Kerala High Court
Mohammed Anaz vs State Of Kerala on 11 January, 2021
1
WP(C).25220/2020, RPJJ.3/2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WP(C).No.25220 OF 2020(B)
PETITIONER/S:
MOHAMMED ANAZ, AGED 32 YEARS, S/O.CHATHANKOTTIL ABDULKHADER,
P.O.PILAKKAD, RAMANCHIRA DESOM, TARAVOOR VILLAGE, THALAPPILLI
TALUK, THRISSUR DISTRICT-680 584
BY ADVS.
SRI.LINDONS C.DAVIS
SMT.E.U.DHANYA
RESPONDENT/S:
1 STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 REVENUE DIVISIONAL OFFICE, CHENGANNUR, SH-10, MAVELIKKARA-
KOZHENCHERY ROAD, CHENGANNUR, ALAPPUZHA DT.689 121
3 DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, CIVIL STATION
WAD, ALAPPUZHA 680 012
4 DEPUTY SUPERINTENDENT OF POLICE
SUB DIVISIONAL POLICE OFFICE, KAYAMKULAM-690 502
5 STATION HOUSE OFFICER
KAREELAKULANGARA POLICE STATION, NAGIARKULANGARA-690 513
6 CHILD WELFARE COMMITTEE
ALAPPUZHA, REP. BY ITS CHAIRMAN, GOVERNMENT CHILDREN'S HOME,
MAYITHARA PO, CHERTHALA, ALAPUZHA-688 539
7 SULFATH @ SHALINI, AGED 29 YEARS, W/O.MOHAMMED ANAZ,
VIII/404,'ASHWATHY BAHAVANAM', PATHIYOORTHOTTAM WARD,
PATHIYOOR, P.O., PIN -690 508
R1 to R6 BY SRI.GOPINATHAN, SENIOR GOVERNMENT PLEADER
R7 BY ADV. SRI.M.KIRANLAL
R7 BY ADV. SRI.MANU RAMACHANDRAN
R7 BY ADV. SRI.R.RAJESH (VARKALA)
R7 BY ADV. SRI.T.S.SARATH
R7 BY ADV. SHRI.SAMEER M NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2021,
ALONG WITH RPJJ.3/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
WP(C).25220/2020, RPJJ.3/2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
RPJJ.No.3 OF 2020
REVISION PETITIONER/S:
SALINI @ SULFATH, AGED 29 YEARS
W/O.MUHAMMED ANAS, NOW RESIDING AT ASHWATHY, PATHIYOORTHOTTAM
WARD, PATHIYOOR P.O., ALAPPUZHA DISTRICT-690508.
BY ADVS.
SRI.MANU RAMACHANDRAN
SRI.M.KIRANLAL
SRI.R.RAJESH (VARKALA)
SRI.T.S.SARATH
SHRI.SAMEER M NAIR
RESPONDENT/S:
1 THE STATE OF KERALA REPRESETNED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF SOCIAL WELFARE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE CHILD WELFARE COMMITTEE,
ALAPPUZHA, GOVERNMENT CHILDREN'S HOME, MAYITHARA P.O.,
CHERTHALA, ALAPPUZHA-688539, REPRESENTED BY ITS CHAIRPERSON.
3 THE STATION HOUSE OFFICER,
POLICE STATION OF KAREELAKULANGARA, KAREELAKULANGARA P.O.,
ALAPPUZHA-690513.
4 MOHAMMED ANAZ,AGED 32 YEARS
S/O.ABDULKHADER, CHATHANKOTTIL(H), PILAKKAD P.O., RAMANCHIRA
DESOM, TARAVOOR VILLAGE, THALAPPILLI TALUK, THRISSUR-680584.
R4 BY ADV. SRI.LINDONS C.DAVIS
R4 BY ADV. SMT.E.U.DHANYA
R1 to R3 BY SRI.GOPINATHAN, SENIOR GOVERNMENT PLEADER
THIS REV.PETITION(JUVENILE JUSTICE) HAVING COME UP FOR ADMISSION ON
11.01.2021, ALONG WITH WP(C).25220/2020(B), THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
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WP(C).25220/2020, RPJJ.3/2020
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
WP(C)No. 25220 of 2020
and
R.P(JJ Act) No.3 of 2020
======================
Dated this the 11th day of January, 2021.
COMMON JUDGMENT
C.S DIAS, J.
As the parties are same and the dispute arises with
respect to the custody of the children, the writ petition
and revision petition are being disposed of by this common
judgment. The parties are, for the sake of convenience,
referred to as per their status in the writ petition.
2. The writ petition is filed by Mohammed Anaz- the
husband of the seventh respondent- Sulfath @ Shalini,
inter alia, seeking a direction to the respondents to
comply with Ext P3 (Annexure A7 in RP(JJ Act)) passed by
the Child Welfare Committee - the sixth respondent. The
revision petition is filed by the seventh respondent to
quash Ext P3 (Annexure A7) order.
WP(C).25220/2020, RPJJ.3/2020
3. The facts in the writ petition, in a nutshell, are
that the seventh respondent is the wife of the petitioner.
