Michelle Ashraf vs State Of Kerala
2026 Latest Caselaw 1483 Ker

Kerala High Court

Michelle Ashraf vs State Of Kerala on 11 February, 2026

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                2026:KER:12482
WP(CRL.)NO.136 OF 2026            1


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

                              &

         THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

 WEDNESDAY, THE 11TH DAY OF FEBRUARY 2026 / 22ND MAGHA, 1947

                   WP(CRL.) NO. 136 OF 2026

PETITIONERS:

    1     MICHELLE ASHRAF
          AGED 39 YEARS
          D/O ASHRAF HASSAN, NALAKATH KANDATHIL, MASTER
          COACHING BOARD ROAD, NEAR JLN STADIUM, KALOOR,
          ERNAKULAM, KERALA, NOW RESIDING AT 100
          BELMONT ROAD, ERITH BEXLEY, POST CODE DA8 1LD,
          GREATER LONDON, UK, PIN - 682017.

    2     UMAIVAN ASHRAF
          AGED 66 YEARS
          W/O ASHRAF, NALAKATH KANDATHIL, MASTER COACHING
          BOARD ROAD, NEAR JLN STADIUM, KALOOR, ERNAKULAM,
          KERALA, PIN - 682017.


          BY ADVS.
          SRI.K.I.ABDUL RASHEED
          SMT.DEEPA SASIDHARAN



RESPONDENTS:

    1     STATE OF KERALA
          REP BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS,
          GOVERNMENT SECRETARIAT THIRUVANATHAPURAM, PIN -
          695001.

    2     THE DEPUTY SUPERINTENDENT OF POLICE
          OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, NEAR
                                                      2026:KER:12482
WP(CRL.)NO.136 OF 2026             2


            TALUK HOSPITAL THRISSUR ROAD, KUNNAMKULAM,
            PIN - 680503.

    3       THE STATION HOUSE OFFICER
            MANNUTHY POLICE STATION, THRISSUR, PIN - 680651.

    4       MUHAMMED IBRAHIM
            S/O KUNHABDULLA, ERAMANGALATH, 2/441/2, OPP
            VETERINARY HOSPITAL, PARAVATTANI, EAST FORT P.O.,
            THRISSUR, PIN - 680005.


            BY ADV SRI.N.L.BITTO


OTHER PRESENT:

            SRI B S SYAMANTHAK-GOVERNMENT PLEADER


     THIS    WRIT   PETITION   (CRIMINAL)   HAVING   COME   UP   FOR
ADMISSION ON 11.02.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                                           2026:KER:12482
WP(CRL.)NO.136 OF 2026               3



                              JUDGMENT

The 1st petitioner, along with the mother -

the 2nd petitioner, seek the issuance of a writ of

Habeas Corpus, to command the 4th respondent, her

former husband, to produce her two children -

now aged 11 and 6 years respectively, before this

Court and set them at liberty; asserting that he

has retained them illegally and in contravention

of binding orders issued by a jurisdictional

family court in the United Kingdom, where they

were all living.

2. Sri.Abdul Rasheed K.I.- learned counsel

for the petitioners, submitted that the entire

family was living in the United Kingdom; when

abruptly, on 11.01.2026, the 4th respondent took

the children and came back to India, without

informing his client. He explained that his

client was living in the United Kingdom, along

with the the 4th respondent; and that the later 2026:KER:12482

had been ordered to leave United Kingdom, since

his Visa was expiring on 11.01.2026. He submitted

that, however, the Family Court in the United

Kingdom, had, by then, issued an order dated

08.01.2026 - interestingly, in an application

filed by the 4th respondent himself - that he and

the 1st petitioner shall apply for leave to remain

in the United Kingdom with respect to both their

children on 08.01.2026 or immediately thereafter,

adverting to the factum of his Visa expiring on

11.01.2026. He imputed that the 4th respondent,

however, in blatant disregard to such orders and

exhibiting callous attitude towards the 1st

petitioner removed himself and the children from

United Kingdom without informing her; thus,

leaving her without any other option, but to

travel to India and to file this original

petition. He contended that the 1st petitioner

still has permission to continue in United 2026:KER:12482

Kingdom; and therefore, that the actions of the

4th respondent, in having removed the children

from the jurisdiction of the Family Court at

Bromley - where the matter filed by him is next

listed for hearing on 10.08.2026 - is illegal,

unlawful; thus enabling her to obtain their

custody. He concluded saying that, the children

have been living and studying in the United

Kingdom until 11.01.2026, and that their abrupt

removal to India has caused them irreparable scar

and trauma.

