JUDGMENT

Alexander Thomas, J.

The prayers in the instant Writ Petition (Criminal) are as follows:-

“A) to issue a writ of habeas corpus or such other appropriate writ order or direction commanding and compelling the respondents 1 to 6 to produce the corpus of Arshak S. and Ashfak S, aged 11 years, before this Hon’ble Court and to set them free.

B) pass such other writ order or direction that this Court may deem fit and proper in the facts and circumstances of the case;

C) and to award the cost of this petition D) dispense with filing of English translation of vernacular documents ”

2. Heard Sri.Sergi Joseph Thomas, learned counsel appearing for the petitioner, Sri.Alex M. Thombra, learned Public Prosecutor, appearing for official respondents 1 to 6 and Sri.Arun Chandran, learned counsel appearing for contesting respondents 7 to 9 (husband, husband’s father and husband’s mother, respectively of the petitioner).

3. The case set up in the above writ petition (civil) is that the petitioner is married to the 7th respondent and in that marital relationship, 3 children are born and that the elder 2 children are twins, aged 11 years, and that they are S. Arshak & S. Ashfak, respectively. That, the marital relationship between the petitioner and the 7th respondent is now faced rough weathers and that the 7th respondent has illegally taken the custody of S. Arshak & S. Ashfak, aged 11 years, and that they are under the legal illegal detention of R7, R8 & R9 and that the petitioner is now forced to live in her parental home, etc. Pursuant to the order dated 29.09.2022, the 2 alleged detenus (the abovesaid minor sons of the petitioner-S. Arshak & S. Ashfak), have been produced before this Court. The petitioner and the 7th respondent are also personally present before this Court. The 7th respondent would claim that the custody of the children have always been with him ever-since the petitioner left her marital home, about 1 ½ months back and that he has not, in any manner, illegally taken the custody of those children and those children continued to remain under the custodial care of the 7th respondent, even after the petitioner had left him. Whereas, the petitioner had only taken third child (minor son aged 4 years), with her, to her parental home.

4. Whereas the petitioner would reiterates allegations of illegal custody, etc.

5. Sri.Arun Chandran, learned counsel appearing for R7 to R9, would submits that his parties have received notice only yesterday and that they may be given time to file counter affidavit to state their case in the matter.

6. After hearing both sides, we note the basic nature of the rival pleas made in this case. After considering the rival pleas, we are not in a position to hold that the present custody of the 2 minor children with the 7th respondent, who is their father, can be said to be grossly illegal or unlawful. This we say so, only from the limited perspective of consideration of the plea for habeas corpus and not from any other perspective. For such cases, the appropriate remedy for the aggrieved party is to approach the Family Court, by filing appropriate petition under the Guardianship and Wards Act, seeking for custody/interim custody, etc., of the children.

7. Both sides apprise us that the jurisdictional Family Court concerned is the one at Mavelikkara (Alappuzha District).

8. Accordingly, liberty is accorded to the petitioner to file appropriate petition claiming custody and interim custody of the children before the jurisdictional Family Court, concerned, along with necessary application. On receipt of such petition, the Family Court will ensure that both sides are heard and orders shall be passed on the plea for interim custody, without much delay, preferably within a period of 5 weeks, from the date of service of notice of the said petition on the respondent therein. All issues relating to the adjudication of such custody before the Family Court are left open to be raised and decided on those proceedings. We m