They were married on 26.2.2014. Two children named,
Muhammed Anzil and Muhammed Ajmal were born in the
wedlock. The older child Muhammed Anzil, who was 9
years, had an unnatural death on 12.11.2020. The seventh
respondent has alleged that it was a case of suicide, which
is unbelievable. After the birth of the children, the
relationship between the couple got strained. The seventh
respondent has lodged Crime Nos.521/2017 and 312/2018
before the Erumapetty Police Station against the
petitioner. The seventh respondent has also filed MC
395/2018 before the Family Court, Thrissur, seeking an
order of maintenance. The children were living with the
seventh respondent since 14.8.2018, from the date of
separation between the couple. Feeling apprehensive
about the welfare of the children, the petitioner has filed
G.O.P No.311/2019 before the Family Court, Thrissur,
seeking the permanent custody of the children. On
12.11.2020, the petitioner got the shocking news that his
WP(C).25220/2020, RPJJ.3/2020
older son committed suicide. He rushed to the spot and
found that the seventh respondent was attempting to
cremate the child. With the intervention of the Police, a
postmortem was conducted. The petitioner lodged Ext P2
complaint before the sixth respondent regarding the death
of his son. The sixth respondent directed the Police to
hand over the dead body of the older child and the custody
of the younger child to the petitioner. However, the
Police were reluctant to act on the orders of the sixth
respondent. The continuation of the custody of the
younger child with the seventh respondent would be
dangerous to the well being of the child. Hence, the
petitioner had submitted Ext P4 complaint before the
respondents 3 and 4 to implement the orders of the sixth
respondent. In light of Sec.27(9) of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (In short "the
Act") the sixth respondent is a Judicial Magistrate of the
First Class. The Committee has the power to exclusively
deal with the matters under the Act. By virtue of
Sec.30(vi) of the Act, the sixth respondent has to ensure
WP(C).25220/2020, RPJJ.3/2020
care, protection and rehabilitation and restoration of
children. Hence, the respondents 2,3,4, 5 and 7 may be
directed to comply with the directions of the sixth
respondent.
4. When the writ petition came up for consideration
on 20.11.2020, this Court admitted the writ petition and
directed the custody of the younger child to be entrusted
to the Child Welfare Committee - the sixth respondent.
The petitioner and the seventh respondent were
permitted to visit the child.
5. The seventh respondent has filed a counter
affidavit, inter alia, contending that Ext P3 order passed
by the sixth respondent is unsustainable in law. The sixth
respondent has overreached its jurisdiction. The
petitioner was an abusive husband as a result of which the
seventh respondent has lodged complaint before the
Police, pursuant to which crime Nos 521/2017 and
312/2018 have been registered. The seventh respondent
has also filed MC 395/2018 before the Family Court,
Thrissur. The petitioner has filed GOP No.311/2019
WP(C).25220/2020, RPJJ.3/2020
seeking custody of the children. Thereafter, the seventh
respondent and children have filed MC(DV) 8/2019 before
the Judicial First Class Magistrate, Wadakkanchery.
Interim protection orders have been passed in favour of
the seventh respondent and children. The seventh
respondent is working at Thrissur. On 4.11.2020, while
she went to see her lawyer, for the purpose of filing an
execution petition for realising arrears of maintenance,
the older child was not picking up the telephone calls. It
was then that she learnt that her older son was taken to
hospital and was declared dead. The Station House
Officer, Kareelakulangara Police Station- the fifth
respondent registered crime No.941/2020 under Sec.174
of Cr.P.C. The investigation is in progress. The seventh
respondent was in no way involved in the death of the
older child. Ext P3 order passed by the sixth respondent
is without any basis. The petitioner was unable to take the
children along with her due to her financial difficulties and
also due to the COVID-19 situation. Ext P3 order was
passed without hearing the seventh respondent. The
WP(C).25220/2020, RPJJ.3/2020
sixth respondent has assumed the jurisdiction of the
Family Court, which was seisin of the matter. The Police
after investigation have filed a report before the second
respondent stating that the death of the child was caused
while he was imitating to hang himself. The seventh
respondent has filed RP(JJ Act) 3/2020 impugning Ext P3
on the very same grounds as raised in the counter affidavit
in WP(C) 25220/2020. This Court has stayed the operation
of Ext P3 order. Hence, the writ petition seeking
implementation of Ext P3 may be dismissed.
6. Heard the learned counsel appearing for the
petitioner, the learned Government Pleader appearing for
the respondents 1 to 6 and the learned counsel appearing
for the seventh respondent.
7. It is an undisputed fact that even prior to the
death of Muhammed Anzil - the older child of the
petitioner and the seventh respondent - the marital
relationship between the couple was strained. The
seventh respondent has already approached the Family
Court, Thrissur and filed MC 395/2018. The petitioner has
WP(C).25220/2020, RPJJ.3/2020
also approached the same Court and filed GOP 311/2019,
seeking custody of the children. The seventh respondent
has also filed MC (DV)8/2019 before the jurisdictional
Magistrate, invoking the provisions of the Protection of
Women from Domestic Violence Act and lodged crime Nos
521/2017 and 312/2018 before Erumapetty Police Station.
