Dismissed

Sadiq Hamza v. Shereenahpallikandi

Kerala HC17 Sept 2018WP(Crl.)/377/2018

Case brief

AI extract

What is this about?

A Writ Petition (Crim) filed for Habeas Corpus to secure the release of the petitioner's second wife and minor son, alleging illegal detention. The Court dismissed the petition, holding that the wife and child left voluntarily due to domestic discord and the mother's custody of the child is not illegal.

What did the court decide?

The writ petition was dismissed as there was no basis for the allegation of illegal confinement.

Sadiq Hamza Vs Shereenahpallikandi — Matrimonial and Divorce | Kerala HC (2018)

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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 C.K.ABDUL REHIM &

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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MONDAY, THE 17TH DAY OF SEPTEMBER 2018/26TH BHADRA, 1940

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WP(Crl.).No. 377 of 2018

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PETITIONER:

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SADIQ HAMZA, MUSLIM, AGED 52 YEARS S/O SADIQ, RESIDING AT ALLAHU AKBAR MELVETTOOR, MELVETTOOR (PO), VARKALA TALUK, THIRUVANANTHAPURAM (DIST)-69512.

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BY ADVS. R. ANILKUMAR SRI.G.RADHAKRISHNAN

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RESPONDENTS:

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1 SHEREENAHPALLIKANDI AGE NOT KNOWN SISTER OF LATE SHERAFUDEEN, PALLIKANDI HOUSE, SULTHAN BATHERI P.O., WAYANAD (DIST)-673592.

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2 C.I. OPF POLICE AND SHO, VARKALA POLICE STATION, VARKALA (P.O.)PIN-695141.

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3 S.I. OF POLICE VARKALA POLICE STATION, VARKALA (P.O.)-PIN-695141.

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4 DEPUTY SUPERINTENDENT OF POLICE SULTHAN BATHERI, WAYANAD DISTRICT-670645.

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OTHER PRESENT:

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SR.GP.SRI. K.B.RAMANAND

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THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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-:2:-

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W.P.(Crl) No. 377 /2018

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C.K. ABDUL REHIM

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R. NARAYANA PISHARADI, JJ.

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W.P.(Crl) No. 377 OF 2018

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Dated this the 17^th day of September, 2018

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J U D G M E N T

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Abdul Rehim, J.

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The petitioner is approaching this court seeking a writ of

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Habeas Corpus for directing production of the corpus of his second wife, Smt.Mubeena and her minor son named Hamsa, based on the allegation that they are under illegal detention of the 1^st respondent.

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It is stated in the writ petition that; Smt.Mubeena is the second wife of the petitioner and Master Hamsa is the child born out of their wedlock. Smt.Mubeena and Master Hamsa(hereinafter referred to as 'the alleged detenues') were taken from the custody of the petitioner by the respondents 3 and 4 on 15.05.2018, based on a petition filed by the 1^st respondent and they were given custody of one Smt.Surimi, Varuvilla House, Vettoor P.O. According to the petitioner,

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W.P.(Crl) No. 377 /2018 -:3:-

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present whereabouts of the alleged detenue is not known to him. It is alleged that the alleged detenues are detained by the 1^st respondent in Wayanadu, with the aid of respondents 2 to 4 under political influence. It is stated that, the petitioner had filed O.P.(G&W) No.711/2018 before the Family Court, Attingal seeking permanent custody of the minor child, Master Hamsa. Along with the said O.P. the petitioner had also filed I.A. No.1072/2018 seeking for interim custody of the child, pending disposal of the original petition. It is stated that, at the time when the case was filed before the Family Court, the alleged detenues were staying with Smt.Surimi of Varuvilla house. But after issuing notice from the Family Court, they have left the house of Smt.Surimi. It is stated that, on enquiry made by the petitioner it was revealed that, they are at present in Wayanad in the custody of the 1^st respondent and that Smt.Mubeena is now working as a house made somewhere.

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From the above mentioned averments, it is evident that, the wife of the petitioner, Smt.Mubeena had left the company of the petitioner on her own wish and will. In Ext.P5

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W.P.(Crl) No. 377 /2018

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-:4:-

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original petition, which was filed before the Family Court as O.P. (G&W) No.711/2018, the petitioner himself had admitted that the alleged detenues had left the house of the petitioner on the basis that Smt.Mubeena is not willing to stay with him and that she is not prepared to leave the child(Master Hamsa) along with the petitioner.

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From the averments contained in the writ petition and from the exhibits produced therewith it is evident that, on an earlier occasion also the alleged detenues had left the company of the petitioner, and a missing case was registered by the 3^rd respondent as Crime No.695/2018 under Section 57 of the Kerala Police Act. The statement of Smt.Mubeena recorded by the Police, when she was traced out in that case, is also to the effect that she had left the company of the petitioner because she does not want to live with the petitioner under matrimony.

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From the above facts it is evident that Smt.Mubeena, the second wife of the petitioner, had left her matrimonial home due to the disharmony and dispute in her matrimonial life with the petitioner. It is also evident that the

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W.P.(Crl) No. 377 /2018 -:5:-

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minor child was taken by Smt. Mubeena and is now kept in her custody. Evidently, the petitioner had approached the appropriate court seeking for custody of the minor child. It is for him to pursue that proceedings, if he is desirous of getting custody of the minor child, since the minor child is now staying along with his mother, we cannot find that the minor child is under illegal custody of Smt. Mubeena. As stated above, it is evident from the averments in the writ petition itself that, Smt. Mubeena is living separated from the petitioner because of the matrimonial disharmony between them. It is for the petitioner to take appropriate steps to resolve the matrimonial disputes and

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to bring back his wife and child. Therefore we do not find any basis for the allegation that the alleged detenues are under illegal confinement of the 1^st respondent.

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Consequently, the above writ petition fails and the same is hereby dismissed.

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Sd/- C.K. ABDUL REHIM, JUDGE .

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Sd/- R. NARAYANA PISHARADI, JUDGE .

[True copy]

ul/-

P.S. to Judge.

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W.P.(Crl) No. 377 /2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 COPY OF THE FIR IN CRIME 695/2018 OF VARKALA POLICE STATION. EXHIBIT P2 TRUE COPY OF THE REPORT DATED 02/05/2018 OF THE SI OF POLICE, VARKALA IN CRIME 695/18 VARKALA POLICE STATION.

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EXHIBIT P3 COPY OF THE STATEMENTS OF SHIFANA RECORDED BY THE MAGISTRATE ON 02/05/18.

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EXHIBIT P4 COPY OF THE STATEMENTS OF MUBEENA RECORDED BY THE MAGISTRATE ON 02/05/18.

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EXHIBIT P5 COPY OF THE PETITION IN OP (G&W) NO.711/2018 OF THE FAMILY COURT, ATTINGAL.

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EXHIBIT P6 COPY OF IA NO.1072/18 IN OP (G&W) NO.711/2018 OF THE FAMILY COURT, ATTINGAL.

Sadiq Hamza v. Shereenahpallikandi

Case brief

What is this about?

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Sadiq Hamza v. Shereenahpallikandi

Case brief

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