Jane Mariam Mathew vs The District Police Chief
2021 Latest Caselaw 15051 Ker

W.P.(Crl.).No.180/2021                     1



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                       &
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                          WP(CRL.) NO. 180 OF 2021
PETITIONER/S:

              JANE MARIAM MATHEW, AGED 34 YEARS,
              KADAVIL PEEDIKAYIL HOUSE,
              PUTHENCAVU P.O, CHENGANNUR, ALAPPUZHA.

              BY ADVS.
              RAJESH VIJAYAN
              SIKHA S.NAIR


RESPONDENT/S:


                 THE DISTRICT POLICE CHIEF,
       1         KOCHI CITY, ERNAKULAM, PIN - 682 005.

       2         STATION HOUSE OFFICER,
                 THRIKKAKKARA POLICE STATION,
                 KAKKANAD, PIN - 682 054.

       3        MARTIN GEORGE, AGED 35 YEARS,
                ROSE VILLA, KULAYETTIKKARA P.O,
                ARYANKAVU, AMBALLOORR, ERNAKULAM - 682 315.
              SENIOR GOVERNMENT PLEADER SRI.K.B.RAMANAND


       THIS    WRIT      PETITION   (CRIMINAL)   HAVING   COME   UP   FOR
ADMISSION ON        16.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.P.(Crl.).No.180/2021                   2



                                 JUDGMENT

Ziyad Rahman A.A., J.

The petitioner filed this writ petition praying for issuance of a

writ of habeas corpus directing the respondents to produce the

alleged detenu, Immanuel Martin, aged 8 years, who is allegedly in

illegal detention of the 3rd respondent.

2. The 3rd respondent was the husband of the petitioner

and their marriage was solemnized on 11.06.2012. In the said

wedlock, a son namely Immanuel Martin was born and he is aged 8

years now. Due to certain disputes between the spouses, the 3 rd

respondent filed O.P.No.2903 of 2018 before the Family Court,

Ernakulam, seeking dissolution of their marriage. The matrimonial

disputes were settled during the course of pendency of the original

petition, as evidenced by Ext.P2 judgment dated 03.01.2020 and

the marriage between the parties were dissolved. In the

compromise petition, seen to have been submitted before the

Family Court, the conditions regarding the custody of the child are

also mentioned. As per the same, the permanent custody of the

child is given to the petitioner herein and the 3 rd respondent is

granted interim custody of the minor on two holidays on every

month and 50% of the days of Mid-summer, Onam and Christmas

vacations. The petitioner states that, on 25.06.2021, the 3 rd

respondent had taken the minor boy along with him for four days

on the basis of the settlement agreement. The period of four days

was allowed by the petitioner by taking into account the number of

days permitted for the months of May and June, 2021 together.

Considering the understanding between the parties, the 3 rd

respondent was supposed to return the child on 29.06.2021

together. However, the 3rd respondent is not returning the child

and petitioner is not allowed to contact the child as well. At the

moment she is not aware of the whereabouts of the child and this

writ petition is filed in the above circumstances.

3. On perusal of the records, it can be seen that basically

the dispute is relating to the custody of a minor child. It is true

that there was some understanding between the parties as

evidenced by the compromise petition produced before this Court.

However, the fact remains that, the child is at the moment with his

father and under normal circumstances, the said custody cannot be

termed as illegal, so as to warrant the issuance of a writ of habeas

corpus. In case, the petitioner has any grievance with regard to

the non-compliance of the terms of compromise agreement entered

into before the Family Court, it is for her to initiate appropriate

proceedings before the Family Court, Ernakulam as contemplated

under law. We cannot but notice that Ext.P2 judgment of the

Family Court is in a proceeding [O.P.No.2903 of 2018] for divorce

and Ext.P1 compromise is filed in another proceeding, O.P.No.451

of 2018; presumably a proceeding initiated for custody. The result

of the said proceeding is not disclosed. We are of the view that the

writ petition under Article 226 for issuance of writ of habeas

corpus is not an appropriate remedy.

As this is a dispute between a father and mother relating to

the custody of their child, we are of the view that appropriate

remedy for the petitioner is to approach the Family Court. In such

circumstances, the writ petition is dismissed without prejudice to

the rights of the petitioner to invoke appropriate remedies before

the appropriate forum.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

ZIYAD RAHMAN A.A., JUDGE DG/16.07.21

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE COMPROMISE PETITION FILED BY THE PETITIONER AND 3RD RESPONDENT JOINTLY DATED 22.12.2018.

EXHIBIT P2               TRUE COPY OF THE JUDGMENT IN
                         O.P.NO.2903/2018 DATED 03.01.2020.

EXHIBIT P3               TRUE COPY OF THE COMPLAINT DATED
                         07.07.2021 FILED BY THE PETITIONER.