Dismissed

K.Shaji v. Saidu

Kerala HC14 Dec 2010WP(Crl.)/484/2010

Case brief

AI extract

What is this about?

Petitioner filed a writ of habeas corpus seeking to trace and produce his 12-year-old son allegedly detained by the first respondent. The court held that the dispute involves private custody matters between entrusted parties, not illegal confinement, and dismissed the petition, directing the petitioner to approach the Family Court.

What did the court decide?

The writ of habeas corpus was dismissed. Relief to approach the Family Court was granted.

K.Shaji Vs Saidu — Child Custody and Guardianship | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN

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TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932

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WP(Crl.).No. 484 of 2010(S) ---------------------------

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PETITIONER:

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K.SHAJI, S/O.LATE KOYAKUTTY, AGED 38, KAVIL VEEDU, PALLIKANAKKU P.O. KAYAMKULAM (VIA), KRISHNAPURAM VILLAGE, KARTHIKAPALLY TALUK, ALAPPUZHA DT.

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BY ADV. SRI.K.K.SATHEESH

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RESPONDENTS:

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SAIDU, THELARICKAPALLIYALIL, ANDREW PALLI, PATTAMBI P.O., OTTAPALAM TALUK, PALAKKD DISTRICT.

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SUB INSEPCTOR OF POLICE, PATTAMBI.

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SR. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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**R.BASANT & K.SURENDRA MOHAN, JJ. *************************

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**W.P(Crl) No.484 of 2010 *******************************

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Dated this the 14^th day of December, 2010

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JUDGMENT

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BASANT, J.

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The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his 12 year old son.

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The mother of the child is not arrayed as a party to this petition. According to the petitioner, the mother of the child is employed abroad. The child is now aged about 12 years. For the past 10 years, the child was in the custody of the 1^st respondent. The 1^st respondent admittedly came into custody of the child on the basis of an alleged entrustment of the child by the petitioner in favour of the 1^st respondent. He was bringing up the child for the past about a decade admittedly.

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What is the grievance of the petitioner now? According to the petitioner, the petitioner has now come to his native place. He was earlier employed outside the State at Mumbai. The 1^st respondent is not permitting the petitioner to have access and to interact with the child. It is, in these

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W.P(Crl) No.484 of 2010

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circumstances, that this petition for issue of a writ of habeas corpus has been filed.

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In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether the alleged detenu is under any illegal confinement or detention. In the facts and circumstances of this case even if the entire version of the petitioner were accepted as gospel truth, we note that he has admittedly entrusted the child to the 1^st respondent. The 1^st respondent has been discharging his assignment for the past about one decade. Some differences of opinion evidently appear to have marred the relationship between the petitioner and the 1^st respondent even accepting all the averments. That is no dispute that can confer on us or persuade us to invoke the jurisdiction in Article 226 of the Constitution of India to issue a writ of habeas corpus. Such powers have to be invoked to meet extraordinary situation where questions of freedom and liberty of the individual are involved. This, we find, is a pure and simple dispute between the father of the child and a person whom he has allegedly entrusted the child. The dispute regarding the manner in which the the 1^st respondent is discharging the assignment left to him is not to be adjudicated and resolved by

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W.P(Crl) No.484 of 2010 3

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invoking the constitutional jurisdiction under Article 226. The dispute, we feel, must ordinarily be resolved by a Guardian and Wards court. The petitioner's option to go before the Family Court and seek relief shall remain unfettered by the dismissal of this Writ Petition.

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We should not be assumed to have swallowed all the assertions made in the Writ Petition. The non impleadment of the mother does arouse doubts and reservations in our mind. In the petition to be filed before the Family Court to claim custody of the child, needless to say, the mother of the child must certainly be arrayed as a party to give the court an opportunity to ascertain all dimensions of the dispute.

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With the above observations, this Writ Petition is

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dismissed.

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(R.BASANT, JUDGE)

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(K.SURENDRA MOHAN, JUDGE)

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rtr/

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W.P(Crl) No.484 of 2010 4

K.Shaji v. Saidu

Case brief

What is this about?

What did the court decide?

K.Shaji v. Saidu

Case brief

What is this about?

What did the court decide?

What the court decided

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