Kerala High Court
Xxx vs State Of Kerala on 4 March, 2021
WP(C).No.2643 OF 2021(E)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942
WP(C).No.2643 OF 2021(E)
PETITIONER/S:
XXX
AGED 40 YEARS
XXX
BY XXX(PARTY IN PERSON)
RESPONDENT/S:
1 STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT, HOME
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 STATE POLICE CHIEF/DIRECTOR GENERAL OF POLICE
KERALA POLICE HEAD QUARTERS, VAZHUTHACAUD,
TRIVANDRUM 695 010.
3 INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE,
MARINE DRIVE, ERNAKULAM PIN 682 031.
4 THE CHILD WELFARE COMMITTEE
ERNAKULAM DISTRICT, REP.BY ITS SECRETARY,
GOVERNMENT CHILDREN'S HOME, KAKKANADU, ERNAKULAM
682 030
GOVERNMENT PLEADER
OTHER PRESENT:
SMT.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
26.02.2021, THE COURT ON 04.03.2021 DELIVERED THE FOLLOWING:
WP(C).No.2643 OF 2021(E)
2
JUDGMENT
Dated this the 4th day of March 2021
The father of a 11 year old child has filed this writ Petition alleging
that the child is in the illegal custody of the 4th respondent- Child Welfare
Committee, Ernakulam. He also alleges that the 4th respondent is denying him
his right to meet and talk to his child without any reason, misusing and
abusing her official position.
2. Petitioner has stated that he had earlier approached this Court in
WP(C) No.30123 of 2017 alleging inaction on the part of the Child Welfare
Committee as well as the Kerala State Commission for Protection of Child
Rights on his complaint and that the said Writ Petition was dismissed and
that W.A.No.523 of 2018 filed by him against that judgment was also dismissed
as per Ext.P1 judgment taking note of the pendency of the litigation before
the Family Court between him and his wife. He has stated that Ext.P2
application filed by him on 02.11.2017 before the Family Court, Ernakulam in
O.P.(G&W) No.36 of 2017 is pending.
3. Petitioner has further stated that on 10.01.2020 the 4th respondent
had directed him to produce the child for counseling and on that day he was
informed that continuous counseling was not required. Petitioner states that
though he had informed them that the child should be taken to professional
counselors they discarded his request and kept the child in their custody.
4. In this Writ Petition filed on 27.01.2021 he has alleged that even
though four months lapsed the 4 th respondent is keeping the child with them
without assigning any reason and without permitting him or his sister to meet
the child. It is stated that even though his sister approached the 4 th
respondent and submitted Ext.P4 application on 23.03.2020 she was not
WP(C).No.2643 OF 2021(E)
permitted to meet the child and the child was not released.
5. It is stated that petitioner has submitted Ext.P3 petition before
the Chief Minister on 22.02.2020 regarding these incidents and the same was
forwarded to the 2nd respondent.
6. The entire allegations in the Writ Petition are to the effect that
the 4th respondent is retaining the child without authority.
7. The 4th respondent has filed a statement producing Annexure.R4(c)
order dated 29.07.2020 of the Family Court in I.A.No.1868/2020 in
O.P.No.1012/2020, by which the 4th respondent was directed to release the
child to the mother. The child is already released to the mother in tune with
the direction of the Family Court. The 4th respondent has also stated that the
child had given Annexure.R4(a) statement in her own handwriting where she has
denied the allegation raised by the petitioner and she has made it clear that
she does not even want to meet her father-the petitioner. The 4 th respondent
has explained the circumstances under which the child was taken custody by
them and also the circumstances under which the child was released to the
mother. The 4th respondent has also explained the action they have taken on
receipt of the request from the sister of petitioner.
8. Heard the petitioner who appeared in person through video
conferencing and also the learned Government Pleader. Eventhough the
petitioner was informed several times that a lawyer can be engaged for him
through Kerala State Legal Services Authority, he did not respond to the
same.
9. I have considered the pleadings on record and the contentions raised
by both sides.
10. Petitioner filed this Writ Petition after about six months of
Annexure.R4(c) order passed by the Family Court, alleging illegal custody of
the child with the 4th respondent i.e about 6 months after the 4 th respondent
released the child to her mother based on Annexure R4(C) order of the Family
Court by which the 4th respondent was directed to release the child to the
WP(C).No.2643 OF 2021(E)
mother. In case the petitioner has any grievance over the said order, it is
for him to take up the said order in appropriate proceedings.
11. From the pleadings on record, it is seen that an application for
dissolution of marriage as well as an application for custody are pending
before the Family Court. The statement as well as the documents produced by
the 4th respondent would show that the child did not want to meet the father
or the sister of the father when the child was in the custody of the 4 th
respondent. It would also show that 4th respondent has only acted in
accordance with the provisions contained in the Juvenile Justice Act and it
was only when the Family Court issued an order that the child was released to
the mother, though the 4th respondent had found that the child was a child in
need of care and protection under section 2(14)(v) of the Juvenile Justice
(Care&Protection of Children) Act, 2015. As the entire allegations are as
against the illegal custody of the child by the 4 th respondent and in the
counter affidavit, the 4th respondent has stated the circumstances under which
the CWC had taken custody of the child and also the circumstances under which
the petitioner's sister was not allowed to meet the child, I am of the view
that the petitioner does not deserve any relief from this Court. I am of the
view that the prayers sought by the petitioner would not be in furtherance of
the interest of the child.
In the circumstances, the petitioner does not deserve any of the
reliefs sought for in this Writ Petition. Accordingly, the Writ Petition is
dismissed. It is made clear that this judgment shall not in any manner
influence the adjudication of the cases pending before the Family Court
between petitioner and the mother of the child.
sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.2643 OF 2021(E)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN W.A.523/2018
DATED 1.3.2018.
EXHIBIT P2 TRUE COPY OF THE PETITION FILED BEFORE THE
FAMILY COURT, ERNAKULAM DATED 2.11.2017.
EXHIBIT P3 TRUE COPY OF THE SUBMITTED BY THE
PETITIONER BEFORE THE HON'BLE CHIEF
MINISTER, KERALA ON 22.2.2020
EXHIBIT P4 TRUE COPY OF THE REQUEST SUBMITTED BY THE
SISTER OF THE PETITIONER TO THE
CHAIRPERSON, CHILD WELWARE COMMITTEE,
ERNAKULAM AT KAKKANAD DATED 23.3.2020.
