Kerala High Court
Shajahan C.P vs The Deputy Superintendent Of ... on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
WP(CRL.) NO. 204 OF 2022
PETITIONER:
SHAJAHAN C.P.,
AGED 46 YEARS,
SON OF MOIDEENKUTTY C.P.,
CHERUPARAMBIL HOUSE,
VAVOORKUNNU,
CODACAL P.O.,
MALAPPURAM DISTRICT., PIN - 676108
BY ADV C.M.MOHAMMED IQUABAL
RESPONDENTS:
1 THE DEPUTY SUPERINTENDENT OF POLICE
TIRUR, TIRUR P.O.,
MALAPPURAM DISTRICT, PIN - 676101
2 THE CIRCLE INSPECTOR OF POLICE
TIRUR POLICE STATION, TIRUR P.O,
MALAPPURAM DISTRICT, PIN - 676101
3 THE STATION HOUSE OFFICER
TIRUR POLICE STATION, TIRUR P.O,
MALAPPURAM DISTRICT., PIN - 676101
4 SAFARUNNISA
DAUGHTER OF LATE CHIRAYIL HUSSAINKUTTY,
CHIRAYIL HOUSE, PARIYAPURAM, PACHATTIRI P.O.,
TIRUR TALUK, MALAPPURAM DISTRICT,, PIN - 676105
5 ILLIKKAL BUSHARA
WIFE OF LATE CHIRAYIL HUSSAINKUTTY,
CHIRAYIL HOUSE, PARIYAPURAM, PACHATTIRI P.O.,
TIRUR TALUK, MALAPPURAM DISTRICT,, PIN - 676105
OTHER PRESENT:
SRI.E.C.BINEESH - GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl) No.204 of 2022
2
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
---------------------------------------
W.P(Crl.)No. 204 of 2022
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Dated this the 02nd day of March, 2022
JUDGMENT
Jayachandran, J.
The petitioner herein is the father of two
minor children, the alleged detenues. He seeks
issuance of a writ of Habeas Corpus, directing
production of the detenues before this Court, and to
release them to the petitioner from the illegal
detention of respondents 4 and 5, who are the mother
and grand mother respectively of the minor children.
2. The petitioner would aver that he married
the 4th respondent and three children were born in
that wed-lock. The relationship between the
petitioner and the 4th respondent got strained and as
per Ext.P1 agreement, the petitioner divorced the 4th
W.P.(Crl) No.204 of 2022
respondent. Ext.P1 stipulates that the three minor
children will be in the custody of the 4th
respondent/mother and that the petitioner is liable
to maintain them. Ext.P1 also reserves the
petitioner's right to visit the children. Out of
three children, the elder one attained majority.
while so, the 4th respondent contracted another
marriage and she is living with her husband, leaving
the children to the custody of her mother/5 th
respondent. The 4th respondent/wife is taking hasty
steps to go abroad, along with the children, so as
to defeat the visitorial rights of the petitioner.
By virtue of Ext.P2, the petitioner preferred
representation before the Passport Officer, opposing
issuance of passport to the minor children. The
money order sent on behalf of the minor children was
returned, which indicates that the minors have been
moved from the house of respondents 4 and 5. On
such premise, the petitioner seeks the relief above
W.P.(Crl) No.204 of 2022
referred.
3. Heard learned counsel for the petitioner and
the learned Public Prosecutor. Perused the records.
4. Having heard learned counsel for the
petitioner, we are not inclined to admit and proceed
with this writ petition. Primarily, we do not find
any illegal detention of the minor children, so as
to enable the petitioner to seek issuance of a writ
of Habeas Corpus. As per the very showing in the
writ petition, the children are in the custody of
none other than their mother, which is in accord
with Ext.P1 agreement of divorce. The petitioner's
grievance is that the 4th respondent married another
person and that they propose to go abroad along with
the children, so as to defeat his visitorial rights.
We are of the opinion that the internecine issue
between the petitioner and the 4th respondent is to
be resolved by initiating appropriate proceedings
before the jurisdictional Family Court and not by
W.P.(Crl) No.204 of 2022
resorting to an extra ordinary constitutional remedy
in the nature of writ of Habeas Corpus. A writ
petition in disguise of such remedy before the
Family Court can hardly be countenanced.
In the circumstances, reserving the petitioner's
right to move the jurisdictional Family Court for
appropriate remedies, this writ petition will stand
dismissed.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
NR/02/03/2022
W.P.(Crl) No.204 of 2022
APPENDIX
PETITIONER'S EXHIBITS
Exhibit -P1 THE TRUE COPY OF THE AGREEMENT BETWEEN THE
PETITIONER AND THE 4TH RESPONDENT DATED
12.11.2019
Exhibit -P2 THE TRUE COPY OF THE REPRESENTATION FILED BY THE
PETITIONER BEFORE THE PASSPORT OFFICER, REGIONAL
PASSPORT OFFICE, KOZHIKODE, DATED 12.2.2022
Exhibit -P3 THE TRUE COPY OF THE MONEY ORDER RECEIPT NO.66
ISSUED BY THE POST MASTER, TRIPRANGODE POST
OFFICE DATED 23.2.2022
Exhibit -P4 THE TRUE COPY OF THE MONEY ORDER RECEIPT NO.67
ISSUED BY THE POST MASTER, TRIPRANGODE POST
OFFICE DATED 23.2.2022
Exhibit -P5 THE TRUE COPY OF THE TRACK CONSIGNMENT ISSUED BY
INDIA POST DATED 26.2.2022
