Kerala High Court
Ansala K.A vs Union Of India on 19 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
WP(CRL.)NO.861 OF 2023
PETITIONER :-
ANSALA K.A, AGED 43 YEARS
W/O.ROSHAN GEORGE, HOUSE NO.3/477,
MURIYAD PANCHAYATH, ANANDAPURAM NELLAI ROAD,
NEAR THARAYILAKAD ANGANAVADI
AVITTATHUR, THRISSUR, PIN - 680 305.
BY ADVS.
AYSHA YOUSEFF
MOLLY JACOB
JOBI.A.THAMPI
ASHIFA YOUSEFF
C.M.EBRAHIM
SHOUKATH HUSAIN
AKHEELA FARZANA
RABIA BEEGAM T.K.
RESPONDENTS :-
1 UNION OF INDIA
REP.BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF EXTERNAL AFFAIRS,
NEW DELHI, PIN - 110 001
2 STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HOME AFFAIRS, KERALA ,
THIRUVANANTHAPURAM, PIN - 695 001.
3 THE DIRECTOR GENERAL OF POLICE (STATE POLICE CHIEF)
KERALA, THIRUVANANTHAPURAM, PIN - 695 004
4 ROSHAN GEORGE,
S/O.GEORGE, AVANOOKKARAN HOUSE, KIZHAKKUMPATTUKARA,
PERINGAVU VILLAGE, THRISSUR DISTRICT - 680 008,
NOW RESIDING AT FLAT NO.13 ,BUILDING NO.1870,
WAY NO.1924, DARSAIT, OMAN.
WP(CRL.)NO.861 OF 2023
-: 2 :-
5 ANNAMMA @ SANTHA, AGED 57 YEARS
W/O.KAIPPAN PLAKKIL VEETTIL ANTONY,
AMBALLOOR VILLAGE, VARAKKARA DESOM,
MUKUNDAPURAM TALUK, THRISSUR, PIN - 683 301.
ADDL.6 THE UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF HOME AFFAIRS, NEW DELHI
IS SUO MOTU IMPLEADED AS ADDL.R6 VIDE ORDER DATED
25/08/2023 IN WP(CRL.)861/2023(S)
ADDL.7 ELDO K.MATHEW, AGED 51,
AUTHORIZED TRUSTEE, EMPEROR EMMANUEL CHURCH,
MURIYAD P.O., MUKUNDAPURAM TALUK,
THRISSUR DISTRICT.
ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER
DATED 19.10.2023 IN I.A.No.1/2023.
BY ADVS.
NISHA GEORGE
MANU S., DSG OF INDIA
SHAJI THANKAPPAN
SUBIN K SUDHEER
AMAL BABY
AJAY GOPAL
SANDHYA SUDHEER
P.NARAYANAN, SENIOR G.P.
SRI.P.M.SHAMEER, GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 9.10.2023, THE COURT ON 19.10.2023 DELIVERED THE
FOLLOWING:
WP(CRL.)NO.861 OF 2023
-: 3 :-
ANU SIVARAMAN, J. & C. JAYACHANDRAN, J.
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W.P.(Crl.) No.861 of 2023
---------------------------------------------------------
Dated this the 19th day of October, 2023
JUDGMENT
Anu Sivaraman, J.
This writ petition is filed seeking the following reliefs :-
"a) Issue a writ of Habeas Corpus to the 3 rd respondent or
any police officer concerned to immediately take steps
to trace out the detenues and produce them before this
Hon'ble Court and release them to the petitioner.
b) Issue a writ, or direction to the 4 th respondent to ensure
the safety and security o the detenues.
c) Issue appropriate direction to the 2nd respondent to take
appropriate action invoking the parens patriae
jurisdiction and responsibility of the 2nd respondent, and
to bring back the detenues from abroad."
2. Heard the learned counsel for the petitioner and the
learned Government Pleader.
3. It is submitted that the petitioner is the wife of the 4 th
respondent and the 5th respondent is the mother of the petitioner.
It is stated that the 4th respondent has illegally taken away two
minor children of the petitioner without her knowledge and
consent to Muscat in Oman and that she is not being allowed to
contact the children. It is stated that GOP No.352/2020 is
WP(CRL.)NO.861 OF 2023
pending before the Family Court, Irinjalakuda and since the
children have been taken out of India, the petitioner was
permitted to have video call with the children on every Friday,
but, in spite of repeated efforts of the petitioner, she is not able
to speak with the children on WhatsApp call or video call because
the 4th respondent is preventing the children from talking to the
petitioner. It is stated that I.A. No.5/2020 was filed in GOP
No.352/2020 as evidenced by Ext.P8 and a relief was sought to
send back the children to the native place to stay with the
petitioner. However, the said I.A. has been adjourned
repeatedly. Further, it is stated that representations have been
submitted before respondents 1 and 3 on 21.7.2023 as evidenced
by Exts.P9 and P10, but no steps have been taken in that regard.
