Siji Chandran vs Station House Officer,Punalur
2022 Latest Caselaw 9201 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 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                        WP(CRL.) NO. 479 OF 2022
PETITIONER:

          SIJI CHANDRAN, AGED 40 YEARS, S/O.BALACHANDRAN PILLAI,
          CHOOLATTU VEEDU, ERICHIKKAL, MANIYAT P.O., PUNALUR,
          KOLLAM DISTRICT 689 662.
          BY ADVS.
          M.KABANI DINESH
          S.R.REMYA

RESPONDENTS:

    1     STATION HOUSE OFFICER, PUNALUR POLICE STATION,
          KOLLAM 691 305.
    2     DISTRICT SUPERINTENDENT POLICE (RURAL),
          KOTTARAKKARA, KOLLAM 691 506.
    3     THE STATE POLICE CHIEF, POLICE HEAD QUARTERS,
          VAZHUTHACAUD,   THIRUVANANTHAPURAM 695 024.
    4     HONEYMOL M.K., AGED 30 YEARS
          D/O.KRISHNAVENI AMARAVATHI (14/597), CHEMBANKODE,
          EDAVATTOM P.O., THIRUVANANTHAPURAM 695 562.
*    5    KRISHNAVENI. L., D/O.CHELLAPPAN PILLAI,
          AMARAVATHY, CHEMPANCODE, KOTHAKULANGARA,
          ELAVATTOM P.O., THIRUVANANTHAPURAM-695 562.
*    6    THE CHILD WELFARE COMMITTEE, BEACH ROAD,
          PALLITHOTTAM, THAMARAKULAM, KOLLAM-691 001.


*         ADDL. R5 & R6 ARE SUO MOTU IMPLEADED AS PER ORDER
          DATED 14/07/2022
          BY ADV SREEJITH S.
          BY SRI.E.C.BINEESH, GOVERNMENT PLEADER
     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP Crl No.479/2022                         2




            K.VINOD CHANDRAN & C.JAYACHANDRAN,JJ
           -------------------------------------------
                  W.P.(Crl.) No.479 of 2022
            -------------------------------------------
           Dated this the 10th day of August, 2022

                                    JUDGMENT

Vinod Chandran, J.

The petitioner sought production of his minor

child, who is admittedly in the custody of the mother,

the 4th respondent. According to the petitioner, there

were marital discords and the petitioner and the 4th

respondent were estranged. The 4th respondent had

initiated proceedings under the Domestic Violence Act,

an order, in which was challenged by the petitioner

before the Sessions Court. Pending proceedings, the

disputes were amicably settled and monetary claims

were also satisfied as per Ext.P1 compromise

settlement, by which the petitioner was granted

visitation rights of his daughter. There was also a

maintenance of Rs.4,500/-, which the petitioner had to

pay the 4th respondent. There was an agreement to file

a joint petition for divorce, which has not

materialized, allegedly due to the non-cooperation of

the 4th respondent.

2. The petitioner was employed in Dubai and

the 4th respondent in the UAE. The child, whose

permanent custody was with the 4th respondent, was left

in the care of the maternal grandmother. The

petitioner, on coming back to India on leave,

approached the house of the 4th respondent to enforce

his visitation rights. However, the house was locked

and the neighbors did not have any idea about the

whereabouts of the child. It was hence he approached

this Court seeking a writ of habeus corpus. We

directed the child to be produced before the DLSA,

Thiruvananthapuram, on 03.06.2022, by order dated

01.06.2022.

3. On 03.06.2022, our direction was complied

with and the petitioner also interacted with the

child. The 4th respondent came online and interacted

with us. We allowed the child to have the company of

the father till 1.30 p.m., since the petitioner

submitted before us that he is leaving on the 5th and

sought interim custody of the child for two days. When

we interacted with the child, the child was seen

bonding with the father and was willing to go with the

father. We directed the DLSA, Thiruvananthapuram to

send the child with the father for two days with the

further direction that the child shall be entrusted

back to the maternal grandmother on the 5th before 5

p.m.

4. On 06.06.2022, again the matter came before

us, when it was submitted by the petitioner that on

attempting to return the child, in compliance of the

directions of this Court, there was a wordy

altercation, where the maternal grandmother insisted

that before handing over, the child should be

subjected to a medical examination. According to the

learned Counsel for the 4th respondent, there was some

altercation between the maternal and paternal

grandparents. In any event, since the father was going

abroad, we directed that the father will be allowed to

communicate with the child every day at 8 O'Clock

Indian time and we also directed the maternal

grandmother to comply with the directions.

