Kerala High Court
Abhilash Khan vs The Director General Of Police on 27 May, 2021
W.P(Crl) No.128 of 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
WP(CRL.) NO. 128 OF 2021
PETITIONER:
ABHILASH KHAN,
0
AGED 40 YEARS
S/O. HASHIM, MUMTHAS MANZIL, MANTHARA, EDAVA P.O,
EDAVA VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM
DISTRICT 695 311
BY ADVS.
R.RAJESH (VARKALA)
SRI.M.KIRANLAL
SRI.MANU RAMACHANDRAN
SRI.T.S.SARATH
SHRI.SAMEER M NAIR
RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE
KERALA STATE (LAW AND ORDER) POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM 695 004
2 THE DISTRICT POLICE CHIEF/SUPERINTENDENT OF
POLICE,
THIRUVANANTHAPURAM RURAL DISTRICT,
THIRUVANANTHAPURAM DISTRICT 695 033
3 THE DEPUTY SUPERINTENDENT OF POLICE,
VARKALA SUB DIVISION, VARKALA P.O,
THIRUVANANTHAPURAM DISTRICT 695 141
W.P(Crl) No.128 of 2021 2
4 THE STATION HOUSE OFFICER,
AYIROOR POLICE STATION, THIRUVANANTHAPURAM RURAL
DISTRICT, AYIROOR, VARKALA, THIRUVANANTHAPURAM
DISTRICT 695 310
5 SAJNA S,
AGED 32 YEARS
D/O. SULAIMAN KUNJU, AMINA MANZIL, LAKHAM VEEDU,
MANTHARA, EDAVA P.O, EDAVA VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT 695 311
6 SULAIMAN KUNJU,
AGED 64 YEARS
AMINA MANZIL, LAKHAM VEEDU, MANTHARA, EDAVA P.O,
EDAVA VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM
DISTRICT 695 311
7 SHAFEEKKA BEEVI,
AGED 60 YEARS
W/O. SULAIMAN KUNJU, AMINA MANZIL, LAKHAM VEEDU,
MANTHARA, EDAVA P.O, EDAVA VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT 695 311
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 27.05.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P(Crl) No.128 of 2021 3
ALEXANDER THOMAS & K.BABU, JJ.
============================
W.P(Crl) No.128 of 2021
============================
Dated this the 27th day of May, 2021
JUDGMENT
The prayers in the abovecaptioned Habeas Corpus criminal writ
proceedings filed under Article 226 of the Constitution of India are as
follows:
"i) Issue a writ of Habeas Corpus or other appropriate writ
order or direction commanding the Respondents to produce the body of
Miss. Ayisha Abhilash, aged 8 years, Amina Manzil, Lakham Veedu,
Manthra, Edava P.O, Edava Village, Varkala Taluk,
Thiruvananthapuram District-695 311 before this Hon'ble Court and set
her at liberty to go along with the petitioner.
ii) Grant such other reliefs, this Hon'ble Court deem fit to
grant in the facts and circumstances of the case."
2. Heard Sri.R.Rajesh, learned counsel appearing for the
petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing
for the official respondents 1 to 4. In the nature of the orders
proposed to be passed in this petition, notices to contesting
respondents 5 to 7 will stand dispensed with.
3. The case set up by the petitioner is to the effect that he, aged
40 years, is the husband of the 5th respondent, S.Sajna, aged 32 years
and that respondents 6 & 7 are the father and mother respectively of
respondent No.5. Further it appears from the tone and tenor of the
pleadings that 5th respondent (wife) had left the marital home and
gone to the residence of R6 & R7 (that is of the parental home of R5).
Further that two minor sons and a minor daughter are born in the
wedlock of the petitioner with the 5th respondent. That the alleged
detenue Aisha Abhilash, aged 7 years is the daughter of the petitioner
born in the wedlock with R5 and that Aisha Abhilash is under the
illegal custody of R6 & R7 who are the parents of R5, etc.
4. Going by the very nature of tone and tenor of the pleadings
and the nature of the case of the petition it appears to us that the
matter of this nature is to be adjudicated before the competent Family
Court, as admittedly the alleged detenue happens to be the daughter of
R5, who is now residing in the parental home of R5. However, we had
requested the learned Prosecutor to get instructions. The learned
Prosecutor has now secured instructions from the 4 th respondent
Station House Officer, who has submitted that he could find out that
Aisha Abhilash is now staying along with her mother (R5) in the
residence of R6 & R7 and that the child and the mother are voluntarily
living in the parental home of the wife. Further that R5 has given a
statement before the Police that it was only on account of the extreme
marital discord that she was constrained to leave the marital home
and the only refuge she could get was her parental home and that
being so she along with the child (Aisha Abhilash) are staying in the
residence of R6 & R7. Further that the two minor sons of the
petitioner and R5 have gone back to reside with the petitioner. From
the information collected from R5, it appears that Aisha Abhilash, the
daughter wants to reside with her mother and she does not want to go
to her father's residence, etc. Further R5 has also stated before the
Police that she has no objection in the petitioner visiting the child after
getting prior appointment, etc.
5. Taking note of these aspects, it may not be right and proper
for us to entertain this writ proceedings in the plea for Habeas Corpus
as there is no case of per se illegal detention. We requested the
Prosecutor whether arrangement could be made by the police to
ensure that the petitioner is permitted to see his daughter in the
residence of R6 & R7 once in a week or so after prior appointment and
to enable the petitioner to make his first visit to the daughter without
any further delay within the next one week or so.
6. The learned Prosecutor submitted that in view of the
abovesaid statement given by R5 before the Police, there may not be
any serious issues in that regard. Hence it is ordered that 4 th
respondent Station House Officer may ensure that the petitioner is
permitted to visit his daughter Aisha Abhilash in the residence of R6 &
R7, after prior arrangement and in the presence of a woman police
official. All Other issues are left open and in case the petitioner has
any legally justifiable grievances, it will be open to him to seek
appropriate remedies before the Family Court concerned. The main
prayers sought for by the petitioner cannot be granted by this Court.
With these observations and directions the above Writ Petition
(Crl) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
K.BABU, JUDGE
KAS
APPENDIX OF WP(CRL.) 128/2021
ANNEXURE/EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE MARRAIGE
CERTIFICATE DATED 06-09-2010
EXHIBIT P2 THE LAWYER NOTICE DATED 22-09-2020
EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT TO THE
2ND RESPONDENT DATED 24-04-2021.
RESPONDENTS EXHIBITS : NIL
