Writ of habeas corpus is not maintainable for enforcing Family Court custody orders; such disputes must be resolved within the Family Court framework.

J U D G M E N T

P.B.Suresh Kumar, J.

This writ petition (Crl) is instituted seeking a writ of habeas corpus directing the fourth respondent, the Station House OfÏcer, Angamaly Police Station to produce before this court Fabeyon Jibin Grey and Albeyon Jibin Grey, the minor children of the petitioner from the custody of respondents 5 and 6, the paternal grandparents of the children, and hand over their custody to the petitioner.

2. The case set out by the petitioner in the writ petition is that the children referred to above who are aged 11 years and 7 years respectively were residing with the petitioner, and their father Jibin, the seventh respondent had taken them away from the custody of the petitioner deceitfully during December 2019; that during the year 2021, the petitioner instituted a proceedings before the Family Court, Kottayam at Ettumanoor as O.P.No.248 of 2021 and obtained an ex parte order for their custody and that the father and grandparents of the children who were parties to the said proceedings have not handed over the custody of the children to the petitioner in terms of the order passed by the Family Court. It is alleged by the petitioner in the writ petition that even though the petitioner attempted to take custody of the children from the house of respondents 5 and 6, they refused to hand over custody of the children to the petitioner in terms of the order of the Family Court. It is also alleged by the petitioner in the writ petition that though she sought police aid to secure the custody of the children in terms of the order of the Family Court, the police is not rendering any assistance to her.

3. It is seen that on 03.04.2023, when this matter was taken up, this Court passed an interim order directing the concerned police ofÏcials to produce the children before this Court on 10.04.2023, and on on 10.04.2023, when the children were produced before this court, this court suggested the parties to resolve the dispute by taking recourse to the process of mediation and adjourned the matter to 24.5.2023 awaiting the result of the mediation. It is seen that having regard to the fact that the school where the children are pursuing their studies was closed for summer vacation, this court also directed the custody of the children to be given to the petitioner till the next posting date. As it was represented before this court on 10.4.2023 that respondents 5 to 7 were advised to move the Family Court for setting aside the ex parte order secured by the petitioner, it was made clear by this court in the order passed on 10.4.2023 that the proceedings before this court will not preclude in any manner, the right of respondents 5 to 7 in seeking appropriate reliefs in respect of the order of the Family Court. The order passed by this Court on 10.04.2023 reads thus:

“The case set up in the above W.P.(Crl.) is to the effect that the petitioner herein, aged 34 years, is the wife of R7 and that their marriage was solemnized on 27.2.2011 and that the two minor alleged detenus herein (Fabeyon Jibin Grey, aged 11 years & Albeyon Jibin Grey, aged 7 years) are the two children (minor sons) born in the said wedlock. Due to matrimonial dispute, the petitioner was constrained to live separately from her husband and that R7 had taken away their children to his house. The petitioner was then constrained to file O.P.No.248 of 2021 before the Family Court, Ettumanur, Kottayam, seeking for custodial rights of the children. The Family Court as per Ext.P3 judgment rendered on 29.11.2022 has allowed the pleas in O.P.No.248 of 2021 by ordering that the permanent custody of the above said two alleged minor detenus are given to the petitioner.

2. According to the petitioner, notice was duly served on all the respondents in Ext.P3 proceedings, namely, husband and in-laws who are arrayed as R7, R5 and R6 in the present proceedings and that they did not care to defend the case and accordingly the Family Court was constrained to set them ex parte. Ti