Kerala High Court
Habeeba T.K vs State Of Kerala on 7 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
WP(CRL.) NO. 906 OF 2022
PETITIONER:
HABEEBA T.K.,
AGED 37 YEARS, W/O SIJAD, SEELAN COTTAGE, MUTHUKULAM NORTH,
MUTHUKULA, CHOOLATHERUVU, KARTHIKAPPALLY, ALAPPUZHA DISTRICT -
690506 PRESENTLY RESIDING AT FIRDOUSE MANZIL, R.C., CHURCH ROAD,
MEDAYIL MUKKU, KAYAMKULAM 690502.
BY ADV SERGI JOSEPH THOMAS
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT - 695001.
2 THE DIRECTOR GENERAL OF POLICE,
KERALA, OFFICE OF THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695010.
3 THE DISTRICT POLICE CHIEF, ALAPPUZHA,
OFFICE OF THE DISTRICT POLICE CHIEF, CIVIL STATION WARD,
ALAPPUZHA DISTRICT - 688012.
4 THE DEPUTY SUPERINTENDENT OF POLICE,
KAYAMKULAM - 690502.
5 CIRCLE INSPECTOR OF POLICE,
KANAKAKUNNU POLICE STATION, ALAPPUZHA DISTRICT - 690535.
6 SUB INSPECTOR OF POLICE,
KANAKAKUNNU POLICE STATION, ALAPPUZHA DISTRICT - 690535.
7 SIJAD,
S/O SIDDHIQUE, SEELAN COTTAGE, MUTHUKULAM NORTH, MUTHUKULAM,
CHOOLATHERUVU, KARTHIKAPPALLY, ALAPPUZHA DISTRICT - 690506.
8 SIDDHIQUE, SEELAN COTTAGE, MUTHUKULAM NORTH, MUTHUKULAM,
CHOOLATHERUVU, KARTHIKAPPALLY, ALAPPUZHA DISTRICT - 690506.
9 ZAINABA, W/O SIDDHIQUE,
SEELAN COTTAGE, MUTHUKULAM NORTH, MUTHUKULAM, CHOOLATHERUVU,
KARTHIKAPPALLY, ALAPPUZHA DISTRICT - 690506.
BY ADVS.
ARUN CHANDRAN
HARIMOHAN
OTHER PRESENT:
SRI. ALEX M.THOMBRA-SR.GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & SOPHY THOMAS, JJ.
-------------------------------------------------------------------------
W.P. (Crl) No.906 2022
--------------------------------------------------------------------
Dated this the 07th day of October, 2022
JUDGMENT
Alexander Thomas, J.
The prayers in the instant Writ Petition (Criminal) are as follows:-
"A) to issue a writ of habeas corpus or such other appropriate writ
order or direction commanding and compelling the respondents 1
to 6 to produce the corpus of Arshak S. and Ashfak S, aged 11
years, before this Hon'ble Court and to set them free.
B) pass such other writ order or direction that this Court may deem
fit and proper in the facts and circumstances of the case;
C) and to award the cost of this petition
D) dispense with filing of English translation of vernacular
documents "
2. Heard Sri.Sergi Joseph Thomas, learned counsel appearing
for the petitioner, Sri.Alex M. Thombra, learned Public Prosecutor,
appearing for official respondents 1 to 6 and Sri.Arun Chandran,
learned counsel appearing for contesting respondents 7 to 9 (husband,
husband's father and husband's mother, respectively of the petitioner).
3. The case set up in the above writ petition (civil) is that the
petitioner is married to the 7th respondent and in that marital
relationship, 3 children are born and that the elder 2 children are
twins, aged 11 years, and that they are S. Arshak & S. Ashfak,
respectively. That, the marital relationship between the petitioner
and the 7th respondent is now faced rough weathers and that the 7th
respondent has illegally taken the custody of S. Arshak & S. Ashfak,
aged 11 years, and that they are under the legal illegal detention of
R7, R8 & R9 and that the petitioner is now forced to live in her
parental home, etc. Pursuant to the order dated 29.09.2022, the 2
alleged detenus (the abovesaid minor sons of the petitioner-S.