3. In response, Sri.N.L.Bitto - learned

counsel for the 4th respondent, submitted that his

client has done nothing wrong or illegal, even

going by the laws of the United Kingdom, because,

as per Ext.R4(a) order dated 12.11.2025, he had

no other option but to leave the United Kingdom

along with the children, failing which, all of

them would have been taken into custody and 2026:KER:12482

proceeded against him. He relied upon Ext.R4(b)

order dated 23.12.2025 in substantiation, showing

that the direction therein is specifically that

his client and the children will not be allowed

to remain in the United Kingdom after 11.01.2026.

4. Interestingly, Sri.N.L.Bitto thereafter

conceded, to pointed questions from this Court,

that Ext.R4(d) reserved liberty to the mother -

namely the 1st petitioner herein - to apply, if

she was intending for the children to come under

her Visa; but explained that this would have been

of no consequence because, the said order itself

says that such an application was unlikely to be

successful, since the children do not have a

right to remain in the United Kingdom. He further

conceded, again in answer to a question from us,

that Ext.R4(e) order was, thereafter, issued on

08.01.2026, by the Family Court at Bromley,

directing the couple to make an application for 2026:KER:12482

leave to remain in the United Kingdom in respect

of both children; but that his client did not do

so, because he was advised that such an

application would not be allowed; and that the

leave for the children to remain in the United

Kingdom will not be granted beyond 11.01.2026. He

added that, it is in such apprehension, that his

client took the decision to return to India on

11.01.2026 itself; and hence predicated that he

has committed no wrong.

5. Before we move forward in our

consideration of the rival submissions as

recorded above, we must record that we had tried

to find a solution between the 1st petitioner and

the 4th respondent, adverting to the trauma being

forced upon the children on account of their

strife. This is evident from the interim order of

this Court dated 29.01.2026 - when the parties

were before us; and the observations therein are 2026:KER:12482

required to be read in full, for which it, is

extracted as under.

"The parties were before us along with the children.

2. We interacted with the children and must say that we were heartbroken to see the kind of suffering that they are going through. Both of them were crying silently, obviously bearing the heavy burden of the strife of their parents. We saw both the parents persuading the children to be with them - the mother in the U.K. and their father in Kerala.

3. The children were completely confused, but exhibited equal affection for both parents. It is a rather unfortunate situation that parents

- whether they are divorced as husband and wife, or otherwise - cannot get a grip on the life of their children; and - albeit inadvertently - push them into the throes of angst since, either way, they will have to be separated from one of the parents.

4. The father maintained before us that the children cannot return to the U.K. with the mother because they will not obtain visas. The mother, however, contented to the contrary, saying that she will be able to manage it.

5. The younger of the children - the girl, did not tell us any particular preference; but the 2026:KER:12482

elder boy told us that he would prefer to be in India because he had some bad experience in school in the U.K. Of course, these impressions are that of a very young mind and ought not be the only deciding factor.

6. The care and affection of a mother is indispensable to every child; while the security and the support of the father is as important.

7. In this case, we will have to find a balance because, the parents are divorced and can never come together again. We cannot fructify that hope of the children.

8. We, therefore, deem it appropriate that we allow the mother to inform us how she plans to take the children with her and the steps that are required for that purpose, before we take a final decision on how their time will have to be divided.

9. No doubt, as matters now stand, the children will have to be between parents who are countries apart, as we have said above. This appears to be inevitable, unless one of them decide to shift to the place of the other.

10. Until the next posting date, the children will continue with the mother. However, we direct the parties to be present before us on the next posting date, along with the 2026:KER:12482

children."

6. The parties, with the children, again

appeared before us on 03.02.2026 and, thereafter,

on 09.02.2026; and we were under the impression

that they would be able to find a solution, so as

to spare the children of any further deleterious

impact. However, the submissions today made

before us by the learned counsel for parties,

limpidly indicate that no such is possible.

