Unknown vs By Adv. Sri.P.Jinish Paul
2021 Latest Caselaw 2345 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                              &

           THE HONOURABLE MRS. JUSTICE M.R.ANITHA

THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                   WP(Crl.).No.104 OF 2020


PETITIONER

              DR. SYED HAYATH BASHA
              AGED 37 YEARS
              S/O. SYED HASSAN PEER SAHEB,
              RESIDING AT STAFF QUARTERS NO. 8, ALIGARH
              MUSLIM UNIVERSITY, MALAPPURAM CENTRE,
              CHERUKARA P.O, PERINTHALAMANNA, MALAPPURAM
              679 340

              BY ADV. SRI.P.JINISH PAUL

RESPONDENTS

     1        STATE OF KERALA
              REPRESENTED BY ITS SECRETARY TO THE HOME
              DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM
              695 001

     2        THE SUPEREINTENDENT OF POLICE,
              OFFICE OF THE DISTRICT POLICE CHIEF, UP HILL
              POST, MALAPPURAM 676 505

     3        SUB INSPECTOR OF OF POLICE,
              PERINTHALMANNA POLICE STATION,
              PERINTHALMANNA, MALAPPURAM 679 340

     4        SHAIK MUHAMMAD SHAREEF,
              AGED 65 YEARS
              D NO 5-95A, JUPADU BUNGALAW (POST AND
              MANDALAM)
              KURNOOL, ANDRA PRADESH 518 401

     5        RABIYA BI,
              AGED 62 YEARS
              W/O. SHAIK MUHAMMAD SHARIEF, JUPADU BANGLAW
              (POST AND MANDALAM), KURNOOL, ANDRA PRADESH
 WP(Crl).104 of 2020
                                 2


                518 401



        6       SHAIK MUJIBUR RAHMAN,
                AGED 24 YEARS
                S/O. SHAIK MUHAMMAD SHARIEF, D. NO. 5-95A,
                JUPADU BUNGLAW (POST AND MANDIRAM) KURNOOL,
                ANDRA PRADESH 518 401


OTHER PRESENT:

                SENIOR GOVERNMENT PLEADER SRI.K.B.RAMANAND

     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 21.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(Crl).104 of 2020
                                    3




                                 JUDGMENT

                  Dated : 21st January,                2021

M.R.Anitha,J.

   1.This       writ   petition         has    been        filed      by   the

petitioner, father of the alleged detenue aged 2¾ years.

2.According to the petitioner, he had married the daughter of respondents 4 and 5 in the year 2017 and in that wedlock, a girl child was born on 2.3.2018. But the wife of the petitioner died on 4.6.2019 out of some disease. On the next day, the child was taken away illegally and forcefully by respondents 4 to 6 who are the father-in-law, mother-in-law and the brother-in-law respectively. So according to the petitioner, the minor child is in the illegal custody of respondents 4 to 6. Hence this petition has been filed seeking for production of the minor child from the illegal detention of respondents 4 to 6 and to hand over the custody of the child to the WP(Crl).104 of 2020

petitioner, father of the detenue.

3.Notice was issued to the respondents. The learned senior Government Pleader appeared on behalf of respondents 1 to 3. Service of respondents 4 to 6 was effected through paper publication. There was no appearance for them. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.

4.Petitioner, father of minor child, approached this Court seeking for a direction to respondents 1 to 3 to produce the minor daughter from the alleged illegal detention of respondents 4 to 6. The mother of child is no more. Admittedly respondents 4 to 6 are the father-in-law, mother-in-law and brother-in-law respectively. Parties are also governed by the Mahomedan Law. Chapter XVIII of Mulla on Principles of Mahomedan Law which deals with Guardianship of person and property is relevant in this context to be looked into. Sec.349 provides that all applications for appointment of a guardian of the person or property or both are to be made under the Guardians and Wards Act, 1890. Sec.353 which deals with right to WP(Crl).104 of 2020

female relations in default of mother, is relevant in this context to be extracted and it reads as follows :-

"S.353 - Right to female relations in default of mother- Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below :

(1) mother's mother, how highsoever; (2) father's mother, how highsoever; (3) full sister;

......................"

5.So as per the Mahomedan Law, in the absence of mother custody of the boy under the age of seven years and of a girl who has not attained puberty, preference is to the mother's mother. 5Th respondent herein is the mother's mother of the minor child of the petitioner. Legally the 5th respondent is entitled for the custody of the minor girl in the absence of her mother. So WP(Crl).104 of 2020

it cannot be found that the minor daughter of the petitioner who is only two years and 10 months is under the illegal custody of the 5 th respondent. So, we do not find any reason to entertain this writ petition filed by the father of the minor girl. It is open for the petitioner to move the appropriate Forum for redressal, if at all he needs custody or visitation rights of the minor child in accordance with law.

Sd/-

K.VINOD CHANDRAN Judge

Sd/-

M.R.ANITHA Judge Mrcs/21.1.

WP(Crl).104 of 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE BIRTH CERTIFICATE DATED 14-06-2018

EXHIBIT P2 THE TRUE COPY OF THE DEATH CERTIFICATE DATED 10-06-2019

EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PAGES OF FIR NO. 96/2019 OF JUPADU BANGALOW POLICE

EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT DATED 15-

10-2019 SUBMITTED BEFORE THE 3RD RESPONDENT

EXHIBIT P5 THE TRUE COPY OF THE REQUEST DATED 17-

10-2019 SUBMITTED BEFORE THE 2ND RESPONDENT

EXHIBIT P6 THE TRUE COPY OF THE RELEVANT PAGES OF FIR NO. 187/2019 OF JUPADU BANGALOW POLICE.