Kerala High Court
Sam Lukose vs State Police Chief on 13 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:70160
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA,
1946
WP(CRL.) NO. 937 OF 2024
PETITIONER:
SAM LUKOSE, AGED 48 YEARS
S/O LUKOSE, IDAKKUNNIL PUTHENVEEDU,
NARIKKIL., PUNALUR PULALUR,
KOLLAM DISTRICT, PIN - 691322.
BY ADVS.
K.K.SETHUKUMAR
SARITHA G.R.
SREEKRISHNADATH PANDARATHIL E.K.
NISHA MATHEW
R.RAHUL
MEENAKSHY V.S.
PREETHY K.
RESPONDENTS:
1 STATE POLICE CHIEF
KERALA POLICE POLICE HEAD QUARTERS,
VAZHUTHACADU, THIRUVANANTHAPURAM, PIN - 695010
2 THE STATION HOUSE OFFICER, ENATHU
ENATHU POLICE STATION, ENATHU.P.O,
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WP(CRL.) NO. 937 OF 2024
-2-
PATHANAMTHITTA DISTRICT, PIN - 691526.
3 BENNY
AGED 54 YEARS
PALAVILAYIL VEEDU. GANDHINAGAR
KOTTARAKKARA. P.O,
KOLLAM DISTRICT, PIN - 691506.
4 JESSY JOHN, AGED 47 YEARS
W/O BENNY, PALAVILAYIL VEEDU. GANDHINAGAR,
KOTTARAKKARA. P.O, KOLLAM DISTRICT,
PIN - 691506.
SRI.DANIEL MATHEW KOSHY
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 13.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(CRL.) NO. 937 OF 2024
-3-
JUDGMENT
Devan Ramachandran, J.
The petitioner is the father of a three
year old daughter by name Mirza Mariam Sam; and
alleges she is under the illegal custody of
respondents 3 and 4 - who are the sister and
brother-in-law of his now estranged wife. He
alleges that his wife is abroad and that she has
left the child in the custody of respondents 3
and 4, which is illegal; and therefore, that he
has been constrained to approach this Court
through this Writ Petition.
2. When we heard this Writ Petition on
30.08.2024, the submissions of
Sri.K.K.Sethukumar - learned counsel for the
petitioner on the afore lines, gave us the
impression that this Writ Petition may not be
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maintainable; but we thought it better, in the
interest of the child, to direct the learned
Government Pleader to obtain instructions
discreetly.
3. Thereafter, this matter was listed
on 05.09.2024, on which day, the learned
Government Pleader informed us that the mother
of the alleged detenue child is abroad and that
the latter is now being taken care of by
respondents 3 and 4. We, therefore, allowed the
petitioner to take out notice to respondents 3
and 4 by Special Messenger; and on 10.09.2024,
Sri.Daniel Mathews Koshy appeared and offered
that his clients, along with the child, will be
present before this Court today.
4. It is in such circumstances, that
this matter is being considered by us.
5. When this matter was called in
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Court today in the morning, the petitioner,
along with his elder daughter - Merin, was
present; while, respondents 3 and 4 appeared
along with the child in question.
6. We allowed the father to interact
with the child, with the fond hope that the
children can be together; and thereafter, called
this case in our Chambers in the afternoon
session.
7. Even though we interacted with the
parties to the extent that we could, it is clear
that there can be no breakthrough because, the
husband and wife are involved in bitter
matrimonial issues; and we are also told that
the petitioner has moved to the jurisdictional
Family Court, seeking custody of the child in
question.
8. Obviously, therefore, we can move
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forward only if the parties agree to some
arrangement; otherwise, we are only enjoined to
verify whether the child in question is under
the illegal detention of respondents 3 and 4.
9. In an abstract sense, when the
child is in the custody of someone other than
father and mother, a suspicion can arise that
this is something that is not usual. However, in
this case, it is the specific contention of
respondents 3 and 4, that they were entrusted
with the care of the child by her own mother,
who is now abroad temporarily for the purpose of
eking out her livelihood.
10. In fact, the 4th respondent - who
was present before us, explained that her sister
has been forced to work abroad to save their
residential house from distress sale because, it
is secured for a loan availed by their father
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for her marriage. She said that she is taking
care of the child and that the latter is also
comfortable with her, which we must say, we also
found. In fact, after spending some time with
the father, the child started crying and was
consoled only when she was handed back to the 4th
respondent.
Indubitably, we cannot find this Writ
Petition to be worthy of merit because, the
child cannot be held to be in illegal custody,
though she is now with respondents 3 and 4. This
is because, as we have said above, such custody
is on account of the specific permission given
by the mother, with whom the child was, until
she went abroad in search of her employment, or
to work.
In the afore circumstances, leaving the
parties full liberty to invoke all other
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remedies before the jurisdictional Family Court,
we close this Writ Petition without any further
orders.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
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WP(CRL.) NO. 937 OF 2024
APPENDIX OF WP(CRL.) 937/2024
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED
23/08/2024 GIVEN TO THE SHO PUNALUR
DATED 23/08/2024
EXHIBIT P2 TRUE COPY OF THE COMPLAINT DATED
24/08/2024 GIVEN TO THE 2ND RESPONDENT
EXHIBIT P3 TRUE COPY OF THE RECEIPT NO.15299016-
2024-5-00241 DATED 25/08/2024
