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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
Vipin Das, S/o. Dassan Das – Appellant
Versus
Station House Officer –Respondent
WP(Crl.) No. 1012 of 2022
Decided on : 21-11-2022
Constitution of India, 1950 - Article 226 - Hindu Minority and Guardianship Act, 1956 - Section 6 - Wards Act, 1890 –Section 39 – Empowers all the High Courts of India to issue the writs - Natural guardian of a Hindu minor boy or unmarried girl is the father, and only after him, the mother -Whether minor ordinarily resides within area on which court exercises such jurisdiction - if the child is retained with her maternal grandparents in this case, she is likely to develop more bonding with them and after some time, she may be even very reluctant to go with the petitioner, who is her father, and this would result in depriving both the child and the father of each other’s love and affection (Para 18).
Finding of the Court :
Court had passed a series of interim orders in this case, interim custody of child was given to petitioner – Court had passed orders granting interim visitorial rights to R-2 to R-4 - In fact, petitioner had fairly submitted that he will take child to residence of R-2 to R-4, in order to give them access to visitorial rights, even though relationship between parties were not cordial, to say least - Later, in view of his employment requirements, petitioner has to go back to Gujarat - However, court persuaded petitioner to stay back for some more time and court had given interim custory of child for a week to respondents 2 to 4 and child has now been returned to petitioner
Result: Petition stand disposed of
JUDGMENT :
ALEXANDER THOMAS, J.
The prayers in the afore captioned Writ Petition (Criminal) seeking for Habeas Corpus are as follows:
ii. Dispense with filing of the translation of vernacular documents and
iii. Such other order or direction deems fit and proper for this Hon'ble Court in facts and circumstances of the case.”
2. Heard Sri.K.B.Arunkumar, learned counsel appearing for the petitioner, Sri.E.C.Bineesh, learned Prosecutor appearing for official respondent No.1 and Sri.P.K.Sajeevan, learned counsel appearing for contesting respondents 2 to 4.
3. The case set up in the above Writ Petition (Criminal) is to the effect that the petitioner had married the daughter of R-2 & R-3 (who is also the sister of R-4) on 14.12.2016. A girl child viz. 'Vaishnavi Vipin' was born to the above couple on 28.11.2018, as evident from Ext.P-1 Birth Certificate. The petitioner's parents have been settled in Gujarat for a very long time. The petitioner's father passed away some time back. The petitioner, now aged 38 years, is working as Principal Software Engineer in a Bangalore based company in Gujarat. The child has been studying in Pre-Kindergarden Nursery section in Vijayaben Mohanbhai English Medium School, Halol, Panchmahal, Gujarat, which is said to be a well reputed school providing schooling up to 12th Standard and various other extracurricular activities. The petitioner's sister, aged 35 years, is also settled in Gujarat along with her husband and child and it is about 3 hours journey from the petitioner's residence. Further, it was found, some time in April, 2020 or so, that the petitioner's wife 'Juny' was suffering from cancer ailments and she was given medical treatment in Gujarat itself, as evident from Ext.P-2 series of documents. Respondents 2 & 3 (the parents of the petitioner's wife) requested that the petitioner's wife should be given treatment at the Regional Cancer Centre, Thiruvananthapuram (RCC). According to the petitioner, he could not immediately leave Gujarat because of his employment responsibilities and as he had to settle some of the loans taken for expending money for his wife's treatment. That, accordingly, respondents 2 & 3 had gone to Gujarat and had taken the petitioner's wife and child to Kerala, for giving treatment to the petitioner's wife at RCC, Thiruvananthapuram on 25.9.2022. Thereafter, the petitioner was not made aware about the subsequent developments regarding the medical treatment. The petitioner was thus constrained to come down to Kerala on 30.9.2022 to know about his wife's treatment and R-2 to R-4 were behaving to the petitioner in a very indifferent manner. Thereafter, with great difficulty, the petitioner could meet his wife, some time in the first week of October, 2022 and she was discharged from the Hospital at Thiruvananthapuram on 8.10.2022. The petitioner had then taken his wife for further treatment at Apollo Hospital, Karukutty, Ernakulam district. Later, on 9.10.2022 she was shifted to another hospital at Ottapalam, Palakkad district, which is near to the residence of R-2 to R-4. On 10.10.2022, the petitioner's wife 'Juny' had breathed her last. Ext.P-3 is the Death Certificate in that regard. Further that, R-2 to R-4 were thereafter not permitting the petitioner to have access to the child despite various requests. The petitioner was thus constrained to give various representations and complaints before the SHO, Ottapalam and SHO, Shornur. Ext.P-4 is one such petition filed before the SHO, Ottapalam, within whose jurisdiction R-2 to R-4 had confined the child in their residence. It is in the light of these averments that the petitioner had filed the instant Writ Petition with the afore
Handing over of child’s custody to father at this stage might create some problems initially and that would be resolved with passage of time.
The welfare of the child is the paramount consideration in custody disputes, and habeas corpus is not the appropriate remedy for custody transfer when legal avenues exist.
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
A writ of habeas corpus is not maintainable for enforcing visitation rights or handling child custody disputes already governed by Family Court orders, unless there is proof of illegal confinement; s....
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