Kerala High Court
Rajesh V vs The Circle Inspector Of Police on 1 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
WP(CRL.) NO. 197 OF 2021
PETITIONERS:
1 RAJESH V., AGED 38 YEARS, S/O.VASUDEVAN P.E., ERAKKATT
HOUSE, MULLURKARA P.O., THRISSUR - 680 583.
2 SADNANADAN V., AGED 64 YEARS, S/O.NARAYANAN KUTTY NAIR,
SOPANAM, KALLIPPADAM, SHORANUR P.O., PALAKKAD- 679 122.
BY ADVS.
C.HARIKUMAR
ANAND GOKULDAS
SANDRA SUNNY
RESPONDENTS:
1 THE CIRCLE INSPECTOR OF POLICE, SHORANUR POLICE
STATION, SHORANUR, PALAKKAD - 679 121.
2 PRASANTH K.M., S/O.MOHANAN, PREMNIVAS, BLAYIL ROAD,
EROOR SOUTH, EROOR P.O., TRIPUNITHURA - 682 306.
*ADDL.3 THE STATION HOUSE OFFICER, THRIPUNITHURA.
* ADDL.R3 IS IMPLEADED AS PER ORDER DATED 13/08/2021
*ADDL.4 SHEEBA ANAND, D/O.SADANANDAN V., PREMNIVAS, BLAYIL
ROAD, EROOR SOUTH, EROOR P.O., TRIPUNITHURA-682 306.
* ADDL.R4 IS IMPLEADED AS PER JUDGMENT DATED 01/09/2021
BY ADVS.
SENIOR GP SRI.T.K.
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(Crl) No.197/2021 - 2 -
K.VINOD CHANDRAN & ZIYAD RAHMAN A.A, JJ.
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W.P(Crl.)No.197 of 2021-S
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Dated, this the 1st September, 2021
JUDGMENT
Vinod Chandran, J.
The husband and father, petitioners, seek production
of the wife/daughter, who was missing along with a minor son,
the latter of whom is assessed as having Autism Spectrum
Disorder. The petitioners apprehended that the lady is in the
illegal custody of the 2nd respondent.
2. On 06.08.2021, we directed the 1st respondent-
Station House Officer to enquire about the whereabouts of the
missing mother and child. It was also directed that necessary
enquiries be made from the 2nd respondent also. On 11.08.2021 a
statement was filed by the 1st respondent stating that the
mother and child had voluntarily appeared before the Station
House Officer. It was divulged by the missing mother, through
a statement, that she had, on her own freewill, picked up her
son to join the 2nd respondent, her social media friend. The
petitioners were called to the Police Station and they were
allowed to interact with the mother and child. The missing
woman and child were also produced before the Judicial First
Class Magistrate's Court, Ottappalam.
3. Considering the fact that the child is shown to be
one having special needs, we directed production of the child.
Today, the minor child along with his mother appeared before
this Court. The petitioners and the maternal grandmother of
the minor child were also present. We interacted with the
minor child, whom we too perceived to be a child having
special needs as certified by Ext.P2. We first called the 1st
petitioner, the father of the minor child, into the chambers.
The child was very affectionate to the father and willingly
joined him. We asked him whether he was ready to go with the
father, to which the child agreed. Later we called the mother
also. We tried to make the mother understand that the child
needs both the parents. However, the mother was adament and
asserted that she is living with the 2nd respondent, a friend,
on her own freewill. When we informed her about the
willingness of the child to go with the father; she said that
the child would not even have food; if devoid of her presence.
She asked the child whether he wants to go with the father and
he replied in the affirmative. Then she made him understand
that she would not be coming with him, when the child did not
agree to that. We again pointed out the fact that the child
requires both parents, especially in the special condition he
is in, but the mother did not relent.
