Kerala High Court
Shiny Sunny vs The Station House Officer on 20 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
WP(CRL.) NO. 401 OF 2022
PETITIONER:
SHINY SUNNY
AGED 30 YEARS
D/O. SUNNY,
HAILEYBURIA,
ESTATE, HAILEYBURIA, ELAPPARA,
IDUKKI DISTRICT, KERALA.
NOW WORKING AS STAFF NURSE AT ST. FINBARRS HOSPITAL,
SOUTH DOUGLAS ROAD, BALLINLOUGH, CO. CORK, PIN CODE-
P51 X6RX AND
RESIDING AT 4 OWENTARGLEN, RIVER VALLEY, MALLOW, CO.
CORK. REPRESENTED BY HER POWER OF ATTORNEY HOLDER
AND FATHER SUNNY., PIN - 685531
BY ADVS.
BIJU VIGNESWAR
B.PRAMOD
NISHA K.PETER
ASWATHI SURESH
RESPONDENTS:
1 THE STATION HOUSE OFFICER
PEERUMEDU POLICE STATION,
IDUKKI DISTRICT., PIN - 685531
2 THE STATION HOUSE OFFICER
RAMANATHAPURAM POLICE STATION
COIMBATORE,
TAMIL NĀDU ., PIN - 641041
3 DIJO GEORGE
RESIDING AT 15/74 RAHMAN SAIT COLONY,
SOWRIPALAYAM PIRIVU,
RAMANATHAPURAM, COIMBATORE,
TAMIL NĀDU ., PIN - 641041
4 K. L. GEORGE
RESIDING AT 15/74 RAHMAN SAIT COLONY,
WP(crl)NO.401/22
2
SOWRIPALAYAM PIRIVU,
RAMANATHAPURAM, COIMBATORE,
TAMIL NĀDU., PIN - 641041
5 DEENA GEORGE
RESIDING AT 15/74 RAHMAN SAIT COLONY,
SOWRIPALAYAM PIRIVU,
RAMANATHAPURAM, COIMBATORE,
TAMIL NĀDU ., PIN - 641041
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA
P.K.PRIYA
SRI.E.C.BINEESH-GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(crl)NO.401/22
3
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
-----------------------------------
WP(Crl).No.401 of 2022
-----------------------------------
Dated this the 20th May, 2022
JUDGMENT
K.Vinod Chandran, J.
The petitioner filed the above writ petition
alleging that her minor daughter, Elaina Tresa Dijo, aged
about 1 ½ years, has been abducted by her husband, the
father of the child, and she is deprived of any access to
the child. The Division Bench which heard the matter,
noticed the contention that the mother has been refused
permission even to interact with the child and permitted
the mother who was in Ireland, to have interaction with
the child at the Hospital where the child was stated to be
admitted and if the child is discharged, at the residence
of the 3rd respondent.
2. The matter was posted today, on which date the
parties are present before us. The child is very small and
does not even speak. But we witnessed the bonding between
the father and the child. The 3rd respondent has filed a
detailed reply affidavit.
3. From the submissions made before Court by the
WP(crl)NO.401/22
respective Counsel, admitted by both parties, it has come
out that the petitioner and 3rd respondent were in Ireland
and the child was also born in that Country. They came
back on 02.09.2021 and the Baptism of the child was
conducted at Coimbatore, where the 3rd respondent's family
is residing, the photographs of which were produced along
with the counter affidavit. The certificate of Baptism
and Confirmation issued by the Church in which the
function was conducted, is also produced as Ext.R3(a).
The petitioner left for Ireland on 03.10.2021 and then
approached an Agency in Ireland alleging domestic violence
when in fact, the 3rd respondent husband, was not in
Ireland.
4. The learned counsel for the petitioner submits
that there was a history of domestic violence and the
petitioner was misled to believe that the entire episodes
are over and hence her family attended the Baptism
ceremony. It was argued that after the Baptism ceremony,
the child was stealthily removed from the custody of the
mother and since she had to join back for work, she left
on 03.10.2021. These submissions are vehemently objected
to by the learned counsel for the respondents 3 and 4. It
is admitted that the relationship always went through
WP(crl)NO.401/22
rough weather, but due to the fault of the petitioner.
The couple, all the same, came to India together and also
conducted Baptism of the child. On 03.10.2021, after the
Baptism ceremony, it was the 3rd respondent who took the
petitioner to the Airport. The 4th respondent admitted that
there were marital discords but vehemently denied
allegation of any abduction of the child. There was no
cause for taking the child stealthily out of the custody
of the mother, is the submission, since she was left in
the custody of the father, when the mother left for
Ireland.