It is contended that the lives of the children are at peril and that
therefore, this Court ought to direct the production of the
children before this Court since they are under illegal detention.
4. Respondents 4 and 5 have filed a detailed counter
affidavit stating that there are three children in the wedlock
between the petitioner and the 4th respondent. It is stated that
the 4th respondent and the petitioner were residing in Muscat
WP(CRL.)NO.861 OF 2023
with the children and the children were studying there. It is
stated that the petitioner joined a Christian Congregation called
Emperor Emmanuel Church and this was the reason for the
marital discord between the petitioner and the 4th respondent. It
is submitted that there was an earlier Original Petition filed
before the Family Court seeking custody of the children and the
petitioner had taken the passports and other documents of the
children with her. It is stated that the 4 th respondent had also
filed a man missing complaint since the petitioner was missing
with the three children from 4.1.2020 and the petitioner was
produced before the Judicial First Class Magistrate Court and the
children were entrusted with the 5th respondent. It is submitted
that Ext.P2 order was issued by the Family Court directing the
petitioner to hand over the passports and other documents of the
children to the 5th respondent. Complaints were preferred before
the police, the Government as well as the Child Welfare
Committee. The petitioner had approached this Court as well
and Ext.P3 judgment was passed in O.P.(FC) No.108/2020. It is
stated that it was pursuant to the interim order passed by this
Court that the passports of the children, resident cards and their
WP(CRL.)NO.861 OF 2023
medical allowance cards were handed over to the 5 th respondent
and the matter was directed to be considered by the Family
Court in the Original Petition. It is submitted that it was with the
full knowledge and permission of the Family Court that the
children were taken by the 4th respondent to Muscat. It is stated
that the children are staying peacefully with the 4th respondent at
Muscat and that they are under no illegal detention whatsoever.
5. The 7th respondent has filed an impleading petition
seeking to get himself impleaded as a party to the writ petition.
It is contended that there are allegations raised against the
Congregation of Emperor Emmanuel Church in the counter
affidavit filed by respondents 4 and 5 and therefore, the 7 th
respondent is to be impleaded in the writ petition and his
contentions have also to be considered.
6. Having considered the contentions advanced, we
notice that the only question that requires a consideration is
whether the children are under illegal detention by the 4th
respondent. It is evident from the materials placed on record
that it was pursuant to the orders of the Family Court in Ext.P2,
as confirmed in Ext.P3, that the passports and the related
WP(CRL.)NO.861 OF 2023
documents of the children were handed over to the 5th
respondent, who is the mother of the petitioner.
7. The 5th respondent has sworn to an affidavit that the
children were studying in Muscat and that in the best interests of
the children, it was highly necessary that they may be permitted
to accompany the 4th respondent, who is their father to Oman and
that they had proceeded to Oman on their own free will and
volition. Ext.R5(k) judgment of a Division Bench of this Court, to
which, one of us (C. Jayachandran, J.) was a party, was also
placed on record to contend that this Court had interacted with
the children and had ascertained their wish to accompany the 4 th
respondent. A reading of the said judgment has convinced us
without any element of doubt that the children were not taken
away forcibly by the 4th respondent as contended in the writ
petition and that the question is only with regard to custody and
visitorial rights to the children and does not involve any illegal
detention or forceful taking away of the children by the 4 th
respondent.
In the above view of the matter, we are of the opinion
that the W.P.(Crl.) is not maintainable since there is no illegal
WP(CRL.)NO.861 OF 2023
restraint or detention of the children by their father. However,
we make it clear that all we have stated above is only for a
consideration of this writ petition and will have absolutely no
bearing on the consideration of the matter by the Family Court
which shall proceed strictly in accordance with the materials and
the evidence on record and after ascertaining the wishes and
looking into the best interests of the children from time to time.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN
JUDGE
Sd/-
C. JAYACHANDRAN
JUDGE
Jvt/11.10.2023
WP(CRL.)NO.861 OF 2023
APPENDIX OF WP(CRL.)861/2023
PETITIONER EXHIBITS :-
Exhibit P1 TRUE COPY OF OP NO. 53\2020 FILED BY THE
PETITIONER BEFORE THE FAMILY COURT, THRISSUR
Exhibit P2 TRUE COPY OF THE INTERIM ORDER DT. 5.02.2020 IN
I.A NO. 3\2020 IN OP. NO. 53/2020
Exhibit 3 TRUE COPY OF THE JUDGEMENT DATED 28.2.2020
PASSED BY THIS HON'BLE COURT IN OP(FC) NO.
108/2020 .
Exhibit P4 TRUE COPY OF THE INTERIM ORDER IN I.A.
