Kerala High Court

Asha Rajagopal vs Rajagopal on 5 November, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

WP(CRL.) NO. 1145 OF 2024        :: 1 ::              2024:KER:82604




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                                     &

               THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

      TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946

                          WP(CRL.) NO. 1145 OF 2024


PETITIONER:

              x x x x x
              x x x x x
              x x x x x


              BY ADV.R.GOPAN


RESPONDENTS:

     1        x x x x x


     2        x x x x x


     3        x x x x x


     4        STATION HOUSE OFFICER, KOTTAYAM WEST POLICE STATION,
              KOTTAYAM DISTRICT, PIN - 686001

              BY ADVS.J.R.PREM NAVAZ J.R
              ADVOCATE GENERAL OFFICE KERALA
              DIRECTOR GENERAL OF PROSECUTION(AG-10)
              MUHAMMED SWADIQ(K/1860/2022)
              SRI.P.M.SHAMEER-GP; SRI J R PREM NAVAZ


      THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD          ON
05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(CRL.) NO. 1145 OF 2024            :: 2 ::              2024:KER:82604




                                     JUDGMENT

Devan Ramachandran, J.

The petitioner is the mother of a 4 year old child and alleges that the latter

is in the illegal custody of respondents 1 and 2 - who are her own parents,

supported by the third respondent - who is her husband and father of the

detenue.

2. Adverting to the delicate nature of the allegations made, we are of the

view that the identity of the parties should remain anonymised. We, therefore,

direct the Registry to ensure that the names and identities of the parties are

sufficiently masked in all papers.

3. We had initially heard the learned counsel for the petitioner -

Sri.R.Gopan, for admission of this case on 24.10.2024, and we issued notice to

the party respondents. Sri.Prem Navas.J.R. - learned counsel appeared for the

respondents and offered that his client, along with the child, will be present

before us on the 1st of November 2024.

4. The parties were thus present and we interacted with them; the details

of which have been indited by us in our order of the said date, which is as

under:

"The party respondents along with the alleged detenue were before us today.

2. Before we decide further course, we require more details about the petitioner because, she is unable to tell us where she is presently residing; where she is working or studying; and what she WP(CRL.) NO. 1145 OF 2024 :: 3 :: 2024:KER:82604

intends to do in future. This is crucial in the background of the allegations of the party respondents, particularly her parents - namely respondents 1 and 2, that she is presently living with another person, who is married and allegedly having various deleterious tendencies. This is not to mean that we are finding such allegations to be true; but the safety of the young child surely is to be accorded paramount consideration.

3. The petitioner, who appeared in person, said that she will file appropriate pleadings before this Court, disclosing all her details, including place of residence and how she plans to take care of the child, her schooling and such other. She sought a day's time for this purpose.

We, therefore, adjourn this matter to be called on 05.11.2024 at 12.45 PM in our Chambers, on the said day, all the parties shall remain present again with the alleged detenue before us."

5. Today, the parties are again present before us with the child; and it is

luculent that the latter has no bitterness to either of the parties and was seen

going to each other whenever called, without any demur or resistance.

6. However, respondents 1 and 2 - who are the parents of the petitioner,

disclosed to us that the child was with them until the 6th of October 2024; and

that they handed her over to the third respondent - her father on that day,

when they were shown an order from the learned Family Court, Neyyattinkara

in I.A.No.1/24 in O.P.No.860/24.

7. We, therefore, asked Sri.Prem Navas - learned counsel for the party

respondents, as to the details of the aforesaid order and he handed over a copy

of the same across the Bar for our inspection. It is indubitable from the said

order that the learned Family Court, Neyyattinkara has only injuncted the

petitioner herein from forcibly taking the child away from the third respondent. WP(CRL.) NO. 1145 OF 2024 :: 4 :: 2024:KER:82604

We do not propose to say anything further because, we are certain that the

parties are likely to continue litigation and do not, therefore, want to prejudice

them in any manner.

8. That being said, as we have already recorded above, the child has

exhibited no particular preference between the parties. She certainly looks a

bit sad, perhaps because she is being torn between the parties and she has

equal affection for them.

9. But, the real problem is not this. The petitioner is stated to be staying at

Kannur with her friend and we are not sure that we can send the child with her

in such a scenario because, we are not sure of the circumstances and the

situation to which she is now exposed of.

10. The petitioner, who is present in person, sensed our mind and told us

that she does not want the child to go with her today because she is in the

process of settling herself with the help of her friend at Kannur; and that she

will move the learned Family Court appropriately for her custody in due course.

11. We notice that the petitioner has sworn an affidavit dated 5.11.2024,

to such effect, the relevant portion of which is extracted hereunder:

"2. It is respectfully submitted that now I am residing at Kannur in the above said address in connection with my job. At present, I am not able to take my child along with me at my work place. I hope that my position will be changed within three months. Meanwhile I may be given opportunity to contact my daughter through whatsapp call everyday. I will also file a proper application before the Family Court, Neyyattinkara for getting permanent custody of my daughter and my visitorial right. That interim application may be directed to be disposed of as early as possible WP(CRL.) NO. 1145 OF 2024 :: 5 :: 2024:KER:82604

and I may also be permitted to withdraw the above WP(Crl) to approach before the Family Court, Neyyattinkara or concerned Family Court for getting proper relief as per law."

12. We have little doubt that every liberty available to the parties in law,

must be reserved to them, to be invoked in future, as and when required.

In the afore circumstances, we close this Writ Petition, finding that the

child is not under detention, though without entering into the merits of any

other rival contentions, particularly the order of the learned Family Court in

O.P.No.860/24.

Axiomatically, the parties will be at liberty to impel every issue and

invoke all remedies - including against the order now issued by the learned

Family Court - appropriately; for which purpose, all rival rival contentions are

fully left open.

We, however, clarify that we have not dealt with any claim for custody of

the child; and that it will be open to the appropriate Courts to deal with it, as