Kerala High Court
Tuesday vs Saheer Rahman on 9 March, 2021
WP(Crl.) 47/2021 1/7
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 9th day of March 2021/18th Phalguna, 1942
For information purpose only WP(Crl.) No.47/2021(S)
PETITIONER
SAHEER RAHMAN, AGED 42 YEARS, SON OF LATE ABDUL RAHMAN,
MANAMKURICHI VEEDU, PANAVALLY P.O., CHERTHALA,
ALAPPUZHA DISTRICT-688 526.
RESPONDENTS
1. NUBLA .V., AGED 33 YEARS, D/O.LATHEEF,
KATTILPARAMBATH PARAMBIL, CHERUVATA P.O.,
KOZHIKODE-673 012.
2. NOORJAHAN, W/O.LATHEEF,AGED ABOUT 51 YEARS,
KATTILPARAMBATH PARAMBIL,
CHERUVATTA P.O., MOOZHIKKAL, KOZHIKODE-673 012.
3. SUB INSPECTOR OF POLICE, CHEVAYUR POLICE STATION,
KOZHIKODE DISTRICT-673 017.
4. CITY POLICE COMMISSIONER,
OFFICE OF THE CITY POLICE COMMISSIONER,
KOZHIKODE CITY, KOZHIKODE-673 001.
ADDL. R5 TO R7 IMPLEADED
5. UNION OF INDIA,
REPRESENTED BY MINISTRY OF EXTERNAL AFFAIRS,
'A' WING, JAWAHARLAL NEHRU BHAWAN, 23-D, JANPATH,
NEW DELHI-110 011, REPRESENTED BY UNDER SECRETARY.
6. MINISTRY OF EXTERNAL AFFAIRS, 'A' WING,
JAWAHARLAL NEHRU BHAWAN, 23-D, JANPATH, NEW DELHI-110 011,
REPRESENTED BY UNDER SECRETARY.
7. REGIONAL PASSPORT OFFICE, ERANHIPALAM POST,
WEST HILL, KOZHIKODE, KERALA-673 006,
REPRESENTED BY REGIONAL PASSPORT OFFICER.
ADDL. R5 TO R7 ARE IMPLEADED AS PER ORDER DATED 16/02/2021
IN IA.1/2021 IN WP(CRL).
P.T.O.
WP(Crl.) 47/2021 2/7
Writ Petition (criminal) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(Crl.) the High Court be
pleased to: i) To issue a writ of Habeas corpus and command respondents to
produce (detenue) Abiz Rahman, aged seven and a half years now abandoned by
1st respondent, before this Honourable Court and to handover the custody to
the petitioner. ii) To pass any other and such other orders as this
For information purpose only
Honourable Court deem fit to pass in the nature and circumstances of the
case. iii) To award cost of the proceedings to the petitioner.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(Crl.) and this Court's order dated
22/02/2021 and upon hearing the arguments of M/S ABDUL JALEEL.A &
M.A.SULFIA, Advocates for the petitioner, M/S. JOHN K.GEORGE, ANILKUMAR
V.R., PAREETH LUTHUFIN K.B., PRASANTH K.T., RAMEES P.K., M.B. SHYNI &
DEEPAK RAJ, Advocates for R2, GOVERNMENT PLEADER for R3 & R4 and of SRI.P.
VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL OF INDIA for Addl. R5 to R7, the
court passed the following:
P.T.O.
WP(Crl.) 47/2021 3/7
EXHIBIT P1: TRUE COPY OF COMMON ORDER DATED 13/01/2021 IN EA 230/2020
AND EA.231/2020 IN EP.3/2019 IN OP 1750/2014.
EXHIBIT P2: TRUE COPY OF E-VISA INQUIRY RESULT.
EXHIBIT P3: TRUE COPY OF ORDER DATED 21/06/2019 IN OP(FC) 290/2019.
EXHIBIT P4: TRUE COPY OF COMMON ORDER DATED 06/07/2019 IN EA.189/2019,
EA.11/2019, EA.226/2019 AND EA.301/2019 IN EP.3/2019 IN
For information purpose only
OP.1750/2014.
EXHIBIT P5: TRUE COPY OF REFER REPORT 20/05/2019 IN CRIME NO.557/2019
OF POOCHACKAL POLICE STATION.
EXHIBIT P6: TRUE COPY OF ORDER DATED 17/12/2020 OF FAMILY COURT, THRISSUR
IN EA.130/2020 FILED BY PETITIONER.
EXHIBIT P7: TRUE COPY OF THE JUDGMENT DATED 06/01/2021 IN
OP(FC) 539/2020.
