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2021 Supreme(Online)(KER) 37458
HIGH COURT OF KERALA
ALEXANDER THOMAS, K. Babu, JJ
ABDUL SAMED – Appellant
Versus
STATE OF KERALA, – Respondent
WP(Crl.)/126/2021
P.T.SHEEJISH
Habeas corpus cannot be used for custody disputes; such issues must be resolved in family court.
Headnote:
Habeas Corpus - Custody Dispute - Article 226 - The court assessed the petition under Article 226 of the Constitution, determining that the allegations of illegal detention lacked evidence and advised the petitioner to pursue custody through family courts.
Fact of the Case:
The petitioner sought a writ to produce his son, alleging illegal detention by the child's mother, who had eloped with another man. He claimed custody rights based on their marital relationship and the birth of the child.
Finding of the Court:
The court found no substantial evidence of illegal detention and determined that custody issues should be resolved in the family court. It allowed for interactions between the petitioner and child under police supervision.
Issues: Whether the child's detention by the mother was illegal and if the petitioner could seek habeas corpus for custody.
Ratio Decidendi: The court held that habeas corpus is not the appropriate remedy for custody disputes which should be addressed by the family court.
Final Decision: The writ petition is disposed of with directions for supervised interaction between the petitioner and the child.
JUDGMENT
Alexander Thomas, J.
The prayer in the aforecaptioned criminal writ proceedings, filed under Article 226 of the Constitution of India are as follows:-
“i) Isssue a writ of habeas corpus or any other appropriate writ or order or direction, directing the respondents 1 to 4, to produce the corpus of the boy, named as T. Amjad, aged 04 years, who is the son of the petitioner, before this Hon'ble Court, in the interest of justice.
ii) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of this case.”
2. Heard Sri.P.T. Sheejish, the learned counsel appearing for the petitioner, and Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for official respondents 1 to 4. In the nature of the orders proposed to be passed by this Court in this petition, notice to contesting respondent No.5 will stand dispensed with.
3. The case projected in this petition is to the effect that the petitioner is a Muslim who had married a lady and the said marital relationship is subsisting and that there are two children born in the said wedlock of the petitioner with the said lady. That, thereafter the petitioner aged 50 years, has solemnised a second marriage with the 5th respondent.
Further that the alleged detenue, T. Amjad, aged 4 years, is the child born in the wedlock of the petitioner with the 5th respondent. That the 5th respondent had eloped with another man named Sudheer and the child is illegally detained at the instance of the 5th respondent and the said man.
4. Sri.Saigi Jacob Palatty, the learned Public Prosecutor, appearing for official respondents 1 to 4 would submit on the basis of instruction of the 4th respondent-Station House Officer, that the police officials concerned have conducted enquiries on the petitioner's case and has recorded the statement of the 5th respondent and that the alleged detenue, T. Amjad, is also with the 5th respondent and the statement of the 5th respondent has also been recorded, whereby she has stated that due to extreme marital discord with the petitioner, she was constrained to go away from the marital home and that she is now residing in the house of her deceased parents and that she, as a mother, has every right to have custody of the minor son T. Amjad, who is aged only 4 years and that the custody of the child is not illegal. Further she has also stated before the Police that she has no objection in the petitioner visiting the child appropriately once in a week after prior appointment.
5. From the abovesaid submissions it appears that, the case of illegal detention is not seriously disclosed in this case and if at all the petitioner has any disputes or issues with the 5th respondent as regards the custody of their minor son, it is for him to workout such legally justiciable grievances before the Family Court concerned.
6. However, taking note of the fact that the petitioner is the mother of the child, it is ordered that the 4th respondent-Station House Officer, as a one time measure, may ensure that the petitioner may be given an opportunity to interact with the child in the place where the 5th respondent and the child are now residing, in the presence of a woman police official. In that regard, the 4th respondent may make appropriate arrangements after co- 0rdinating both the petitioner and the 5th respondent and the time and place of the said visit in the presence of the woman police officer may be informed to the petitioner and the 5th respondent. Thereafter, in case, the petitioner has any legally justiciable grievances it is for him to work out his remedies in accordance with law and before the appropriate Forum like Family Court, etc.
With these observations and directions the above writ petition (criminal) will stand finally disposed of.
Sd/- Sd/-
ALEXANDER THOMAS, JUDGE Sd/- Sd/-
K. BABU, JUDGE Skk//27052021
ANNEXURE PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE BIRTH CERTIFICATE OF THE DETENUE.
EXHIBIT P2 THE TRUE COPY OF THE PHOTOGRA