5. On 14.06.2022, again the matter came up

before us, when it was submitted that the father has

extended his leave and he is continuing in the State.

Hence we directed that the father be granted custody

during the weekends, which was agreed to by the

learned Counsel appearing for the 4th respondent. We

directed that the father would pick up the child at 5

p.m on Friday and drop her back before 5 p.m on the

coming Sunday, in accordance with the order by the

Sessions Court, in an appeal from the order under the

Domestic Violence Act. The learned Counsel who

appeared for the 4th respondent, when the 4th respondent

also appeared before us in the digital platform,

informed us that suitable instructions will be given

to the maternal grandparents. The petitioner again

moved the case on the ground that he is residing in

Kollam and the maternal grandparents at

Thiruvananthapuram. In fact we had directed that the

child will not be taken out of the jurisdiction of the

Thiruvananthapuram on weekends. We modified the said

order and directed that the child shall not be taken

out of the Districts of Thiruvananthapuram and Kollam.

6. On 14.07.2022, the matter was pre-poned on

the submission made by the learned Counsel for the 4 th

respondent that the child is sick with fever. We heard

both parties and after recording the name of the

Doctor, who is treating the child, directed that the

father will ensure medical consultation. It was also

brought to our notice that there was resistance in

handing over the child as per our directions, which

prompted the petitioner to approach the Child Welfare

Committee, Kollam, in which Ext.C1 order was passed,

directing the child to be kept with the father for the

maximum period. We were of the opinion that the said

order would amount to interference with the orders

passed by us. We suo motu impleaded the "Child Welfare

Committee, Kollam" and directed them to file a report.

The report is filed with an apology, which we accept.

We note the submission of the Child Welfare Committee

that the petitioner, though had mentioned about the

writ petition, had not specifically appraised them

about the interim order passed by us. We also reckon

the fact that the Child-Line, Kollam had inquired into

the complaint and also interacted with the child by

report dated 03.07.2022. The result of the interaction

was stated to be that the child wants the company of

the petitioner, based on which the Child Welfare

Committee passed the order. It is also stated that

before the orders were passed, the child was subjected

to a counseling by a Grade Psychologist by name Arya

Raj G. We find that the report is relevant insofar as

deciding upon the interim custody of the child.

7. As of now the mother is working abroad and

the father, who was also working abroad, is now

permanently residing in his native place and there is

an application filed for custody before the Family

Court, Kottarakkara numbered as O.P.(G&W) No.106 of

2022.

8. Considering the overall circumstances and

also the attempt of the maternal grandparents to

somehow frustrate the orders passed by this Court, we

are of the opinion that the child can be continued in

the company of the father for the present, as long as

he is in station. We also reckon the report of the

Child Welfare Committee. The child shall not be taken

out of the Country without the permission of the

Family Court and if the father intends to go abroad,

he shall intimate the fact to the Family Court. The

Family Court shall then consider as to whether the

custody, when both the parents are abroad, can be

given to either the maternal or the paternal

grandmother. As of now, the child shall remain in the

custody of the father, especially since the mother is

abroad and on the mother reaching India, could always

approach the Family Court for interim custody. We make

it clear that the above direction to continue the

custody with the father is only on the special

circumstances arising herein. On any of the

contingencies above referred arising, the Family Court

would be entitled to consider the question of interim

custody of the child, untrammeled by the observations

herein. In the peculiar circumstance of this case, we

also direct the respective grandmothers be impleaded

in the O.P.(G&W), who will have a say before the

Family Court, only when both the parents are abroad.

The child shall be facilitated regular communication

with the mother on the digital platform at a suitable

time agreed upon between the parties.

The writ petition is disposed of.

Sd/-

K. VINOD CHANDRAN, JUDGE

Sd/-

C. JAYACHANDRAN, JUDGE

sp/11/08/2022

APPENDIX OF WP(CRL.) 479/2022

PETITIONER'S EXHIBITS:-

EXHIBIT P1 TRUE COPY OF THE COMPROMISE AGREEMENT DTD 26.2.2020 EXECUTED BY THE PETITIONER AND THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 29.05.2022 ISSUED BY THE OFFICE OF THE STATION HOUSE OFFICER, PUNALUR.

COURT EXHIBIT C1 THE ORDER OF THE CHILD WELFARE COMMITTEE DATED 05.07.2022