Dismissed

Leo Zacharias v. the Director General of Police

Kerala HC9 Nov 2018WP(Crl.)/444/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition for Habeas Corpus filed by a father alleging illegal confinement of his minor children by their maternal grandparents. The court held that custody questions require adjudication under the Guardian and Wards Act by a competent court, finding no ground for interference under Article 226.

What did the court decide?

The writ of Habeas Corpus is dismissed; the petitioner is directed to seek appropriate remedy before the appropriate court.

Leo Zacharias Vs the Director General of Police — Child Custody and Guardianship | 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 T.V.ANILKUMAR

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FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940

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WP(Crl.).No. 444 of 2018

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PETITIONER:

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LEO ZACHARIAS AGED 32 YEARS S/O. SAKARIA, PERUMPALLIL (H), POOTHAMPARA P.O., KUTTIYADI, KOZHIKODE DISTRICT - 673 513

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BY ADV. SRI.MOHANAN V.T.K.

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RESPONDENTS:

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1 THE DIRECTOR GENERAL OF POLICE KERALA, THIRUVANANTHAPURAM - 695 004

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2 THE STATION HOUSE OFFICER, THOTTIPALAM POLICE STATION, KOZHIKODE-673513.

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3 THE DISTRICT POLICE CHIEF (KOZHIKODE RURAL) VATAKARA, KOZHIKODE-673101.

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4 JOSEPH K.T. @ JOYAN, AGED 58 YEARS KOCHUPARAMBIL (H), PINNAKKANAD, KALAKETTY (P.O), KUDAGU DISTRICT, KARNATAKA PIN-571211.

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5 KATHERNA @ OMANA W/O. JOSEPH, KOCHUPARAMBIL (H), PINNAKKANAD, KALAKETTY (P.O), NOW RESIDING AT FINE QUARTERS, AMMATHY P.O., KUDAGU DISTRICT, KARNATAKA PIN571211.

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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 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(Crl) No. 444/2018

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C.K. ABDUL REHIM & T.V. ANILKUMAR, JJ.

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W.P.(Crl) No. 444 OF 2018 S

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Dated this the 9^th day of November, 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 above writ petition is filed raising an allegation that two minor children of the petitioner, named Rohan Leo and Rose Leo, are under illegal confinement of the respondents 4 and 5. The respondents 4 and 5 are the parents of the mother of the minor children. Admittedly, the petitioner and the mother of the minor children are living in an estranged marital relationship. It is stated that, there were cases instituted before the Family Court seeking dissolution of their marriage and also for restitution of conjugal rights, filed by the wife and the husband respectively. The Family court had ordered restitution of conjugal rights by allowing the case instituted by the

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W.P.(Crl) No. 444/2018

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petitioner, through an order passed on 30.11.2016. It is alleged that, the mother of the minor children as well as the respondents 4 and 5 herein were restraining the petitioner from permitting to see the children. It is also mentioned that, the petitioner had approached 'Child Welfare Committee' of Kottayam District and based on their direction the children were produced before the said authority once, in the month of June, 2018. It is alleged that, thereafter the respondents 4 and 5 had shifted their residence to 'Kudag' in Karnataka State, along with the children. It is further alleged that the mother of the minor children had left to gulf countries. According to the petitioner, the respondents 4 and 5 are not in a position to look after the welfare of the children, because of their old age and illnesses. The petitioner being the father, has got a natural right to have the custody of the children, is the contention. The petitioner submitted a complaint before the police authorities at Vadakara requesting to trace out the children, to which Ext.P3 reply was

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W.P.(Crl) No. 444/2018

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given. It is mentioned in Ext.P3 that the enquiries made by the police had revealed that the children are now staying with the respondents 4 and 5 within the limits of Ammathy Police Station in Kudag District in Karnataka State, at a rented house at 'Fine Quarters'. In Ext.P3 it is mentioned that the police authorities are not in a position to take any action since the cases touching upon matrimonial disputes are pending before this court. The petitioner alleges that the respondents 4 and 5 are changing there residence frequently in order to evade any process of law. Under such circumstances, alleging that the custody of the minor children at the hands of the respondents 4 and 5 is illegal, the petitioner is seeking a writ of Habeas Corpus commanding for production of the corpus of the minor children before this court.

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From the averments in the writ petition itself it is evident that the minor children were in the custody of their mother, even before the year 2014. This is evident from the fact

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W.P.(Crl) No. 444/2018

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that the petitioner sought for restitution of conjugal rights in an original petition filed before the Family Court in the year 2014. Now the petitioner is raising an allegation that the mother of the minor children had left the country and the children are now entrusted to the custody of their maternal grandparents. Whether the petitioner is the most suitable guardian to have custody of the minor children, considering the welfare and wellbeing of the children, is a question which requires elaborate adjudication and decision by an appropriate court having jurisdiction under the Guardian and Wards Act. From the circumstances mentioned as above, this court cannot hold that the minor children are under illegal confinement of the respondents 4 and 5. We find no basis with respect to the allegation that the whereabouts of the minor children are not known to the petitioner, in view of the contents of Ext.P3 reply issued by the police authorities.

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Therefore we do not find any ground for interference

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W.P.(Crl) No. 444/2018

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in the matter by invoking jurisdiction vested on this court under Article 226 of the Constitution of India, for issuance of any writ of Habeas Corpus. It is left open to the petitioner to seek appropriate remedy before the appropriate court for getting custody of the minor children or for establishing his visitation rights over the children, if so advised.

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The writ petition is dismissed, subject to the above

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observations.

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

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Sd/- T.V. ANILKUMAR, JUDGE.

ul/-

[True copy]

P.S. to Judge.

W.P.(Crl) No. 444/2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER NO.8502/2018 OF THE CHILD WELFARE COMMITTEE DATED 14.5.2018.

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EXHIBIT P2 TRUE COPY OF THE PETITION SUBMITTED BY PETITINOER TO THE DISTRICT POLICE CHIEF (RURAL), KOZHIKODE DATED 31.5.2018.

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EXHIBIT P3 TRUE COPY OF THE REPLY SENT BY THE SECOND RESPONDENT DATED 13.6.2018.

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EXHIBIT P4 TRUE COPY OF THE COMPLAINT FILED BEFORE THE POLICE OFFICER, SIDHAPPURA DATED 3.11.2018.

Leo Zacharias v. the Director General of Police

Case brief

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Leo Zacharias v. the Director General of Police

Case brief

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