In a writ petition seeking custody of a minor detenu held in Qatar, the High Court of Kerala held that since the petitioner and respondent are before the Family Court with pending proceedings and ongoing mediation, the writ petition lacks grounds for interference. The court disposed of the writ without invoking Article 226 jurisdiction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941
WP(Crl.).No.293 OF 2019
PETITIONER/S:
SHIBU KUNJUMON
AGED 36 YEARS
S/O.C.J.KUNJUMON, CHAWKAYIL PUTHENVEEDU, MAVELIKARA BY ADV. SRI.B.KRISHNA MANI
RESPONDENT/S:
1 THE SECRETARY
MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA, CABINET SECRETARIAT, RAISINA HILL, NEW DELHI-110001
2 THE AMBASSADOR EMBASSY OF INDIA, VILLA NO.86 AND 90, STREET NO.941. AL EITHRA STREET, ZONE 63, P.O. BOX NO.2788 DOHAQATAR. [NAME OF 2ND RESPONDENT IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 3-09-2019 IN IA 01/2019. 3 SHERINE THOMAS, AGED 32 YEARS, W/O.SHIBU KUNJUMON, THAMARAVELI THARAYIL, PALLIPPADU .P.O, NADUVATTOM MURI, HARIPAD, ALAPPUZHA690514 NOW WORKING AND RESIDING AT RAWDAT AL KHAIL HEALTH CENTRE, PRIMARY HEALTH CENTRE, CORPORATION, MUNTHASA, DOHA QATAR, PB NO.26555
DETENUE
SHEBIN SHIBU, S/O.SHIBU KUNJUMON(MINOR), AGED 5 YEARS, REPRESENTED BY MOTHER SHERIN THOMAS, W/O.SHIBU KUNJUMON, AGED 32 YEARS, THMARAVELI THARAYIL, PALLIPPADU.P.O., NADUVATTOM MURI, HARIPAD, ALAPPUZHA690514 NOW WORKING AND RESIDING AT RAWDAT AL KHAIL HEALTH CENTRE, PRIMARY HEALTH CENTRE, CORPORATION, MUNTHASA, DOHA QATAR, PB NO.26555.
R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
OTHER PRESENT:
ADV R HARIKRISHNAN--R3 . GP --K B RAMANAND
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(Crl.).No.293 OF 2019
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JUDGMENT
Dated this the 4th day of December 2019
Harilal, J.
The petitioner herein is the husband of the second respondent herein as well as the father of the alleged detenu. This writ petition has been filed on the allegation that the alleged detenu, his son, is under the unlawful detention of the second respondent. According to the petitioner, he had preferred O.P.(G&W) No.1479/2018 before the Family Court, Mavelikkara under the provisions of the Guardians and Wards Act, seeking custody of the child by Ext.P1 and in that proceedings the Family Court has already passed Ext.P4 order directing the second respondent to produce the detenu before the Family Court, Mavelikkara on 2.4.2019. But the second respondent has not complied with the directions in the said order so far. The petitioner prays for issuing a direction to the second respondent to produce the detenu before this Court and to handover the custody of the detenu to him.
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WP(Crl.).No.293 OF 2019
both the petitioner and the second respondent. The second respondent submits that she had filed O.P.(Div)No. 49/2019 before the Family Court, Mavelikkara seeking dissolution of marriage and the same is also pending for consideration before that court. She has come to India from Qatar on 22.11.2019, to appear in both the cases and she appeared and mediation is going on in both the cases, before the counsellor.
Hence, this writ petition will stand disposed of accordingly.
Sd/-
K.HARILAL
JUDGE Sd/-
C.S.DIAS
JUDGE
SHG
WP(Crl.).No.293 OF 2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION, OP(G&W)1479/2018 DATED NIL BEFORE THE FAMILY COURT, MAVELIKKARA EXHIBIT P2 TRUE COPY OF THE SETTLEMENT DEED DATED 14.2.2018 BEFORE THE OFFICE OF THE SUB REGISTRAR, MAVELIKARA
EXHIBIT P3 TRUE COPY OF THE APPLICATION, IA NO.2816/2018 DATED 19/12/2018 IN OP(G AND W) 1479/2018 BEFORE THE FAMILY COURT, MAVELIKKARA
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 8.1.2019 IN IA NO.2816/2018 IN OP(G AND W)1479/2018 BEFORE THE FAMILY COURT, MAVELIKKARA
EXHIBIT P5 TRUE COPY OF THE OP(DIV)NO.49/2019 DATED 16.1.2019 BEFORE THE FAMILY COURT, MAVELIKKARA
3 issues framed by the court
Whether the High Court should issue a direction under Article 226 for the custody of a minor detenu when parties are already before the Family Court.
Whether the writ petition for custody disposal is maintainable in the absence of default by the second respondent to produce the child.
How to handle a custody dispute where a divorce petition is pending and mediation is in progress before the Family Court.
SHIBU KUNJUMON
THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA
SHERINE THOMAS
K. HARILAL
C.S. DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