7. As we observed in the afore extracted

order, in fact, the impact of parents' fight on

the children is unmistakable. The elder boy is no

longer smiling, is always brooding with tears

rolling down his cheeks; and when we asked him,

he requested us to take an apposite decision and

left to us to choose the parent with whom he

should be living with. The younger girl, who is

very young, was crying uncontrollably, but

silently with tears flowing from her eyes making

us feel aghast.

2026:KER:12482

8. That, therefore, leaves us without any

other option, but hear this matter on merits and

take a final decision.

9. Most of the facts involved in this case

are without context.

10. That the parents were living with the

children in the United Kingdom till 11.01.2026,

is admitted. That the 4th respondent came to

India with the children on 11.01.2026, is also

expressly admitted.

11. The only controversy is whether the 4 th

respondent acted as per law; and if not, whether

the children can be found to be illegally

detained by him.

12. No doubt, as per Ext.R4(a) dated

12.11.2025, the 4th respondent was intimated that

his Visa to remain in the United Kingdom would

expire on 11.01.2026; and then through Ext.R4(b)

dated 23.12.2025, he was also told that, unless 2026:KER:12482

the permits were renewed or other arrangements

made, his continuation in the United Kingdom

would be illegal. However, Ext.R4(b) further

mentions that the mother - namely the 1st

petitioner herein - could have applied for the

children to be brought under her Visa; though

with the caveat that, it may be unlikely to be

successful since the children did not have a

right to remain in the United Kingdom. This does

not mean that the 1st petitioner - mother, had no

right to apply at all; but solely, that her

application may or may not have been successful,

depending upon the legal processes as are

applicable.

13. At this juncture, it is crucially

relevant to note that the first "child custody

order", under the Children Act, 1989, of the

United Kingdom, was obtained by the 4th

respondent, as evident from Ext.P1 order dated 2026:KER:12482

29.07.2024. The said order took note of the fact

that the parents had divorced each other on a

"no-fault basis"; and thus provided for the

division of time of the children between them. It

is subsequent to this order, that the 4th

respondent was notified through Ext.R4(a) by the

Authorities concerned in the United Kingdom, that

his entry clearance as a skilled worker has been

cancelled and that it will end on 11.01.2026. He

was also notified that his children, who were

taken as part of his family sponsored by him,

would also be affected by this cancellation and

that they would have to return to India as a

unit.

14. It is the afore statement in Ext.R4(a),

that is now been taken advantage of by the 4 th

respondent; and he bolsters it through Ext.R4(b,

saying that he and his children had no other

option but to return to India on or before 2026:KER:12482

11.01.2026.

15. However, there are certain very vital

aspects involved in this case, namely, that even

as per Ext.R4(b), the 1st petitioner - mother had

the right to apply for the children to come under

her Visa; though she was told, as we have

recorded earlier, that such an application may

not be successful because the children did not

have the right to remain in the United Kingdom.

16 If the matter had ended there, perhaps,

this Court would not have found reason to

intervene; but it was not so.

17. The 4th respondent himself seems to have

then approached the Family Court at Bromley,

United Kingdom, to invite an order on 08.01.2026,

a copy, interestingly, has been produced by

himself as Ext.R4(e); whereby, the parents

(meaning the 1st petitioner and the 4th

respondent) were directed to make an application 2026:KER:12482

for leave to remain in the United Kingdom in

respect of both children, clearly mentioning that

their current leave to remain expires on

11.01.2026. The said order then specified the

time lines for the matter to be taken forward,

fixing 05.02.2026 to be the next relevant date;

and thereafter, on 30.07.2026, directing the

parties to specify with whom the children will

live, where the children will live, how they

should be able to see both parents and such

other. The hearing of the matter has been,

thereafter, fixed to be on 10.08.2026 at 10.00

a.m.

18. Pertinently, Ext.R4(e) further records

that the children are in the mother's care and

that she wishes this to continue, and for her and

the children to remain in the United Kingdom. The

order, no doubt, also notifies the 1st petitioner

that, for obtaining such a leave, the children 2026:KER:12482

would have had to have lived in the United

Kingdom for at least seven years.

