Kerala High Court
Monday vs Nisa Beegum on 15 March, 2021
WP(Crl.) 392/2017 1/9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Monday,the 15th day of March 2021/24th Phalguna, 1942
For information purpose only
WP(Crl.) No.392/2017(S)
PETITIONER
NISA BEEGUM, AGED 46, W/O.IRSHAD, 'SHABNA',
PULIYATH, PALACHIRA P.O., CHERUNIYOOR VILLAGE,
VARKALA TALUK, THIRUVANANTHAPURAM DISTRICT.
RESPONDENTS
1. THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM (RURAL),
PLAMOOD, CHARACHIRA ROAD, KOWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 003.
2. THE SUB INSPECTOR OF POLICE,
ATTINGAL POLICE STATION, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PINCODE-695 101.
3. BINSHA, AGED 23, D/O.NOUSHAD, N.S.MANZIL,
THUMPOODU, VALLIKKODU, NEDUMANGAD P.O.,
THIRUVANANTHAPURAM, PIN CODE-695 541.
4. RAHUL HANEEF, S/O.HANEEFA, DARUL-AMAN,
PULIKUZHI, VELLOORKONAM, MANCHA, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN CODE-695 541.
5. SANOOJA, W/O.NOUSHAD, N.S. MANZIL,
THUMPOODU, VALLIKKODU, NEDUMANGAD P.O.,
THIRUVANANTHAPURAM, PIN CODE-695 541.
ADDL. R6 IMPLEADED
6. THE REGIONAL PASSPORT OFFICER, TRIVANDRUM,
GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS,
PASSPORT OFFICE, SNSM JUNCTION, KARALKADA JUNCTION,
PETTAH P.O., THIRUVANANTHAPURAM, PIN CODE-695 024.
ADDL. R6 IMPLEADED AS PER ORDER DATED 01/11/2017 IN
IA NO.17418/2017.
ADDL. R7 IMPLEADED
7. THE DIRECTOR GENERAL OF POLICE, STATE OF KERALA.
ADDL. R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 03/02/2021
IN WP(Crl) 392/2017.
P.T.O.
WP(Crl.) 392/2017 2/9
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 pass an order commanding the 2nd respondent to search for the
body of minor 'Muhammed Siyan', from the illegal detention of respondents 3
to 5 and to produce before this Honourable Court and to grant custody of
the minor to the petitioner, pending disposal of this writ petition.
For information purpose only
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
25/02/2021 and upon hearing the arguments of M/S P.M.SANEER & SHAJIN
S.HAMEED, Advocates for the petitioner, SENIOR GOVERNMENT PLEADER for R1 &
R2, SRI.SASTHAMANGALAM S.AJITHKUMAR, Advocate for R3 to R5 and of
SRI.P.VIJAYAKUMAR, ASSISTANT SOLICITOR GENERAL OF INDIA for R6, the court
passed the following:
WP(Crl.) 392/2017 3/9
EXHIBIT P5: PHOTOCOPY OF THE INTERIM ORDER DATED 11-07-2017
IN O.P.(FC)NO.346/2017 OF THIS HONOURABLE COURT.
EXHIBIT P6: PHOTOCOPY OF THE JUDGMENT OF THE SUPREME COURT
OF INDIA DATED 31/07/2017 IN CIVIL APPEAL NO.9921/2017.
EXHIBIT P7: PHOTOCOPY OF THE FIR IN CRIME NO.2004/2017 OF
ATTINGAL POLICE STATION.
For information purpose only
K. Vinod Chandran & M.R. Anitha, JJ.
-------------------------------------
W.P (Crl) No.392 of 2017-S
------------------------------------
Dated, this the 15th day of March, 2021
For information purpose only
ORDER
Vinod Chandran, J.
Read order dated 25.02.2021, which is self
explanatory:
"This is a case in which the 3rd respondent,
mother of a minor child, abducted the child and fled
the country when the child was handed over to her for
two hours, from the custody of the
petitioner-grandmother as per the orders of the
Family Court. The order of the Family Court in the
Guardian O.P. filed for custody by the mother was
challenged by the mother before this Court. This
Court was of the opinion that the custody of the
minor child should be with the mother, as per Exhibit
P5. The grandmother challenged the order before the
Hon'ble Supreme Court. The Hon'ble Supreme Court by
Exhibit P6 directed the Family Court, Attingal to
dispose of O.P.(G&W) No.450 of 2017 expeditiously and
also directed status-quo with respect to the custody.
2. Obviously the child was in the custody of the
grandmother. The mother had visitation rights on
first Saturday of every month. On 13.09.2017, the
minor child was produced before the Family Court by
the grandmother to facilitate the visitation right of
the mother for two hours. The mother took the child
WP(Crl).392 of 2017 - 2 -
out of the Family Court premises and fled the country
along with the child. The 4th respondent is said to
be her second husband, the father of the child being
deceased. On our orders in the writ petition, the
For information purpose only
Passports of respondents 3 and 4 and the child were
impounded
by the Embassy. The Passports impounded
were obtained by respondents 3 and 4 by suppressing
the Passports earlier issued to them and the minor
child were cancelled by the Regional Passport Officer
on orders issued in the above writ petition. We
directed impounding of the new Passports issued by
the Embassy to facilitate deportation of the 3rd
respondent and the minor child.
