Ansala K.A vs Union Of India

Anu Sivaraman, J.

This writ petition is filed seeking the following reliefs :-

“a) Issue a writ of Habeas Corpus to the 3rd respondent or any police officer concerned to immediately take steps to trace out the detenues and produce them before this Hon'ble Court and release them to the petitioner.

b) Issue a writ, or direction to the 4th respondent to ensure the safety and security o the detenues.

c) Issue appropriate direction to the 2nd respondent to take appropriate action invoking the parens patriae jurisdiction and responsibility of the 2nd respondent, and to bring back the detenues from abroad.”

Heard the learned counsel for the petitioner and the learned Government Pleader.

It is submitted that the petitioner is the wife of the 4th respondent and the 5th respondent is the mother of the petitioner. It is stated that the 4th respondent has illegally taken away two minor children of the petitioner without her knowledge and consent to Muscat in Oman and that she is not being allowed to contact the children. It is stated that GOP No.352/2020 is pending before the Family Court, Irinjalakuda and since the children have been taken out of India, the petitioner was permitted to have video call with the children on every Friday, but, in spite of repeated efforts of the petitioner, she is not able to speak with the children on WhatsApp call or video call because the 4th respondent is preventing the children from talking to the petitioner. It is stated that I.A. No.5/2020 was filed in GOP No.352/2020 as evidenced by Ext.P8 and a relief was sought to send back the children to the native place to stay with the petitioner. However, the said I.A. has been adjourned repeatedly. Further, it is stated that representations have been submitted before respondents 1 and 3 on 21.7.2023 as evidenced by Exts.P9 and P10, but no steps have been taken in that regard. It is contended that the lives of the children are at peril and that therefore, this Court ought to direct the production of the children before this Court since they are under illegal detention.

Respondents 4 and 5 have filed a detailed counter affidavit stating that there are three children in the wedlock between the petitioner and the 4th respondent. It is stated that the 4th respondent and the petitioner were residing in Muscat with the children and the children were studying there. It is stated that the petitioner joined a Christian Congregation called Emperor Emmanuel Church and this was the reason for the marital discord between the petitioner and the 4th respondent. It is submitted that there was an earlier Original Petition filed before the Family Court seeking custody of the children and the petitioner had taken the passports and other documents of the children with her. It is stated that the 4th respondent had also filed a man missing complaint since the petitioner was missing with the three children from 4.1.2020 and the petitioner was produced before the Judicial First Class Magistrate Court and the children were entrusted with the 5th respondent. It is submitted that Ext.P2 order was issued by the Family Court directing the petitioner to hand over the passports and other documents of the children to the 5th respondent. Complaints were preferred before the police, the Government as well as the Child Welfare Committee. The petitioner had approached this Court as well and Ext.P3 judgment was passed in O.P.(FC) No.108/2020. It is stated that it was pursuant to the interim order passed by this Court that the passports of the children, resident cards and their medical allowance cards were handed over to the 5th respondent and the matter was directed to be considered by the Family Court in the Original Petition. It is submitted that it was with the full knowledge and permission of the Family Court that the children were taken by the 4th respondent to Muscat. It is stated that the children are staying peacefully with the 4th respondent at Muscat and that they are under no illegal detention whatsoever.

The 7th respondent has filed an impleading petition seeking to get himself impleaded as a party to the writ petition. It is contended that there are allegations raised against the Congregation of Emperor Emmanuel Church in the counter affidavit filed by respondents 4 and 5 and therefore, the 7th respondent is to be impleaded in the writ petition and his contentions have also to be considered.

Having considered the contentions advanced, we notice that the only question that requires a consideration is whether the children are under illegal detention by the 4th respondent. It is evident from the materials placed on record that it was pursuant to the orders of the Family Court in Ext.P2, as confirmed in Ext.P3, that the passports and the related documents  of  the  children  were  handed  over  to  the  5th respondent, who is the mother of the petitioner.

The 5th respondent has sworn to an affidavit that the children were studying in Muscat and that in the best interests of the children, it was highly necessary that they may be permitted to accompany the 4th respondent, who is their father to Oman and that they had proceeded to Oman on their own free will and volition. Ext.R5(k) judgment of a Division Bench of this Court, to which, one of us (C. Jayachandran, J.) was a party, was also placed on record to contend that this Court had interacted with the children and had ascertained their wish to accompany the 4th respondent. A reading of the said judgment has convinced us without any element of doubt that the children were not taken away forcibly by the 4th respondent as contended in the writ petition and that the question is only with regard to custody and visitorial rights to the children and does not involve any illegal detention or forceful taking away of the children by the 4th respondent.

In the above view of the matter, we are of the opinion that the W.P.(Crl.) is not maintainable since there is no illegal restraint or detention of the children by their father. However, we make it clear that all we have stated above is only for a consideration of this writ petition and will have absolutely no bearing on the consideration of the matter by the Family Court which shall proceed strictly in accordance with the materials and the evidence on record and after ascertaining the wishes and looking into the best interests of the children from time to time.

This writ petition is ordered accordingly.