Kerala High Court
Sreekumar vs State Of Kerala on 2 May, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
WP(Crl)No.517 of 2025
1
2025:KER:33514
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 2ND DAY OF MAY 2025 / 12TH VAISAKHA, 1947
WP(CRL.) NO. 517 OF 2025
PETITIONER/S:
SREEKUMAR
AGED 39 YEARS
S/O RAJAN NAIR, KOIYANKODU KUNNUMMEL, POVATTU PARAMPU.,
PERUVAYAL.P.O, PERUVAYAL VILLAGE, KOZHIKODU DISTRICT,
PIN - 673008
BY ADVS.
K.K.SETHUKUMAR
SARITHA G.R.
SREEKRISHNADATH PANDARATHIL E.K.
NISHA MATHEW
R.RAHUL
PREETHY K.
RESPONDENT/S:
1 STATE OF KERALA
DISTRICT POLICE CHIEF OFFICE, PATHANAMTHITTA.P.O,
PATHANAMTHITTA, PIN - 689645
2 STATE OF KERALA
THIRUVALLA POLICE STATION, THIRUVALLA.P.O,
PATHANAMTHITTA DISTRICT, PIN - 689101
3 SABITHA MURALI
AGED 59 YEARS
W/O MURALEEDHARAN, KUNNATHETHU VEEDU, VALLAMLULAM.P.O,
VALLAMKULAM, THIRUVALLA.. PATHANAMTHITTA DISTRICT,
WP(Crl)No.517 of 2025
2
2025:KER:33514
PIN - 689541
4 NADU MURALI
AGED 39 YEARS
S/O MURALEEDHARAN, KUNNATHETHU VEEDU, VALLAMLULAM.P.O,
VALLAMKULAM, THIRUVALLA.. PATHANAMTHITTA DISTRICT,
PIN - 689541
5 SAJAN
AGED 48 YEARS
KUNNATHETHU VEEDU, VALLAMLULAM.P.O, VALLAMKULAM,
THIRUVALLA.. PATHANAMTHITTA DISTRICT, PIN - 689541
6 SAJITHA ANIL
AGED 44 YEARS
W/O ANIL, KUNNATHETHU VEEDU, VALLAMLULAM.P.O,
VALLAMKULAM, THIRUVALLA.. PATHANAMTHITTA DISTRICT,
PIN - 689541
7 MANJUSHA
AGED 43 YEARS
W/O SAJAN, KUNNATHETHU VEEDU, VALLAMLULAM.P.O,
VALLAMKULAM, THIRUVALLA.. PATHANAMTHITTA DISTRICT,
PIN - 689541
8 ANITHA
AGED 43 YEARS
THATTAYIL VEEDU, THATTAYIL.P.O, THATTAYIL, PANDALAM
TEKKEKARA VILLAGE.. PATHANAMTHITTA DISTRICT,
PIN - 691525
BY ADVS.
T.P.PRADEEP
P.K.SATHEES KUMAR(K/607/2012)
R.K.PRASANTH(K/000475/2017)
MINIKUMARY M.V.(K/118/2019)
JIJO JOSEPH(K/000402/2022)
OTHER PRESENT:
B.S.SYAMANTHAK-GP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
02.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl)No.517 of 2025
3
2025:KER:33514
BECHU KURIAN THOMAS & P.KRISHNA KUMAR, JJ.
-----------------------------------------
W.P.(Crl.)No.517 of 2025
----------------------------------------
Dated this the 2nd day of May, 2025
JUDGMENT
P. Krishna Kumar, J.
The petitioner is a Non-Resident Indian working in
Saudi Arabia. He has been living in Saudi Arabia with his
wife Lekshmi, a nurse working in a Hospital there, and
their minor daughter Devika, aged 9, who is studying in
the 5th standard at the International Indian School, Al-
Jubail, Saudi Arabia.
2. Petitioner's wife Lekshmi passed away on
12.04.2025, due to a sudden cardiac arrest. On
14.04.2025, petitioner sent his daughter, Devika, to
Thiruvalla - her maternal residence, along with her
maternal Uncle, who is also working at Jubail, Saudi
Arabia, assuming that the formalities for bringing the
mortal remains of Lekshmi to her native place might take
some time.
2025:KER:33514
3. On 16.04.2025, petitioner brought the body of
Lekshmi to Thiruvalla, and the funeral was held on
17.04.2025 at her residence at Vallamkulam, Thiruvalla,
in the presence of the petitioner, his parents, and the
party respondents, who are the mother and relatives of
Lekshmi, respectively.
