Kerala High Court
Divya P.B vs State Of Kerala on 10 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
W.P(Crl) No.997 of 2024 1
2024:KER:75302
0IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
WP(CRL.) NO.997 OF 2024
PETITIONER:
DIVYA P.B., AGED 39 YEARS, D/O BALAMANI,
MANAKKATUVILAKAM, KAIRALI NAGAR, KAZHAKUTTAM P.O
KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM TALUK,
THIRUVANANTHAPURAM, PIN - 695585
BY ADVS.
S.K.ADHITHYAN
SHAHINA NOUSHAD
REUBEN CHARLY
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER,
ERNAKULAM CENTRAL POLICE STATION,
THIRUVANANTHAPURAM, PIN - 695033
3 ARAFATH ANSARI, AGED 39 YEARS, S/O SHAFEELA
ANSARI, 2F, YASORAM ABODE, DRAUPADI LANE, ST JUDE
CHURCH, THAMMANAM PULLEPADI ROAD, THAMMANAM P.O
ERNAKULAM, PIN - 682032
W.P(Crl) No.997 of 2024 2
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4 SHAFEELA ANSARI
2F, W/O ANSARI YASORAM ABODE, DRAUPADI LANE, ST
JUDE CHURCH, THAMMANAM PULLEPADI ROAD, THAMMANAM
P.O ERNAKULAM, PIN - 682032
BY ADVS.
A.PARVATHI MENON
BIJU MEENATTOOR(K/620/1992)
PAUL VARGHESE (PALLATH)(K/000171/2017)
KIRAN NARAYANAN(K/000131/2018)
RAHUL RAJ P.(K/547/2020)
MUHAMMED BILAL.V.A(K/1033/2023)
MEERA R. MENON(K/002575/2023)
BASILA BEEGAM(K/2283/2022)
DEVIKA S. PRASAD(K/000975/2024)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 10.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(Crl) No.997 of 2024 3
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JUDGMENT
Devan Ramachandran, J.
The petitioner alleges that her two year old child,
Aryan Ali Arafat, is in the illegal custody of the 3rd respondent
- his own father.
2. Sri.S.K.Adhithyan - learned Counsel for the
petitioner, explained, at the time when this matter was
considered for the first time on 09.09.2024, that there is a
custody battle going on for the child between the parents and
that certain interim orders had been issued by the learned
Family Court, Ernakulam. The learned Counsel alleged that,
even though the learned Family Court had allowed the interim
custody of the child to be with the mother until the Original
Petition was finally disposed of, the 3rd respondent - father
took him away forcibly from the Court; thus constraining his
client to approach this Court, by filing this Writ Petition.
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3. We, thereupon, issued notice to the party
respondents and the 3rd respondent appeared before us,
along with the child, on 13.09.2024.
4. We interacted with the parties on the afore date
and indited our opinion, as also our directions of that day, as
under:
"Both sides are present before us today along
with the child. As an interim measure, there is a consent
between the parties as under:
(a) The child will be with the petitioner -
mother from now till 23.09.2024.
(b) Both sides agreed to appear before us
again on 23.09.2024 at 10.15 a.m to attempt a
settlement of their dispute through Family Counselling
Centre of this Court.
(c) The petitioner- mother expressly agrees
that father can contact the child through
whatsapp/Video call/voice calls on her phone
(No.9947409026) any time, subject to the convenience
of the child, particularly, between 7 p.m and 8 p.m on
everyday.
(d) The wife also agrees that the respondent
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can travel to Trivandrum and meet the child at her
residence without any impediment again, subject to the
convenience of both sides."
5. Thereafter, on 23.09.2024, both sides wanted an
opportunity to settle their disputes and to attempt a
settlement if possible, under the aegis of the Family
Counselling Centre of this Court. We allowed this through our
order of the said date, allowing the earlier arrangement qua
the child to continue.
6. The Psychologist attached to the Family
Counselling Centre of this Court, subsequently, made
available to us a report dated 25.09.2024, recommending
further therapy sessions for the parties on 30.09.2024 and
07.10.2024.
7. It is in such a manner that this matter has been
listed today.
8. The learned Counsel on both sides confirm that
their clients had attended the therapy sessions and that one
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more session is scheduled on 14.10.2024. They also
unequivocally agreed that our order extracted above can
continue to hold force until further orders are issued by the
learned Family Court.
9. It is thus obvious that, as matters now stand, the
child has been restored to the mother and final orders with
respect to his custody - be that interim or permanent - will
have to be issued by the learned Family Court, Ernakulam, in
the pending Original Petition. We had permitted the parties to
obtain therapy under the aegis of the Family Counselling
Centre, Ernakulam, only to help them; and hence, if they are
interested, they can continue to do so, as long as it is
practically possible. For this, we do not deem it necessary to
keep this Writ Petition pending.
In the afore circumstances we order this Writ
Petition, confirming our order dated 13.09.2024, as regards
the custody of the child, however, leaving full liberty to the
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parties to invoke every liberty and remedy that they may
have in law, before the learned Family Court; and in such
event, the said Court will decide the same, untramelled by
our observations in this judgment.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
sp/10/10/2024
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APPENDIX OF WP(CRL.) 997/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE WRITTEN COMPLAINT
DATED 06.09.2024 FILED IN THE CENTRAL
POLICE STATION, ERNAKULAM
Exhibit P2 TRUE COPY OF THE RECEIPT OF THE
COMPLAINT ISSUED BY THE CENTRAL POLICE
STATION, ERNAKULAM DATED 07.09.2024
Exhibit P3 TRUE COPY OF THE PHOTOS OF THE
PETITIONER AND HER CHILD AT THE CRECHE
IN THE PREMISES OF FAMILY COURT,
ERNAKULAM
