Sadiq Hamsa vs State Of Kerala
2021 Latest Caselaw 21999 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                   THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                        &

                    THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

         WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943

                            WP(CRL.) NO. 329 OF 2021

PETITIONER:

               SADIQ HAMSA,
               AGED 56 YEARS,
               RESIDING AT ALLAHU AKBAR HOUSE,
               MELVETTOOR, VETTOOR,
               THIRUVANANTHAPURAM DISTRICT-695312.

               BY ADVS.
               THOMAS ABRAHAM
               ANIL K.NAIR
               MERCIAMMA MATHEW
               ASWIN.P.JOHN
               R.ANANTHAPADMANABAN
               THAYYIB SHA P.S.
               GEORGE J.NALAPPAT


RESPONDENTS:

     1         STATE OF KERALA,
               REPRESENTED BY THE SECRETARY,
               HOME AFFAIRS, GOVERNMENT OF KERALA,
               SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2         STATE POLICE CHIEF,
               KERALA STATE, POLICE HEAD QUARTERS,
               THIRUVANANTHAPURAM-691012.
     3         DISTRICT POLICE CHIEF,
               THIRUVANANTHAPURAM RURAL,
               OFFICE OF DISTRICT POLICE CHIEF, PALAYAM,
               THIRUVANANTHAPURAM, KERALA-695033.
     4         THE STATION HOUSE OFFICER,
               VARKALA POLICE STATION, VARKALA,
               KALLAMBALAM ROAD, THIRUVANANTHAPURAM-695141.
     5         MASIYATH,
               D/O. ABDUL SAMAD, REHMATH HOUSE,
               MELVETTOOR, VARKALA,
               THIRUVANANTHAPURAM DISTRICT-695312.

OTHER PRESENT:

               SENIOR GOVERNMENT PLEADER - SRI.T.K.SHAJAHAN

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(Crl) No.329 of 2021

                                  2




        K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
                ---------------------------------------
                   W.P(Crl.)No. 329 of 2021
                ---------------------------------------
          Dated this the 03rd day of November, 2021


                           JUDGMENT

C.Jayachandran, J.

The petitioner seeks issuance of a writ

of Habeas Corpus, directing respondents 2 to 4 to

produce the minor by name Fathima Nuhuma before

this Court, as also, to order her release.

2. The petitioner is the father of the

alleged detenue. The detenue's mother Aseefa

passed away on 21.08.2021. The petitioner

remarried when his first wife became sick, in

order to give assistance to his first wife. The

first wife of the petitioner then became hostile

to the petitioner's 2nd wife, particularly, when a

child was born in the second wedlock.

3. When the differences between the 1st wife W.P.(Crl) No.329 of 2021

and the 2nd wife got worsened, the 1st wife Aseefa

abruptly left the residence of the petitioner and

joined the 5th respondent, who is her elder

sister. The 5th respondent thereafter maintained

contact with the minor/detenue and influenced her

somehow. The first wife Aseefa was diagnosed

with cancer in the meantime, whereupon the

minor/detenue went to the 5th respondent's house

to take care of her mother. Aseefa passed away

on 21.08.2021. Although, the petitioner tried to

bring back the minor/detenue from the custody of

the 5th respondent, the same failed. The

minor/detenue is residing along with the 5th

respondent in the house of her son. 5 th

respondent has no right in the said house. She

is not capable of taking care of the educational

and other needs of the minor/detenue. The

detenue is not safe in the 5th respondent's house.

It is on such premise that the petitioner seeks

issuance of a writ of Habeas Corpus in order to W.P.(Crl) No.329 of 2021

get back the detenue in the custody of the

petitioner.

4. Having heard the learned counsel

appearing for both sides, we find that there is

no illegal detention of the detenue/minor at the

hands of the 5th respondent. 5th respondent is

none other than the elder sister of the detenue's

mother, who is now no more.

5. The facts pleaded would disclose that the

detenue was not stealthily taken away by the 5 th

respondent. Instead, the detenue started

residing with the 5th respondent to take care of

her mother, who was diagnosed with cancer. The

pleadings in the writ petition would reveal that

the detenue chose to reside with the 5th

respondent, even after her mother's death.

6. In as much as this Court finds no illegal

detention, we are of the view that no

interference, whatsoever, is required in the W.P.(Crl) No.329 of 2021

matter. A situation warranting issuance of a

writ in the nature of Habeas Corpus does not

surface in the given facts.

Therefore, this writ petition is closed,

reserving the right of the petitioner to approach

the appropriate forum, seeking custody of his

minor daughter.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE

NR/03/11/2021 W.P.(Crl) No.329 of 2021

APPENDIX

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE REPRESENTATION DATED 29.10.2021 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT AUTHORITIES.