4. The unfortunate turn of events started after the
cremation. According to the petitioner, after the
funeral, respondents 3 to 8 unlawfully detained the minor
girl Devika and refused to allow him to take her with
him. Hence Ext.P5 complaint was filed before the second
respondent - SHO of Thiruvalla Police Station, to rescue
the minor from illegal detention. Petitioner also filed
Ext.P6 complaint on 19.04.2025 before the District Police
Chief, Pathanamthitta, as evidenced by Ext.P7 receipt of
acknowledgment, allegedly due to the inaction of the
second respondent. On 20.04.2025, petitioner approached
this Court seeking a writ of Habeas Corpus to produce the
minor child before this Court.
5. Today, when the case was called at 10 a.m. in the
2025:KER:33514
chambers, the child was produced by the party respondents
before us. The petitioner, the respondents 3 and 4, along
with the third respondent's sister, the learned counsel
appearing for both sides and the learned Government
Pleader were all present before us.
6. The respondents 3 to 8 filed a counter affidavit
contending that, from the initial days of the marriage
between petitioner and Lekshmi, which was solemnized on
27.03.2013, Lekshmi had been subjected to physical and
mental cruelty by the petitioner after consuming alcohol.
During 2017 itself, Lekshmi left her matrimonial home
with the child due to the physical and mental torture,
and she stayed with the third respondent, and the child
was admitted to LKG and UKG at a School in Thiruvalla.
Thereafter, Lekshmi initiated proceedings before the
Family Court, Thiruvalla, in the year 2019, against the
petitioner for divorce, but later, in 2021, considering
the better interests of the child, the dispute was
settled and Lekshmi and the child went to Saudi Arabia
along with the petitioner. The party respondents further
2025:KER:33514
alleged that the petitioner continued his habit of
consuming alcohol as well as torturing his wife, and even
the child was allegedly not spared.
7. The party respondents further contended that on
18.04.2025, petitioner attempted to take the child from
the house of the third respondent after consuming
alcohol, but since the child was reluctant to go with him
they requested him to stay till Sanchayanam (post-funeral
rituals on the 5th day of the death) is over. Howver,
petitioner tried to take the child forcefully, and then
the child became frightened and she cried loudly. It is
further contended that the child suffered mental trauma
after the said incident and she kept herself locked in
the room and then the third respondent discussed the
matter with a neighbour who is the District Child
Protection Officer, who suggested to avail the support of
a Psychologist attached to the Child Welfare Committee
and accordingly on 19.04.2025 and 21.04.2025, the child
was given counseling by the Psychologist of Child Welfare
Committee. Pursuant to the report of the Psychologist,
2025:KER:33514
the Station House Officer of Thiruvalla Police Station
allegedly registered FIR No.1005/2025 against the
petitioner for offences punishable under Section 354A(1)
(i) of the Indian Penal Code, Section 75 of the Juvenile
Justice (Care and Protection of Children) Act and
Sections 7, 8, 9 and 10 of the the Protection of Children
from Sexual Offences Act, 2012 (the POCSO Act). According
to the party respondents, in the above factual
circumstances, the writ petition is liable to be
dismissed.
8. We have heard the learned counsel appearing for
the petitioner, the learned counsel for respondents 3 to
8, and the learned Government Pleader.
9. Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 declares that the natural guardian
of a Hindu minor, whether it is a boy or an unmarried
girl, is the father, and after him, the mother; but the
custody of a minor below five years shall ordinarily be
with its mother. The right of the petitioner as the sole
surviving natural guardian is beyond any dispute, and the
2025:KER:33514
party respondents also fairly conceded it. Indeed,
respondents 3 to 8, who are the maternal grandmother and
her relatives, have no preferential right to the custody
of the child over the father, and their tentative custody
over the child was not authorised by law or any authority
under the law.
10. In Tejaswini Gaud and Others v. Shekhar Jagdish
Prasad Tewari and Others [(2019) 7 SCC 42], the Supreme
Court has considered the question of entertaining a writ
of Habeas Corpus when the father of the minor child has
an efficacious alternative remedy available under the
Hindu Minority and Guardianship Act against the in-laws
of the mother. After elaborately considering the various
precedents in respect of the matter, the Apex Court found
that the detention of a minor by a person who is not
entitled to his legal custody is to be treated as illegal
detention for the purpose of issuing a writ of Habeas
Corpus for restoration of the custody of the minor from a
person who according to the personal law, is not his
legal or natural guardian. The Court held as follows:
2025:KER:33514
"........Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in
the circumstances of the particular case, ordinary
remedy provided by the law is either not available or
is ineffective; otherwise a writ will not be issued.
In child custody matters, the power of the High Court
in granting the writ is qualified only in cases where
the detention of a minor by a person who is not
entitled to his legal custody. In view of the
pronouncement on the issue in question by the Supreme
Court and the High Courts, in our view, in child
custody matters, the writ of habeas corpus is
maintainable where it is proved that the detention of
a minor child by a parent or others was illegal and
without any authority of law.