19. It is thus ineluctable that proceedings

between the parents are still going on in the

United Kingdom; and that the matter, as said

above, is listed in the Family Court at Bromley

on 10.08.2026.

20. It is in blatant disregard to Ext.R4(e)

order, that the 4th respondent decided to leave

the United Kingdom with the children; and his

learned counsel unequivocally admits that he

refused to make an application, as he was

directed in the said order. The explanation

offered by him is that the 4th respondent believes

that such an application would have been

worthless - we do not know how he says this and

on what basis he maintains so.

21. When it is apodictic that it is the 4th

respondent himself who moved the Family Court at 2026:KER:12482

Bromley and invited Ext.R4(e) order - thus, being

fully aware of his obligations under it to make

the application for leave to remain in the United

Kingdom for his children and thereafter to appear

before the said court on 10.08.2026 - he acted in

a malicious manner in, thereafter, exiting the

United Kingdom and coming to India on 11.01.2026

itself with the children, and that too without

the knowledge of the 1st petitioner.

22. This is the unkindest cut of all,

particularly when the children are so young and

they seem attached to both the parents equally.

23. It is merely because the Visa of the 4th

respondent was expiring on 11.01.2026 and since

the children were attached to him as his

dependents, that he chose to travel with them to

India, defying all the orders issued by the

Family Court in the United Kingdom. The reasons

stated by him is equally baffling that, he could 2026:KER:12482

not remain in the United Kingdom after 11.01.2026

because his Visa would stand cancelled; but,

without being able to tell us how we thought that

the children would then become illegal residents,

in spite of Ext.R4(e) order of the Family Court

at Bromley, dated 08.01.2026.

24. Merely to re-iterate, the aforesaid

order, adverts specifically to the factum of the

4th respondent's Visa expiring on 11.01.2026, thus

directing him to make an application for leave to

remain in the country for the children; but he

chose not to do so and to totally disregard and

defy it, and to flee to India with his children

on 11.01.2026.

25. The actions of the 4th respondent are

perspicuously, therefore, illegal, contrary to

law and wholly against established principles of

parenting, when the 1st petitioner - mother was

still continuing in the United Kingdom, 2026:KER:12482

completely unaware that this has been done to her

and that the children had been taken away. She

then travelled to India to prosecute this

original petition and we find her fully

justified.

26. Sri.Abdul Rasheed - learned counsel for

the petitioners, at this time, intervened to say

that the passports of the children are with the

4th respondent and that he is refusing to release

it to the 1st petitioner. He imputed that the

attempt of the 4th respondent is to hold the

children to himself and thus push the 1st

petitioner to a sense of despondency since she

has no other option but to travel to the United

Kingdom, to live and work there, being without

any other source of livelihood. He, therefore,

pleaded that, in the event this Court is to find

in his clients' favour, then directions also be

issued to the 4th respondent to hand over to her 2026:KER:12482

the passports of the children, so that she can

then take them to United Kingdom on her Visa.

27. Sri.N.L.Bitto - learned counsel for the

4th respondent, responded, saying that, even going

by the assertions of the 1st petitioner, she can

live in the United Kingdom only till the end of

2026. He asserted that, therefore, any permission

for her to take the children back to the said

country, would be contrary to their interests.

28. We cannot obtain favour with the afore

submissions of Sri.N.L.Bitto, when, as seen

above, we have already concluded affirmatively

that the 4th respondent has acted in a manner,

which is unconscionable, inequitable and hence,

unlawful.

29. In the above circumstances, we allow this

writ petition and direct that the children shall

continue with the mother, with full competence

being vested in her, to take them with her to 2026:KER:12482

United Kingdom as per law. We, consequently,

direct the 4th respondent to produce the passports

of the children before this Court on or before

16.02.2026, so that it can then be handed over

to the 1st petitioner in compliance of the afore

directions.