4. We were informed that the wife of the 1 st
petitioner has already commenced divorce proceedings, which
she wanted to pursue. The 1st petitioner said that there could
be a mediation and some time should be granted to his wife for
introspection. In fact, the wife of the petitioner has left
her parental home to join the 2 nd respondent. We also called
the 2nd petitioner and his wife into the chambers. They
informed us that their daughter had not informed them about
her decision.
5. In the totality of the circumstances, we are of
the opinion that the matters regarding custody and divorce
have to be left to the Family Court. However, taking the
special needs of the child into consideration, we were of the
opinion that some interim arrangements should be made
regarding his custody. We indicated to the 1 st petitioner and
his wife that considering the tender age of the child, for the
time being the custody should be with the mother. But the
father ought to have association and he can be allowed to take
the child for the weekends. The mother of the child did not
have any objection, subject to the condition that if the child
has any problem, he should be brought back immediately. The
mother apprehends that the child may not be comfortable
overnight, without her presence. The mother specifically told
us that the child is most comfortable with herself and then
with the maternal grandmother. We asked the maternal
grandparents of the child, who were present before us, whether
they would have any problem in the son-in-law staying with
them during the week ends. The grandparents said, they were
only happy to accommodate their son-in-law and their
grandchild. The parties agreed that an interim arrangement can
be made on the lines suggested by us. We implead the wife, the
alleged detenue as the additional fourth respondent as given
below:
"Sheeba Anand, D/o.Sadanandan V.,
Premnivas, Blayil Road, Eroor South,
Eroor P.O., Tripunithura-682 306"
6. As an interim measure, with the agreement of the
parties, we direct that the mother of the child will have the
custody of the child during the week days and the father
during weekends. The father will pick-up the child from the
residence of the 2nd respondent, where the mother and child are
now residing, on every Friday afternoon between 3 p.m. and 5
p.m. He would have the custody of the child till Sunday
evening. Before 5 p.m. on Sunday evening, the 1st petitioner
shall return the child to the mother. The 1st petitioner is
free to take the child either to his own house or to the house
of his in-laws, during the time he has the custody of the
child. With respect to permanent custody, the parties are free
to approach the jurisdictional Family Court and the Family
Court would consider the matter on the evidence led;
untrammeled by the arrangements we made or the reasoning
behind that. We make it clear that the mother, who is
impleaded as the 3rd respondent here will ensure that the child
is not taken out of the State without the consent of the 1 st
petitioner and if there is any change of residence it will be
intimated to the 1st petitioner.
7. Before leaving the matter, we cannot but
appreciate the 1st petitioner for having attempted to save his
marriage especially considering the special needs of the child
and we can only hope, for the benefit of the child, that wiser
counsel prevails on the mother too.
The writ petition would stand disposed of.
Sd/-
K.VINOD CHANDRAN,
JUDGE
Sd/-
ZIYAD RAHMAN A.A.,
JUDGE
sp/01/09/2021
//True Copy// P.A. To Judge
APPENDIX OF WP(CRL.) 197/2021
PETITIONERS' EXHIBITS:-
Exhibit P1 THE TRUE COPY OF THE MARRIAGE CERTIFICATE OF
THE 1ST PETITIONER AND THE DETENUE ISSUED
FROM THE SHORNUR MUNICIPALITY DATED
29/05/2012.
Exhibit P2 THE TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED FROM THE GREAT WESTERN HOSPITAL,
SWINDON, UK.
Exhibit P3 THE TRUE COPY OF THE RELEVANT PAGES OF THE
PASSPORT OF THE 1ST PETITIONER.
Exhibit P4 THE TRUE COPY OF THE RELEVANT PAGES PASSPORT
OF THE 1ST DETENUE.
Exhibit P5 THE TRUE COPY OF THE RELEVANT PAGES OF THE
PASSPORT OF THE 2ND DETENUE.
Exhibit P6 THE TRUE COPY OF THE FIR IN CRIME NO.514 OF
2021 OF THE SHORANUR POLICE STATION, PALAKKAD
DATED 31/07/2021.