...............
There are significant differences between the
enquiry under the Guardians and Wards Act and the
exercise of powers by a writ court which is summary
in nature. What is important is the welfare of the
child. In the writ court, rights are determined only
on the basis of affidavits. Where the court is of the
view that a detailed enquiry is required, the court
may decline to exercise the extraordinary
jurisdiction and direct the parties to approach the
civil court. It is only in exceptional cases, the
rights of the parties to the custody of the minor
will be determined in exercise of extraordinary
jurisdiction on a petition for habeas corpus."
11. In view of the law settled by the
2025:KER:33514
Honourable Apex Court, there is no difficulty in holding
that the petitioner is entitled to get the remedy sought
for, unless the court feels that restoring the custody of
the minor to the father will adversely affect the welfare
of the minor. According to the party respondents, the
petitioner's habit of consuming alcohol and the errant
behaviour following it and the incidents leading to the
registration of FIR on the basis of the statement of the
child for offences including the one under the provisions
of POCSO Act, demonstrate that the custody of the girl
should not be entrusted to the petitioner.
12. Having considered the entire matter and
particularly in the light of our close and personal
interactions with the child, the petitioner, and the
party respondents several times today, we have no
hesitation in holding that the above contentions of the
party respondents are devoid of any merit.
13. Annexure R3(a)statement was given by the child
in the presence of the third respondent, the grandmother
of the child. The minor states in Annexure R3(a) that her
2025:KER:33514
father used to beat her and take her with him when he
went out for drinks. According to Annexure R3(a)
statement, her father used to touch her buttocks after
consuming alcohol and had also inserted his hands into
her shorts and rubbed after consuming alcohol. She
further stated that her father used to do this while she
was studying in the second standard (the minor is now in
the 5th standard).
14. Our interaction with the child was after perusing
Annexure R3(a) statement given by her to the Sub
Inspector of Police. We spoke to her extensively, after
giving her sufficient time to get comfortable with us,
and also after creating a friendly atmosphere. We also
spoke to her in the absence of the petitioner as well as
the other respondents. The child seemed to be intelligent
and conscious of the purpose of the inquiry. When we
repeatedly asked her about the difficulties she faces for
not accompanying her father abroad, her reply was only
that she finds it comfortable to be with her cousins and
grandmother at Thiruvalla. She said, if she were to be
2025:KER:33514
sent back to Saudi Arabia, she would get only the company
of her father. When we asked her whether the petitioner
used to beat her, she said he beats her when she keeps
the room untidy. She further told us that her mother used
to beat her more frequently. When we asked her pointedly
about any unusual behaviour from her father or about
other difficulties faced by her at his instance when they
were together in Saudi Arabia, she said she had no issues
with him other than the fact that he used to scold and
beat her for not keeping the house clean. She further
stated that even when her mother was alive, it was the
father who would bathe her and get her ready in the
mornings, as the mother regularly had to attend to her
duties during that time.
15. From her repeated assertions to us that her only
interest to continue in Thiruvalla rather than in Saudi
Arabia is that she likes the company of her cousins and
the grandmother, we are satisfied that her welfare and
overall interest will not be adversely affected if her
custody is restored to the father, despite the
2025:KER:33514
allegations made against him in Annexure R3(a) FIR.
16. Certain other circumstances also compel us to
hold in favour of the petitioner, ignoring the contents
of the FIR. We noticed that, till the death of Lekshmi,
and till the child left Saudi Arabia, none had any
complaint against the petitioner vis-a-vis the child. In
fact, the petitioner had, on his own volition, sent the
child with her maternal uncle to Thiruvalla before he
brought his wife's body from Saudi Arabia. After the
funeral on 17.04.2025, the child was not permitted to go
with the father. On 18.04.2025 also, the party
respondents did not let the child go with the petitioner,
leading to complaints. This writ petition was filed on
20.04.2025 and came up for consideration on 22.04.2025,
on which date, this Court issued notice to the party
respondents and listed the case to 25.04.2025. On that
posting date, when this Court wanted the child to be
produced, the learned counsel appearing for respondents 3
to 8 submitted that the post-funeral function of the
deceased mother is scheduled to be conducted and
2025:KER:33514
requested for a longer date. Hence this Court directed
the child to be produced on 02.05.2025 instead of 29-05-
2025. It is evident from the Counter affidavit that, in
the meantime, the grandmother took the child to a lady
District Child Protection Officer, who is a friend of the
grandmother, and who seemingly arranged a counseling by a
Psychologist attached to the Child Welfare Committee. All
these things happened after the filing of Ext.P5
complaint before the Police by the petitioner and even
the writ petition. Significantly, the FIR was registered
only on 26.04.2025, i.e. the next day of the date of
appearance of the party respondent before this court and
that too after the child was directed to be produced by
this Court.