8. It is during the pendency of the above litigations,
that the older child of the couple met with the tragic
death. The fifth respondent has registered crime
No.941/2020 in connection with the death of the child,
and the investigation is in progress.
9. It was on the death of the older child and on the
basis of the complaint lodged by the petitioner with the
sixth respondent, that the sixth respondent passed Ext P3
order, directing the dead body of the older child to be
handed over to the petitioner and the interim custody of
the younger child also to be given to him. However, this
Court by order dated 20.11.2020 in the writ petition
directed the sixth respondent to take custody of the
younger child, reserving the visitation rights of both the
WP(C).25220/2020, RPJJ.3/2020
parents to see the child. Nevertheless, a Division Bench
of this Court by order dated 2.12.2020 in the revision
petition stayed the operation of Ext P3(Annexure A7),
whereby the custody of the younger child continues to be
with the seventh respondent.
10. Going by the scheme of the Juvenile Justice (Care
and Protection of the Children) Act, the primary objective
of the enactment is to restore the care and protection of
the child to its parents. In light of the order passed by
this Court on 2.12.2020 and subsequently on 18.12.2020,
the custody of the younger child is with the seventh
respondent. Moreover, the proceedings before the Child
Welfare Committee is only summary in nature to deal with
situations of children in need of care and protection.
11. In light of the orders passed by this Court in the
writ petition and the revision petition, we are of the
considered opinion that, Ext P3 order (Annexure A7)
passed by the sixth respondent has fallen into pale of
insignificance. Therefore, we are of the view that, as GOP
311/2019 is pending consideration before the Family
WP(C).25220/2020, RPJJ.3/2020
Court - the competent Court to decide regarding the
custody of the younger child, it is for the Family Court to
consider and decide as to which parent is entitled to have
the permanent custody of the child, and also the other
parent's entitlement to have interim custody, access,
visitation and contact rights over the child. The parties
are at liberty to file appropriate applications in GOP
311/2019, which shall be considered by the Family Court,
in accordance with law, untrammeled by any observation
made by this Court or the Child Welfare Committee, only
keeping in mind the paramount welfare and best interest
of the child. We also make it clear that the investigation
in connection with crime No.941/2020 shall be conducted
by the Police, in accordance with law, and the final
report/charge-sheet shall be filed before the jurisdictional
Court, dehors any observation made by the sixth
respondent.
In the result, the writ petition and revision petition
are disposed of by closing all further proceedings
pursuant to Ext P3 order (Annexure A7), without prejudice
WP(C).25220/2020, RPJJ.3/2020
to the rights of the petitioner and the seventh respondent
to move appropriate application before the Family Court,
Thrissur in GOP 311/2019, seeking for the interim custody,
access, visitation and contact rights of the child, which
shall be considered by the Family Court, as expeditiously
as possible.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
Sks/11.1.2021 JUDGE
WP(C).25220/2020, RPJJ.3/2020
APPENDIX OF WP(C) 25220/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A COPY OF THE COMPLAINT SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT, DATED
13.11.2020 ALONG WITH RECEIPT
EXHIBIT P2 A COPY OF THE COMPLAINT SUBMITTED BEFORE THE
CHILD WELFARE COMMITTEE (CWC), DATED
13.11.2020
EXHIBIT P3 A COPY OF THE ORDER OF THE CWC DATED
13.11.2020
EXHIBIT P3 (A) A LEGIBLE RETYPED COPY OF EXHIBIT P3
EXHIBIT P4 A TRUE COPY OF THE COMPLAINT ALONG WITH
RECEIPT ISSUED FROM THE OFFICE OF THE 3RD
RESPONDENT
WP(C).25220/2020, RPJJ.3/2020
APPENDIX OF RPJJ 3/2020
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE TRUE COPY OF THE BIRTH CERTIFICATE OF
MUHAMMED ANZIL C.M.
ANNEXURE A2 THE TRUE COPY OF THE BIRTH CERTIFICATE OF
MUHAMMED AJMAL C.M.
ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 30.06.2020
IN M.C.NO.595/2018 ON THE FILES OF FAMILY
COURT, THRISSUR.
ANNEXURE A4 THE TRUE COPY OF THE ORDER DATED 08.02.2019
IN CMP.NO.754/2019 IN MC(DV)NO.8/2019 ON
THE FILES OF JFMC, WADAKKANCHERY.
ANNEXURE A5 THE TRUE COPY OF THE CASE STATUS OF O.P.
(G&W)NO.311/2019 ON THE FILES OF THE FAMILY
COURT, THRISSUR.
ANNEXURE A6 THE TRUE COPY OF THE FIR REGISTERED AS
CRIME NO.941/2020 OF POLICE STATION OF
KAREELAKULANGARA, ALAPPUZHA.
ANNEXURE A7 THE TRUE COPY OF THE DIRECTION NIL DATED
ISSUED BY THE 2ND RESPONDENT TO THE 3RD
RESPONDENT IN THE MATTER OF UNNATURAL DEATH
OF MUHAMMED ANZIL.
