Kerala High Court
Sonia @ Marykutty Shibu vs Shibu on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
WP(CRL.) NO.286 OF 2021
PETITIONER/S:
SONIA @ MARYKUTTY SHIBU, AGED 47 YEARS, W/O. SHIBU,
KUJOGIRIYIL HOUSE, ATHIRAMPUZHA P.O, KOTTAYAM.
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/S:
1 SHIBU, AGED 50 YEARS, S/O. KURIYAN,
POTTANANIYIL HOUSE, NELLIMALA ROAD,
MOOVATTUPUZHA-686 661.
2 JOY, S/O. KURIAN, POTTANANIYIL HOUSE, SULTHANBATHERY,
WYNAD DISTRICT-673 592.
3 THE DISTRICT POLICE CHIEF,
ERNAKULAM RURAL, ERNAKULAM 682031
4 THE STATION HOUSE OFFICER,
MUVATTUPUZHA POLICE STATION, MUVATTUPUZHA,
ERNAKULAM-686 661
R1 BY ADV SRI.KURIAN JOSEPH (ARAKKUNNAM)
OTHER PRESENT:
SENIOR GOVERNMENT PLEADER SRI.T.K.SHAJAHAN FOR R3 & R4.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(Crl.) No.286 of 2021 - 2 -
K.Vinod Chandran & C.Jayachandran, JJ.
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WP(Crl.) No.286 of 2021-S
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Dated, this the 02nd November 2021
JUDGMENT
Vinod Chandran,J.
The petitioner is a mother who was concerned about
the whereabouts of her minor son who is with his father, the
1st respondent. It was stated that the eldest girl child and
the younger son were staying with the father in the
matrimonial house of the petitioner. The 1st child suffers
from a disability which is assessed to be 50% as per Ext.P3.
On 29.07.2021 the elder child was shifted to her maternal
home where the petitioner's mother and sister are residing;
since she attained puberty. The petitioner is working at
Israel from 2019 onwards as a Nurse. When the girl child was
removed from the custody of the father, it is alleged that
the boy was removed as a retaliatory measure and the
petitioner has no contact with the boy.
2. By order dated 22.10.2021, we directed the
District Police Chief, Ernakulam Rural to constitute a team
to enquire about the whereabouts of the child, if necessary
by co-ordinating with the District Police Chief Wayanad since
the petitioner apprehends the child having been removed to
Wayanad.
3. On 26.10.2021 the boy child was produced before
us. After extensive interaction with the child, the
petitioner, the 1st respondent as also the learned Counsel
appearing for both parties, we passed the following order:
"On our direction, the child was traced out
from Wayanad and produced before us. We interacted
with the child and also allowed the mother, the
petitioner, to interact with him alone for about half
an hour. When we interacted with the child first and
then afterwards, we found that his affections are
solely towards his father. We do not find anything
strange looking at the circumstances. The mother, the
petitioner, is employed abroad and has not come here
for the last three years, more so due to the pandemic
situation. The couple have two children; the elder a
girl child, who is autistic, and the younger son, who
is today produced before us. Both the children were
with the father. In April, the maternal grandmother
and maternal aunt have taken the girl child to their
home when she attained puberty. This strained the
relationship between the couple further. We suggested
to the boy that he go with the mother for ten days
especially since the mother is leaving the country,
again for work, on 15.11.2021. However, the child was
not happy with our suggestion and, hence, we did not
pursue it. We called both the parties and in the
presence of the Advocates advised them to settle the
matter once and for all, conceding the custody of the
girl child to the mother and the boy child to the
father, with visitation or interim custody rights. The
learned Counsel for the party respondent suggested
that, when the boy child goes with the mother for ten
days, both the children, for equal days, be with the
father. We find the suggestion to be very perceptive
and, hence, we again called the parents and told them
what is going on in our minds. We also directed the
father, the 1st respondent, to convince the boy child
to go with the mother for ten days, when his sister
will also be there. Since the child's examinations are
going on, we directed the child to be produced on
Monday, the 2nd November, 2021.
Post on 02.11.2021 at 10.15 a.m.".
4. On our suggestion, as per the above order, today
the children were to be produced before us. Even before the
Court commenced, we were informed that the gril child was
creating tantrums at the entrance of the High Court building.
We hence personally went to the entrance and tried to speak
to the child. The child was very disturbed and was crying.
She also became violent and beat the mother's sister, who
accompanied the mother to the Court. We hence directed the
child to be taken back and the family succeeded in coaxing
the child into the car, in which they came from Kottayam. The
mother informed us that on certain days the girl child is
prone to such tantrums and it will remain for the whole day.
5. At that point, the 1st respondent and the boy
child came to the Court premises. The girl child immediately
got out of the car and ran to her brother and kissed him. But
the boy child was not at all responsive. We were of the
opinion that our suggestion to allow the children to be
together at different points with the parents would not be
feasible. We hence directed the girl child to be taken back,
since an interaction with the child is impossible and she
cannot express her mind.
6. Later, in Chambers we interacted with the boy
child alone. He refused to go with the mother. We called the
learned Counsel appearing for both parties and the petitioner
and the 1st respondent. The petitioner implored us to handover
the child to her, at least for ten days since she is going
back to Israel for work. However the boy child remained
unresponsive and clung to his father's hands. We gave the
mother, the petitioner, an opportunity to call the child to
her. Despite the entreaties of the mother, the son refused to
budge and adamantly clung on to his father. Considering the
age of the child and the apparent disaffection of the child
to the mother, we were constrained to refuse the prayer of
the mother and allow the 1st respondent, father, to take the
child. Of course, we cannot frustrate the remedies available
to obtain guardianship of the child, which we leave open to
be agitated before the appropriate forum. We make it clear
that the observations made by us are only with respect to the
present writ petition seeking a writ of habeas corpus. We do
not find any illegal custody, the child being in the custody
of the father, the natural guardian. We make it clear that if
at all an application for guardianship is filed, the same
shall be considered untrammelled by our observations. The
disaffection of the child, we notice, is only by reason of
the long absence of the company of the mother. We cannot also
blame the mother, who is estranged from her husband and has
the onerous task of looking after a differently abled child,
for which alone she has opted to work abroad.
We close the above writ petition with the above
observations.
Sd/-
K. Vinod Chandran
Judge
Sd/-
C. Jayachandran
Judge
vku/-
APPENDIX OF WP(CRL.) 286/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE BIRTH CERTIFICATEOF THE
GIRL CHILD ALINA SHIBU.
Exhibit P2 TRUE COPY OF THE BIRTH CERTIFICATE OF THE
GIRL CHILD ALLEN SHIBU.
Exhibit P3 TRUE COPY OF THE DISABILITY CERTIFICATE OF
THE GIRL CHILD ALINA SHIBU DATED 15.02.2021.
Exhibit P4 TRUE COPY OF THE WORKING PERMIT OF THE
PETITIONER.
Exhibit P5 PHOTOGRAPHS OF THE PETITIONER SHOWING BODILY
INJURIES ON HER NECK, THIGHS, BACK AND OTHER
PARTS OF THE BODY.
Exhibit P6 TRUE COPY OF THE O.P. TICKET ISSUED FROM
PRIMARY HEALTH CENTRE, ATHIRAMPUZHA.
Exhibit P7 TRUE COPY OF THE F.I.R AND F.I.S IN CRIME
3533/2021 OF MOOVATTUPUZHA POLICE STATION.
Exhibit P8 TRUE COPY OF THE RETURN TICKET OF THE
PETITIONER TO ISRAEL CONFIRMED BY THE
AIRLINES.