Arshak & S. Ashfak), have been produced before this Court. The
petitioner and the 7th respondent are also personally present before
this Court. The 7th respondent would claim that the custody of the
children have always been with him ever-since the petitioner left her
marital home, about 1 ½ months back and that he has not, in any
manner, illegally taken the custody of those children and those
children continued to remain under the custodial care of the 7 th
respondent, even after the petitioner had left him. Whereas, the
petitioner had only taken third child (minor son aged 4 years), with
her, to her parental home.
4. Whereas the petitioner would reiterates allegations of
illegal custody, etc.
5. Sri.Arun Chandran, learned counsel appearing for R7 to
R9, would submits that his parties have received notice only
yesterday and that they may be given time to file counter affidavit to
state their case in the matter.
6. After hearing both sides, we note the basic nature of the
rival pleas made in this case. After considering the rival pleas, we are
not in a position to hold that the present custody of the 2 minor
children with the 7th respondent, who is their father, can be said to be
grossly illegal or unlawful. This we say so, only from the limited
perspective of consideration of the plea for habeas corpus and not
from any other perspective. For such cases, the appropriate remedy
for the aggrieved party is to approach the Family Court, by filing
appropriate petition under the Guardianship and Wards Act, seeking
for custody/interim custody, etc., of the children.
7. Both sides apprise us that the jurisdictional Family Court
concerned is the one at Mavelikkara (Alappuzha District).
8. Accordingly, liberty is accorded to the petitioner to file
appropriate petition claiming custody and interim custody of the
children before the jurisdictional Family Court, concerned, along
with necessary application. On receipt of such petition, the Family
Court will ensure that both sides are heard and orders shall be
passed on the plea for interim custody, without much delay,
preferably within a period of 5 weeks, from the date of service of
notice of the said petition on the respondent therein. All issues
relating to the adjudication of such custody before the Family Court
are left open to be raised and decided on those proceedings. We
make it clear that none of the observations and findings made by this
Court in this plea for Habeas Corpus shall not, in any manner,
influence either on the adjudication of the final pleas or the interim
pleas before the Family Court.
9. Sri.Sergi Joseph Thomas, learned counsel appearing for
the petitioner, submits that until the matter is decided by the Family
Court, this Court may direct the 7th respondent to permit the
petitioner to visit the children in the residence of the 7 th respondent
twice in a week for half an hour or so.
10. The said plea is strongly opposed by learned counsel
appearing for R7 to R9 on the ground that those issues are to be
decided by the Family Court.
11. Alternatively, Sri.Sergi Joseph Thomas, learned counsel
appearing for the petitioner, submits that, then, this Court may issue
a direction that the petitioner should be given facility to have contact
with the above children through video call, twice in a week.
12. The learned counsel appearing for R7 to R9 does not
fairly oppose the said plea.
13. Accordingly it is ordered that R7 to R9 shall permit the
petitioner to have interaction with the above children through
video/audio call, depending on his choice, from 6 p.m. to 6.30 p.m.,
on all Fridays and Saturdays.
With these observations and directions the above writ petition
(criminal) will stand disposed of.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
SOPHY THOMAS,
JUDGE
Skk//07102022
W.P. (Crl) No.906 of 2022
APPENDIX OF WP(CRL.) 906/2022
PETITIONER'S EXHIBITS:-
EXHIBIT P1 THE TRUE COPY OF THE FIR IN CRIME NO. 283 OF
2022 OF THE KANAKAKUNNU POLICE STATION.
EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT DATED
27/08/2022 SUBMITTED BEFORE THE DYSP,
KAYAMKULAM BY THE PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE COMPLAINT DATED
05/09/2022 SUBMITTED BY THE PETITIONER BEFORE
THE 5TH RESPONDENT.
EXHIBIT P4 THE TRUE COPY OF THE COMPLAINT DATED
06/09/2022 SUBMITTED BY THE PETITIONER BEFORE
THE 5TH RESPONDENT.
RESPONDENTS' EXHIBITS:- NIL