EXHIBIT P8: TRUE COPY OF ORDER DATED 01/02/2021 OF HONOURABLE
SUPREME COURT.
EXHIBIT C(1):E VISA INQUIRY RESULT PRODUCED ON 09/03/2021.
K. VINOD CHANDRAN & M.R.ANITHA, JJ.
----------------------------------------------------
W.P.(Crl.)No.47 of 2021
---------------------------------
Dated this the 9th day of March, 2021
ORDER
For information purpose only
K. Vinod Chandran, J.
The father of a minor boy is the petitioner herein. The
father has been agitating his cause before the Family Court to
get custody of the child; unsuccessfully, more for reason of the
adamant stand of the mother, his wife. The custody application
filed by the petitioner is O.P.(F.C.)No.290/2019. While it was
pending, there was an interim direction to grant custody of the
minor child to the father during the first half of Onam and
Christmas holidays and ten days during the summer holidays.
The wife aggrieved with the same approached this Court. By
Ext.P3 this Court found that the order was not a speaking order
and hence directed the Family Court to consider the objections.
In compliance of the directions in Ext.P3, the Family Court
considered the objections of the mother, the first respondent
before the Family Court and passed Ext.P4 order, wherein the
Family Court noticed that there was a crime registered against
the father under the Protection Of Children from Sexual
Offences Act, 2012 (for short, POCSO Act). Hence, the Family
W.P.(Crl.)No.47 of 2021
Court was of the opinion that the application for interim custody
need not be allowed at that juncture.
2. After Ext.P4 order was passed, the police on
For information purpose only
investigation referred the crime by Ext.P5, upon which, the
petitioner again raised his claim for custody of the child before
the Family Court. The Family Court considered the prayer and by
an elaborate order (Ext.P6) allowed the interim custody. The
mother challenged it before this Court and this very Division
Bench rejected the Original Petition by Ext.P7 order. We
specifically noticed the discussion of the Family Court regarding
the allegation under the POCSO Act as also the reference made
by the Police. We found that the Family Court had discharged its
onerous responsibility in a commendable manner and found no
reason to interfere with the interim custody directed. We
rejected the Original Petition, against which, the first
respondent-mother unsuccessfully approached the Hon'ble
Supreme Court as evident from Ext.P8.
3. The frustrated father again approached the Family
Court, in which, the Family Court imposed a fine of Rs.100/-, a
flea-bite according to us. The Family Court also issued a warrant
as against the mother addressed to the Commissioner of Police,
W.P.(Crl.)No.47 of 2021
despite which, the first respondent mother was not apprehended
nor the child produced before the Family Court, in which event
the petitioner father has approached this Court with this petition
For information purpose only
for a writ of habeas corpus for production of the minor child.
4. The petitioner had specifically sought for production of
the child pointing out that Ext.P2 communication indicated that
the first respondent had left India on 27.01.2021. According to
the petitioner, the child was still in India and was with the
maternal grandparents. We directed the impleadment of the
Union of India, Ministry of External Affairs and the Regional
Passport Office at Calicut for ascertaining the travel details of
the first respondent. Today when the matter was taken up, we
were informed that on the very same day, the child had also left
India along with the mother, the first respondent herein. The
'eVisa Inquiry Result' identical to that produced as Ext.P2 has
been produced before us. We take it as part of the record and
mark it as Court Exhibit C(1).
5. We directed respondents 6 & 7 to furnish the passport
details of the first respondent and the minor child. The first
respondent has been issued with a passport No.S5281274 dated
13.09.2018 and the minor child passport No.T1994381 dated
W.P.(Crl.)No.47 of 2021
05.03.2019. The first respondent has violated the orders of the
Family Court and this Court and has taken the child out of India.
There is also a warrant pending against the first respondent as is
seen For
from information purpose
Ext.P1 order of the only
Family Court. In such
circumstances, we direct the respondents 5 to 7 to immediately
impound the passport of the respondent and the minor child
Aabiz Rahman Saheer Rahman, S/o. Saheer Rahman and also
through the Embassy of India at Dubai to inform the first
respondent about the orders of this Court. We also direct the
respondents 5 to 7 to take up the matter of deportation through
the Embassy of India with the authorities in Dubai. We issue a
writ of habeas corpus for production of Aabiz Rahman Saheer
Rahman, S/o. Saheer Rahman, aged 7½ years, before this Court
as and when he is brought into India after complying with the
quarantine protocol.
The case shall be posted on 19.03.2021.
Sd/-
K. VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
Shg x10. JUDGE
/true copy/ Sd/- ASSISTANT REGISTRAR