3. Today when the matter was taken up,
Sri.Sasthamangalam S.Ajithkumar appeared for the
respondents 3 to 5. The learned Counsel sought for
fifteen days time for the 3rd respondent and the
child to travel to India.
4. This is a case in which the 3rd respondent
had violated the orders of the Supreme Court and
abducted the child, upon which Exhibit P7 crime has
also been registered. The habeas corpus writ petition
has been pending for the last four years before this
Court. Though we are not happy with the conduct of
the 3rd respondent, considering the fact that she has
to travel to India with a minor child, we deem it fit
that she be granted fifteen days time as sought, to
come to India, i.e., on or before March 11, 2021. We
record the undertaking of the 3rd respondent that she
would definitely travel to India with the minor child
within fifteen days.
WP(Crl).392 of 2017 - 3 -
5. In such circumstance, we direct the Embassy
of India, Muscat to facilitate the travel of the 3rd
respondent alongwith the minor child 'Muhammed Siyan'
to India within the aforesaid fifteen days, since
For
their
information purpose only
Passports have been impounded. The learned
Counsel for the 3rd respondent shall communicate this
order to the 3rd respondent. Likewise, the learned
Assistant Solicitor General of India also is
requested to communicate this order to the Embassy of
India at Muscat, so that the travel of the 3rd
respondent along with the minor child can be
facilitated. On the 3rd respondent with the minor
child entering India, if the 3rd respondent is
arrested pursuant to crime registered at Exhibit P7,
she shall be released on bail; on self bond for
undergoing quarantine. She shall be placed in
quarantine along with the child either at her expense
or in the Government facility, but with continued
police surveillance. Immediately after the quarantine
period is over, they shall be produced before this
Court, with notice to the learned Counsel for the
petitioner".
2. Today, the 3rd respondent was before us in Chambers
along with the minor child Muhammed Siyan. We allowed the
petitioner, the paternal grandmother, to interact with the
minor child. Though the child told us that he is unaware of
who the petitioner was, he interacted with the lady
affectionately. Obviously he has been tutored by his mother.
WP(Crl).392 of 2017 - 4 -
We directed the petitioner to have secluded interaction with
the child and produce the child before us on the rising of
Court.
For information purpose only
3. In the facts and circumstances as evident from
the above extracted order, we are of the opinion that the 3rd
respondent is guilty of contempt of Court. We have called for
the records of the Family Court, which indicate that after
Exhibit P6 order was passed by the Hon'ble Supreme Court
granting status-quo by which the custody of the minor child
was retained with the paternal grandmother, the mother, the
3rd respondent herein, had taken the child from the custody,
violating the orders of the Hon'ble Supreme Court and the
orders of the Family Court, when the child was handed over to
the 3rd respondent-mother for visitation rights within the
Family Court premises. Later the Family Court also closed
O.P(G&W) No.450 of 2017 on an application filed by the 3 rd
respondent-mother for withdrawing the same, before the Family
Court. We are unhappy at the manner in which the Family Court
has dealt with the matter. When the child, who was handed
over to the mother merely to comply with the visitation
rights, was taken away, the Family Court ought to have taken
cognizance of the same and initiated further proceedings
including issuance of warrant for production of the child.
WP(Crl).392 of 2017 - 5 -
The Family Court ought not to have closed O.P(G&W) No.450 of
2017 on an application filed by the 3 rd respondent after gross
violation of the orders of the Family Court. In the
For information purpose only
circumstance of the clear violation, we direct the Registry
to initiate a suo motu contempt case against the 3rd
respondent, which shall be posted along with the above writ
petition.
4. The 3rd respondent is directed not to leave the
country without our permission and the impounded Passports
shall not be validated until further orders. The 3rd
respondent shall also ensure that Muhammed Siyan, the minor
child, is not taken out of the country or the State without
our orders.
5. Considering the overall circumstances relating to
the custody of the child, we are of the opinion that O.P(G&W)
No.450 of 2017 has to be restored to the files of the Family
Court, Attingal. We do so invoking our powers under Article
227 of the Constitution of India. We direct the parties to
appear before the Family Court on 22.03.2021. However,
further proceedings shall be kept in abeyance since we are of
the opinion that there should be a mediation carried out
between the parties on appearance before the Family Court. A
suitable Mediator shall be appointed by the Family Court at
WP(Crl).392 of 2017 - 6 -
Attingal and the parties shall co-operate with the mediation.
6. In the meanwhile, we direct that the petitioner,
grandmother, shall be allowed to interact with the child
every
For information purpose only
Saturday in the following address where the 3 rd
respondent is residing:
"Darul Huda,
Near Government L.P.School,
Velloorkonam,
Mancha P.O., Nedumangad,
Thiruvananthpuram - 695 541".
The interaction shall be for a period of two hours, either in
the morning or in the afternoon. The petitioner shall inform
the time in advance to the 3rd respondent. The 3rd respondent
shall ensure that when the petitioner comes, the child is at
the above residence. We direct the petitioner, the 3rd
respondent and the child to be present before us on
05.04.2021.
Post on 05.04.2021.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
Vku/-
/true copy/ Sd/- ASSISTANT REGISTRAR