30. That being ordered, we are certain that

the children can never be alienated from either

of the parents, whatever be the strife they may

have between them. In an ideal situation, the

children should obtain equal time and company of

the parents; with their time being equally

divided, as has been done by the family court in

Bromley. This, perhaps, may have been possible,

had the 4th respondent acted in good faith in

terms of Ext.R4(e) order; but it is because of

his own actions that he has now lost any

opportunity of returning to the United Kingdom,

to be with the children. We cannot blame any one 2026:KER:12482

else for what he has done and for what he has

brought upon himself.

31. However, it is essential that the

children should be able to have continuous access

to and contact with the father; and that he

should be able to see them whenever it is

possible, either in the United Kingdom or in

India. If the 4th respondent is to obtain

permission to travel to the United Kingdom in

future, surely, he and the 1st petitioner would

have to abide by the orders to be issued by the

Family Court in the United Kingdom, and the time

of the children would be divided as per its

directives.

32. Until such time, however, we order that

after the children are taken away by the mother

to the United Kingdom in terms of the afore

directions, the following shall bind the parents:

(a) The 4th respondent will be at full 2026:KER:12482

liberty to talk with the children every

evening between 6.00 p.m. and 9.00 p.m.

(U.K time)- both on video calls; and

voice calls, and we record the

undertaking of Sri.Abdul Rasheed that

the 1st petitioner will facilitate this

without any impediment.

       (b)     The 1st petitioner shall not change

       the     nationality       of    the     children       as

       available         now,    without       the     express

       written        permission          of         the      4th

respondent, or until such time as they

are able to make arrangements between

themselves, if any, or through law.

(c) The petitioners will ensure that

the children are brought to India for a

minimum period of 30 days every year,

coinciding with their annual school

leave or such other; and the 1st 2026:KER:12482

petitioner shall inform the 4th

respondent of such at least two weeks in

advance, by WhatsApp, e-mail, and such

other means of communication. Once the

children are so brought, they shall be

in the custody of the father for a

minimum period of 25 days thereof,

without any restriction. The place of

exchange for this shall be in front of

the residential house of the 1st

petitioner at Kaloor, Ernakulam, as

mentioned in the cause title of this

case.

33. Needless to say, should the 1st petitioner

return, or be forced to return, to India for any

reason, then the afore arrangements would stand

modified, enabling the 4th respondent, as long as

he is also in India, to see the children every

weekend from 10.00 a.m. on Saturdays, till 5.00 2026:KER:12482

p.m. on Sundays. This arrangement, of course, is

subject to change as per the consent of the

parties, if they are able to so arrive; or

through legal processes.

This writ petition is thus ordered; but we

direct the matter be listed on 16.02.2026, to

obtain compliance of the directions to the 4th

respondent to produce the passports of the

children before this Court.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE DSV/11.02.2026 2026:KER:12482

APPENDIX OF WP(CRL.) NO. 136 OF 2026

PETITIONERS' EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER DATED 30-07-2024 OF THE HON'BLE FAMILY COURT , EAST LONDON Exhibit P2 TRUE COPY OF THE COMPLAINT SENT BY EMAIL DATED 13-01-2026 BY THE PETITIONER TO 3RD RESPONDENT Exhibit -P3 True copy letter issued in respect of petitioners son Fardeen Muhammed issued by Leigh Academy, Bexly, Avenue Road, Erith, Kent DA8 3BN dated 20-01-2026 Exhibit-P4 True copy letter issued in respect of petitioners daughter Aliya Muhammed issued by East Wickham Primary Academy, Wickham Street, Welling Kent DA16 3BP dated 21-01-

Exhibit-P5 True copy of whats app message forwarded by 4th respondent dated 09-09-2025 at 1.48 A.M (IST) Exhibit-P6 True copy of the Judgment reported in 2011(4) KHC 838 Hassan Rawther and Another vs Dr. S. Abdul Azeez

RESPONDENTS' EXHIBITS

Exhibit R4(a) A true copy of the communication issued from the of the Secretory, home department dated 12/11/2025 Exhibit-R4(b) A true copy of the order passed by the Family Court Bromly 23/12/2025 Exhibit-R4(c) A true copy of the Communication from the office of Emigration Advisor dated 5/1/2026 Exhibit-R4(d) A true copy of the letters issued from the The Inter National School, Thrissur dated 27/1/2026 Exhibit-R4(e) A TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT OF BROMLY DATED 8/1/2026.