-09-2020 FILED BY THE PETITIONER BEFORE THE STATION HOUSE OFFICER, PATTAMBI POLICE STATION ON THE MISSING OF PETITIONERS DAUGHTER ALONG WITH ITS E-MAIL SCREEN SHOT DATED 26-09-2020

EXHIBIT P8 TRUE COPY OF THE MEDICAL PRESCRIPTION DATED 06-10-2011 ISSUED TO THE 4TH RESPONDENT BY THE PSYCHIATRIST, DR. E. MOHAN DAS.

EXHIBIT P9 TRUE COPY OF THGE MEDICAL PRESCRIPTION DATED 18-11-2011 ISSUED TO THE 4TH RESPONDENT BY THE PSYCHIATRIST , DR. E. MOHAN DAS.