Abdul Khader vs State Of Kerala
2024 Latest Caselaw 8629 Ker

Kerala High Court

Abdul Khader vs State Of Kerala on 27 March, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

                                    &

                  THE HONOURABLE MR. JUSTICE P.M.MANOJ

        WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946

                        WP(CRL.) NO. 319 OF 2024

        CRIME NO.329/2024 OF Hill Palace Police Station, Ernakulam

PETITIONER/S:


            ABDUL KHADER, AGED 33 YEARS
            S/O. ALIKUNJU, PETRO PALACE, FLAT NO.14C, KARINGACHIRA,
            THRIPPUNITHURA, ERNAKULAM., PIN - 682301

            BY ADVS.
            R.ANIL
            SUJESH MENON V.B.
            THOMAS SABU VADAKEKUT
            MAHESH BHANU S.
            RESSIL LONAN
            ANANTH KRISHNA K.S.
            B.RAMAN PILLAI (SR.)
            JOEL GEORGE KAMPIYIL

RESPONDENT/S:


    1       STATE OF KERALA
            REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME
            DEPARTMENT, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM,
            PIN - 695001
    2       COMMISSIONER OF POLICE
            COCHIIN CITY, ERNAKULAM,, PIN - 682031
    3       STATION HOUSE OFFICER
            HILL PALACE POLICE STATION, ERNAKULAM, PIN - 682301
    4       SALMA IRFANA, AGED 21 YEARS
      W.P.(Crl.) No.319 of 2024
                                     2




            D/O.MOHAMMED IQUBAL, KAZHI LANE,
            THALANGARA, KASARGOD, PIN - 671122
    5       JABIR.H.M, AGED 25 YEARS
            S/O.SHAHUL HAMEED, THERUVATH CERAMICS ROAD, PRIYA QUARTHERS,
            THALANKARA, KASARGOD, PIN - 671122
    6       SUHARA ( SOUGHT TO BE IMPLEADED )
            W/O. IQBAL, RESIDING AT MALIKHDEENAR MANZIL, KAZI LANE,
            THALANGARA P.O., KASARGOD DISTRICT ( SOUGHT TO BE IMPLEADED)

            BY ADVS.
            THAREEK T.S., SEBASTIAN PHILIP
            C.C.ANOOP(K/1161/2010)
            R.ANAS MUHAMMED SHAMNAD(K/590/2012)
            SRI.B.VINOD, CGC(CG-204)
            MOHANAN PILLAI M.B.(K/2002/2023)

            SRI SAIGI JACOB PALATTY, SR. GP.

     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON

27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(Crl.) No.319 of 2024
                                      3




                                 JUDGMENT

Raja Vijayaraghavan, J.

The petitioner is the husband of the "Corpus" (referred to as "Ms. X"

for ease). They have a child, who is now aged two years. It is the case of

the petitioner that his marriage with Ms. X was solemnized on 04.01.2021.

He states that on 18.03.2024, Ms. X and his minor son were found

missing. According to him, Ms. X has been in an affair with the 5th

respondent before marriage and he has received reliable information that

she has been abducted by the 5th respondent and is kept under illegal

confinement. He states that he has lodged a complaint before the police

leading to the registration of Ext.P2 FIR under Section 57 of the Kerala

Police Act, 2011. According to the petitioner, the 5th respondent with

whom Ms. X has eloped with the minor child is a person with criminal

antecedents. It is on these assertions that this writ petition was filed

seeking writ of habeas corpus to produce Ms. X and the minor child before

this court and set them at liberty.

2. When this petition had come up for consideration on

26.03.2024, it was brought to the notice of this Court that "Ms. X" has

been traced out and she has been produced before the Judicial First Class

Magistrate Court, Tripunithura.

3. This Court, by order dated 26.03.2024 directed the 3rd

respondent to produce Ms. X before this Court along with her minor child.

4. In tune with the directions, the 4th respondent and the minor

child were produced before us.

5. We have interacted with the 4th respondent, her parents as

well as the petitioner.

6. The 4th respondent is an adult lady aged 21 years. She

insisted that she was not in illegal detention and she had left the company

of the petitioner of her own free volition. She stated that she was

subjected to physical and mental abuse by the petitioner and expressed no

desire to stay with him. Despite her complaints to her parents, they sided

with the petitioner, insisting that she continue to live with him and

preserve the family's reputation. She states that the 5th respondent has

granted her refuge and she is desirous of going with him. She emphasized

that she is an adult and she is the best suited person to take care of her

child.

7. The contention of the parents of the 4th respondent as well as

the petitioner is that the minor child would not be safe as the 4th

respondent would be in the company of the 5th respondent, a person with

criminal antecedents.

8. Since we were troubled by the assertion and about the

well-being of the child if he is retained by his mother, we directed "Ms. X'

as well as the petitioner to appear before the High Court Legal Service

Committee, and the Committee was directed to provide the service of a

Counselor at the Family Counselling Centre. Directions were issued to the

Counsellor to interact with the parties and to place the report before this

Court within two hours.

9. The matter was later taken up before this Court along with

the report. We have again interacted with the 4th respondent, who

reiterated her grievances against the petitioner. She further stated that she

is breastfeeding her child and she is the best person to ensure that no

harm would befall the child. According to her, the child would need her

company, care, and protection. In response to the contention of the

petitioner and her family members that Ms. X and the child has no place to

reside and that they would be deprived of the company of the child, it is

submitted by Ms. X that she would convey her address and phone number

to her parents and the petitioner and she has no objection in them visiting

her or the child.

10. The learned counsel appearing for the petitioner submits that

the minor child would not be safe while Ms. X is in the company of the 5th

respondent. According to the learned counsel, the parents of the 4th

respondent be entrusted with the child and the mother can be granted

visitation rights.

11. We have carefully considered the submissions advanced.

12. In a petition for the issue of a writ of Habeas Corpus, we are

only concerned with the question whether the alleged detenu is detained

against her wish, will, and desire by anyone. The correctness, prudence or

wisdom of the decisions of the alleged detenu are not justiciable before

the Court. The alleged detenu, as noted earlier, is an adult woman. The

alleged detenu has stated before this Court that she is not under illegal

confinement. We do not think that it would be appropriate or feasible to

separate the baby boy from the mother in the facts and circumstances,

particularly at the breastfeeding stage. It is for the petitioner to approach

the jurisdictional Family Court and seek custody or visitation rights.

13. In Devu G. Nair1, the Apex Court has formulated guidelines

for the Courts dealing with Habeas Corpus petitions. It was ordered that if

the allegedly detained or missing person expresses their wish to not go

back to the alleged detainer or the natal family, then the person must be

released immediately without any further delay.

Devu G. Nair v. State of Kerala [2024 KHC OnLine 6157]

14. The petitioner is not entitled to any of the reliefs. sought for.

This petition is disposed of.

sd/-

RAJA VIJAYARAGHAVAN V, JUDGE

sd/-

P.M.MANOJ JUDGE das

APPENDIX OF WP(CRL.) 319/2024

PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE BIRTH CERTIFICATE DATED 25-3-2022 OF THE BABY BOY MOHAMMED MOYNUDHEEN ISSUED BY THE CORPORATION OF MANGALORE Exhibit-P2 TRUE COPY OF THE FIRST INFORMATION REPORT NO.329 OF 2024 OF HILL PALACE POLICE STATION