NO.1/2022 IN G.O.P. NO.352/2020 FILED BY THE
PETITIONER BEFORE THE FAMILY COURT,
IRINJALAKKUDA
Exhibit P5 TRUE COPY OF THE FIR NO.0042 DATED 06.01.2020
OF THE THRISSUR EAST POLICE STATION
Exhibit P6 COPY OF THE FINAL REPORT IN CRIME NO.42/2020 OF
THE TOWN EAST POLICE STATION, THRISSUR
Exhibit P7 TRUE COPY OF THE ORDER DATED 09.01.2020 OF THE
LEARNED FIRST CLASS MAGISTRATE, THRISSUR
Exhibit P8 TRUE COPY OF I.A. NO.5/2020 IN G.O.P.
NO.352/2020 FILED BY THE PETITIONER BEFORE THE
FAMILY COURT, IRINJALAKUDA ALONG WITH
ADDITIONAL AFFIDAVIT
Exhibit P9 TRUE COPY OF THE REPRESENTATION DT.21.07.2023
TO THE 1ST RESPONDENT.
Exhibit P10 TRUE COPY OF THE REPRESENTATION DT.21.07.2023
TO THE 3RD RESPONDENT.
Exhibit P 11 TRUE COPY OF THE PROCEEDINGS IN O.P. NO.
53/2020 BEFORE FAMILY COURT THRISSUR
Exhibit P 12 TRUE COPY OF THE PROCEEDINGS IN G.O.P. NO.
352/2020 BEFORE FAMILY COURT IRIJALAKUDA
WP(CRL.)NO.861 OF 2023
RESPONDENT EXHIBITS :-
Exhibit-R5(a) TRUE COPY OF THE COMPLAINT DATED 14.1.2020
GIVEN BY SHANTI BABY BEFORE THE HONOURABLE
CHIEF MINISTER OF KERALA.
Exhibit-R5(b) TRUE COPY OF THE COMPLAINT SUBMITTED IN JANUARY
2020 GIVEN BY ONE JOY TO THE HONOURABLE CHIEF
MINISTER
Exhibit-R5(c) TRUE COPY OF THE MASS PETITION DATED 28.8.2019
SUBMITTED TO THE HONOURABLE PRESIDENT OF INDIA
Exhibit-R5(d) TRUE COPY OF THE NEWS ITEM DATED 9.1.2023
APPEARED ON WWW.OPINDIA.COM
Exhibit-R5(e) TRUE COPY OF THE STATEMENT DATED NIL GIVEN BY
ONE EBINOVE ROSHAN, BEFORE THE LEARNED
MAGISTRATE
Exhibit-R5(f) COPY OF THE STATEMENT DATED 9.1.2020 GIVEN BY
ONE ANJU MARIA, BEFORE THE LEARNED MAGISTRATE.
Exhibit-R5(g) TRUE COPY OF THE COMPLAINT DATED 14.1.2020
SUBMITTED BY THE 4TH RESPONDENT BEFORE THE
CHIEF MINISTER
Exhibit-R5(h) TRUE COPY OF THE COMPLAINT DATED 12.02.2020
SUBMITTED BY EBINOVE ROSHAN BEFORE THE POLICE
STATION
Exhibit-R5(i) TRUE COPY OF THE COMPLAINT DATED 03.02.2020
SUBMITTED BY THE 5TH RESPONDENT
Exhibit-R5(j) TRUE COPY OF G.O.P. NO. 352/2020 DATED NIL
FILED BEFORE THE FAMILY COURT, IRINJALAKUDA
Exhibit-R5(k) TRUE COPY OF THE JUDGMENT DATED 10.2.2022 IN
W.P. (CRL) NO. 507/2021 PASSED BY THIS HON'BLE
COURT.
Exhibit R7(a) A TRUE PHOTOCOPY OF THE JUDGMENT DATED
28.03.2023 IN S.C.NO.515/2018 OF THE FAST TRACK
WP(CRL.)NO.861 OF 2023
SPECIAL COURT(POCSO), IRINJALAKKUDA
Exhibit R7(b) TRUE PHOTOCOPY OF THE REFER NOTICE
NO.3/RC/J4/2020 BY ALOOR POLICE TO THE PHILIP
JOSEPH
Exhibit R7(c) THE TRUE PHOTOCOPY OF THE FIR NO.0024/2023
DATED 06.01.2023
Exhibit R7(d) TRUE PHOTO COPY OF THE FIR NO.0370/2023 OF
ALOOR POLICE STATION
Exhibit R7(e) A TRUE PHOTOCOPY OF THE REPLY
NO.16/RIACT/J4/2020 DATED 20.06.2020 ISSUED BY
THE PUBLIC INFORMATION OFFICER, ALOOR POLICE
STATION UNDER RIGHT TO INFORMATION ACT IS
PRODUCED HEREWITH AND MARKED AS EXHIBIT R6(E)