5. In any event, we see that the petitioner had gone
to Ireland on 03.10.2021 probably due to urgency of
joining back for work. No proceedings were taken within
India either before of after that for a long time. If the
child was stealthily removed and the petitioner was to
take the child with her to Ireland, definitely at least a
police complaint would have been raised. We also see that
the averment in the writ petition is that though there
were marital discords, petitioner along with the child
came to her marital home at Coimbatore for the Baptism of
the child. It is averred that from 20.09.2021, the 3rd
respondent came to the residence of the petitioner at
WP(crl)NO.401/22
Idukki and requested for the child's company in the
evening. For three days the child was returned promptly
and on the fourth day, abducted. The Baptism ceremony,
admittedly was on 22.09.2021, as recorded on Ext.R3(a).
In that event, the narration of the petitioner regarding
the child having been taken for an outing at Idukki for
four days from 20.09.2021 and not returned on the fourth
day is a deliberate falsehood. The petitioner has
approached this Court with unclean hands.
6. Learned counsel for respondents 3 and 4 also
submits that there was access provided to the mother, the
petitioner and she was constantly interacting with the
child over the mobile phone. The 3rd respondent stopped
such interaction only on receiving notice in the habeas
corpus petition. We also see that the habeas corpus
petition was filed on 06.05.2022 when the petitioner
complained that the child was stealthily removed from her
custody prior to 03.10.2021. The argument before us was
that no complaint or other legal steps were taken by the
petitioner because of her impending departure to Ireland.
However even according to the petitioner, as per the
narration we referred to, the child was abducted on
22.09.2021. She had sufficient time to, at least give a
WP(crl)NO.401/22
complaint, which again puts her arguments under the cloud
of suspicion.
7. After reaching Ireland, the petitioner also seems
to have attempted to take proceedings against the husband
on the allegation of assault and domestic violence. But
however, she was advised to approach Indian Courts as is
seen from Ext.P4. A person who provided legal assistance
to the petitioner at Ireland addressed the learned
counsel, at the High Court of Kerala by Ext.P4. It is very
pertinent that Ext.P4 document does not say of any
abduction or removal by stealth, of the child, from the
custody of the mother. We find no reason to upset the
status quo as on today regarding custody.
8. It is also submitted by the learned counsel for
the respondents 3 and 4 that after receipt of notice in
the habeas corpus petition, there is a Guardian OP filed
before the Court at Coimbatore. It would be appropriate
for the mother to contest the above petition. The learned
counsel for the petitioner sought for one weeks' custody,
before she leaves back to Ireland. We are not inclined,
considering the circumstances and especially the conduct
of the petitioner. In the above circumstances, we are not
inclined to pass any orders in the habeas corpus petition
WP(crl)NO.401/22
since we find that the child is not in any illegal
custody. We dismiss the writ petition, but leave open the
remedy of the parties to agitate their contentions before
the Family Court.
Sd/-
K.VINOD CHANDRAN
JUDGE
sd/-
C.JAYACHANDRAN,
JUDGE
lgk
WP(crl)NO.401/22
APPENDIX OF WP(CRL.) 401/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE MARRIAGE CERTIFICATE
DATED 06.11.2020 OF THE PETITIONER WITH
THE 3RD RESPONDENT ISSUED BY THE
REGISTRATION DEPARTMENT OF TAMIL NADU.
Exhibit P2 TRUE COPY OF THE BIRTH CERTIFICATE DATED
16.11.2020 OF THE CHILD ISSUED UNDER THE
CIVIL REGISTRATION ACT, 2004.
Exhibit P3 TRUE COPY OF THE COMPLAINT WHICH IS
MISTAKENLY DATED 07.08.2021 WITH ITS TYPED
COPY SUBMITTED BY THE PETITIONER BEFORE
THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE REPORT DATED 29.03.2022
BY THE WOMEN WELFARE AGENCY CALLED YANA.
Exhibit P5 PHOTOGRAPH OF THE CHILD WITH THE
PETITIONER.
Exhibit P6 TRUE COPY OF VISA OF THE CHILD, DETNEUE
HAVING VALIDITY UP TO 04.02.2022.
Exhibit P7 TRUE COPY OF THE PRINT OUT THE RELEVANT
PAGE OF THE INFORMATION/NOTICE IN THAT
REGARD PUBLISHED IN THE OFFICIAL WEBSITE
OF THE IRISH EMBASSY, INDIA.
RESPONDENT EXHIBITS
Exhibit R3(A) TRUE COPY OF THE CERTIFICATE ISSUED FROM
THE CHURCH DATED 11.05.2022.
Exhibit R3(B) THE PHOTOGRAPHS OF THE CEREMONY.
Exhibit R3(C) TRUE COPY OF THE RESULT OF THE PETITIONER
DATED 01.10.2021.
Exhibit R3(D) TRUE COPY OF THE APPOINTMENT ORDER DATED
15.03.2019 OF THE 3RD RESPONDENT.
PETITIONER EXHIBITS
Exhibit P8 TRUE COPY OF THE APPLICATION PREFERRED BY
THE PETITIONER BEFORE THE MEDICAL OFFICER
NM HOSPITAL, RAMANATHAPURAM, COIMBATORE
ALONG WITH THE MEDICAL OFFICER'S
ENDORSEMENT.