17. The above sequence of events and the nature of
allegations create doubts in our minds. However, the law
will certainly take its course in respect of the
allegations made therein. Nevertheless, we are of the
considered view that none of the allegations levelled
against the petitioner in the FIR are sufficient to deter
2025:KER:33514
this Court from denying custody of the child to the
petitioner. We are also of the considered view that it is
in the best interest of the minor that her father has her
custody and she continues her studies in Saudi Arabia.
The above conclusion is arrived at after our close and
continuous interactions with the child in a conducive
atmosphere.
18. We are also not impressed by the contentions of
the learned counsel appearing for the party respondents
that the child was never detained by the in-laws, and
instead, it was the child who is reluctant to go with the
petitioner, thus the essential element for invoking the
writ habeas corpus is absent in this case. As mentioned
earlier, the child was sent to Thiruvalla from Saudi
Arabia along with the maternal uncle (respondent No.4) by
the father himself. The child was with the petitioner in
Saudi Arabia until 14.04.2025, and she had been studying
there. It was only on 18.04.2025, the child is said to
have resisted going with the petitioner. According to the
petitioner, the respondents 3 to 8 obstructed the
2025:KER:33514
petitioner from taking the child into his custody. All
these attending circumstances make it unquestionably
clear that the child is detained by the party respondents
without the authority of law, and the said fact is
sufficient to invoke our jurisdiction to issue a writ of
Habeas Corpus to restore her custody to her father, the
petitioner. We find that such a step is essential for her
overall welfare and a better future.
19. In the result, we deem it appropriate to
issue the following directions:
(i). The minor child Devika, aged 9 years shall be
forthwith handed over to the petitioner, who shall be
entitled to take the child to Saudi Arabia and continue
her studies at the International Indian School, Al-
Jubail, Saudi Arabia.
(ii). All documents relating to the minor child,
including her passport and residential permit, which are
conceded as in the custody of respondents 3 and 4, shall
be handed over to the District Police Chief,
Pathanamthitta, on or before 1.00 p.m. on 05.05.2025. The
2025:KER:33514
District Police Chief, Pathanamthitta shall, immediately
thereafter, hand over those documents to the petitioner.
(iii). The petitioner shall ensure that the child
gets access to her grandmother, the third respondent,
once in two weeks, preferably on a Saturday evening
through video-conference/WhatsApp video call or similar
facility as are available. The fourth respondent, who is
working in Jabail, Saudi Arabia, will have visitation
rights to the child once a month at the residence of the
petitioner in his presence and the petitioner shall
facilitate the arrangement without any hesitation.
(iv). We clarify that if in case the petitioner is
wanted in Kerala in connection with Annexure R3(a) crime
(FIR No.1005/2025 of Thiruvalla Police Station), he shall
appear before the appropriate officer, provided he is
given due notice thereof under section 41A Cr.PC or
section 35 of the BNSS as the case maybe.
(v). Since we have exercised our parens patriae
jurisdiction to ensure the well-being of the child, the
Registry shall post this case on 07/07/2025 and the
2025:KER:33514
petitioner shall appear before the Court atleast through
the online mode while the respondents shall also be at
liberty to appear/be represented.
The writ petition is allowed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
2025:KER:33514
APPENDIX OF WP(CRL.) 517/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY
THE MINISTRY OF INTERIOR, JUBAIL CIVIL
AFFAIRS
Exhibit P2 TRUE COPY OF THE DEATH REPORT ISSUED BY THE
ALMAN HOSPITAL, JUBAIL
Exhibit P3 TRUE COPY OF THE STUDENT IDENTITY CARD
Exhibit P4 TRUE COPY OF THE RESIDENT IDENTITY CARD
Exhibit P5 TRUE COPY OF THE RECEIPT ISSUED AGAINST THE
RECEIPT OF COMPLAINT GIVEN TO THE 2ND
RESPONDENT
Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 19/04/2025
GIVEN TO THE 1ST RESPONDENT
Exhibit P7 TRUE COPY OF THE RECEIPT NO - 152990401-2025-
5-00046 DATED 19/04/2025 ISSUED FROM THE
OFFICE OF THE 1ST RESPONDENT
RESPONDENT EXHIBITS
Exhibit R3(a) TRUE COPY OF THE FIR NO. 1005/2025 OF
THIRUVALLA POLICE STATION ALONG WITH THE
STATEMENT OF THE VICTIM
