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2022 Supreme(Ker) 170
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, C. JAYACHANDRAN, JJ.
Shain Sudhakaran, S/o Sudhakaran Sithara – Appellant
Versus
The Union Of India – Respondent
WP(Crl.) No. 261 of 2022
Decided on : 21-03-2022
Advocate Appeared:
For the Appellant : M.R.SASITH, NEELANJANA NAIR, RAJITHA V.K, PREETI S.
BHAVANA K.K
For the Appellant : MANU S., ASG OF INDIA, SRI.E.C.BINEESH - GP
Point of Law: Primary consideration is, and ought to be, whether the custody of the child is illegal or unlawful.
Headnote:
Writ of Habeas Corpus - Child in custody of mother - Illegal detention - Welfare of the child - Whether the custody of the child is illegal or unlawful - Only when the answer to this question is in the affirmative, can this Court proceed to the next question, whether the welfare of the child requires a change in the present custody of the child.
Finding of the Court :
In the absence of any illegal detention, we are not inclined to invoke the jurisdiction to issue a writ of Habeas Corpus.
Result: Petition dismissed
JUDGMENT :
Jayachandran, J.
Petitioner is the father of the alleged detenue, a minor boy, aged 8 years. The 6th respondent is the mother of the alleged detenue and respondents 7 and 8 are the parents of the 6th respondent. According to the petitioner, the alleged detenue is in illegal custody of respondents 6 to 8 in contravention of Ext.P2 order of the Family Court, Kottarakara in O.P (G&W) No.1660/2018. Petitioner seeks issuance of a writ of Habeas Corpus, commanding production of the minor child before this Court and to give his custody to the petitioner.
2. The petitioner would elaborate that the marriage between the petitioner and the 6th respondent was solemnised on 16.05.2012 at Kulathupuzha. On 09.08.2016, the 6th respondent deserted the petitioner and left to Dubai, leaving the minor son with her parents, respondents 7 and 8. Since then, the minor child has been in the custody of the 6th respondent, without affording an opportunity to the petitioner to mingle and interact with the child. The petitioner preferred an Original Petition under the Guardians and Wards Act as O.P (G&W) No.1660/2018 before the Family Court, Kottarakara, seeking permanent custody of the child. The Family Court, vide Ext.P2 order dismissed the original petition, affording minimal visitation rights to the petitioner, that is to interact with the minor/ward through video call on every Monday and Thursday, for a duration of 10 minutes between 5.00 p.m and 5.30 p.m. After expiry of three months from the date of Order, the respondents therein were directed to hand over the custody of the minor ward to the petitioner from 10.30 a.m. till 3.30 p.m on every Saturday for a period of three months. Thereafter, the respondents stood directed to hand over the custody of the minor ward to the petitioner on every second and fourth Saturday at 10.30 a.m., till 3.30 p.m. of the succeeding Sunday. Aggrieved by Ext.P2 order, the petitioner preferred an appeal before this Court as MAT Appeal No.604/2021, which is pending consideration.
3. According to the petitioner, respondents 7 and 8 failed to comply with any of the directions in Ext.P2. They do not pick up the phone and even changed the phone numbers, so as to defeat the minimal rights of the petitioner. The petitioner has not seen the child for last more than four years. The petitioner is a citizen of USA and he came to Kerala only to see his child. He has been residing in Kerala since November, 2021, with the sole purpose of meeting his child, which is denied and defeated by respondents 6 to 8. While so, on 27.02.2022, the petitioner got information that respondents 6 to 8 have flown to Dubai along with the ward, without the consent and knowledge of the petitioner, since the 6th respondent is working there. The petitioner would allege that the detenue/ward is in illegal custody of respondents 7 and 8. The minor male child aged 8 years needs the care and attention of his father as well. On such premise, the petitioner seeks the relief above referred. The petitioner relied upon the following decisions of the Honourable Supreme Court in support of his case.
i). V.Ravi Chandran v.Union of India and Others (2010) 1 SCC 174
ii). Shilpa Aggarwal vs. Aviral Mittal (2010) 1 SCC 591.
iii). Syed Saleemuddin v.Dr.Rukhsana and Others, (2001)5 SCC 247.
iv). Gaurav Nagpal v.Sumedha Nagpal, (2009) 1 SCC 42.
v). Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479.
4. Having heard learned counsel appearing for the petitioner, we are not persuaded to entertain this writ petition seeking issuance of a writ of Habeas Corpus.
5. In Kanu Sanyal v. District Magistrate, Darjeeling, 1973 SCC (2) 674, a 5 Judges Bench of the Honourable Supreme Court held thus about the scope and nature of the writ of Habeas Corpus.
“4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who
