Deepa vs The State of Kerala and Others

Pius C. Kuriakose, J.—The petitioner who is the wife of 5th respondent has filed this petition seeking a writ of habeas corpus directing respondents 2 to 4, police officers to trace out and produce the body of her minor son ''Abhinand'' aged 2= years allegedly under the illegal detention of 5th respondent, her husband, father of the child. This court on considering the pleadings and hearing the parties referred the case to the Mediation Centre and the parties arrived at an interim settlement regarding the custody of the child during Onam vacation. Mediator, Sri. P.M. Mohammad Shiraz produced the interim settlement agreement along with his interim report. The interim settlement agreement is as follows:

(a) The child Abhinand will be handed over by the 5th respondent Suvarnan to petitioner''s mother, Renuka immediately.

(b) The child will be brought for medical consideration to Devi clinic, Vadakanthara at 10.00 A.M. on 28.8.2012 and the necessary medicines will be purchased by the 5th respondent and handed over to the petitioner.

(c) The child will be with the mother and grand mother till 6.00 P.M. on 30.8.2012. The child will be handed over to the 5th respondent at 6.00 p.m. on 30.8.2012.

(d) The child will be produced before this Honourable Court by 5th respondent at 1.45 p.m. on 3.9.2012.

After hearing the parties further, this Court on 27.8.2012 passed the following order and directed the parties to be present before the Mediation Centre today (3.9.2012 at 11 a.m.) along with the child.

The fifth respondent has filed counter affidavit in the above writ petition.

In the light of the order passed by this Court in the morning today, the parties and their counsel appeared in the Mediation Centre based upon which an interim settlement was arrived and for further proceedings towards the mediation, the matter stood posted to 3.9.2012. From the conduct of the parties, especially in the light of the interim settlement arrived during the mediation, we are of the view that there is every possibility for settlement. Therefore, proceedings in the above writ petition can be adjourned to 3.9.2012 at 1.45 p.m. in the court. Accordingly, the parties are directed to be present in the Mediation Centre at 11 a.m. on 3.9.2012 with the child.

Both the sides as well as Sri. P.M. Mohammad Shiraz, the Mediator submitted before us that the mediation failed. Under the above circumstances the only question to be considered is whether the relief sought for in the writ petition should be granted. As for reliefs A and B which are

(A) Issue a writ of habeas corpus directing the respondents 2 to 4 to produce the body of the detenue by name ''Abhinand, aged 2 years after tracing him out from the illegal detention of the 5th respondent and (B) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 to 4 to register a crime against the 5th respondent under ''child missing'' and take appropriate action against the 5th respondent so as to avoid further unhappenings in the matter.

we are of the view that it is not necessary to grant those reliefs as the child is before this Court and was entrusted to its mother pursuant to the interim settlement agreement.

It is submitted by the learned counsel for the 5th respondent that the 5th respondent has already filed O.P. No. 929 of 2012 before the Family Court, Palakkad seeking a divorce of his marriage with the petitioner. We interacted with the petitioner, her mother and also with the 5th respondent in detail. Petitioner insisted that custody of the child who is only 2 = years old should be given to her. 5th respondent told us that the it will be unsafe to entrust the custody of the child with the petitioner as she has a tendency to commit suicide. According to him one such attempt by the petitioner to commit suicide after killing the child was sighted by him. Hence, according to him, it will be most unsafe to leave the custody of the child with the petitioner, the mother. Interactions which we had with the petitioner and her mother however have given us the feeling that the apprehensions expressed by the 5th respondent are not well founded. The 5th respondent and her mother assured us that the child will be safe with the petitioner. Under these circumstances, we feel that in the interest of the child''s welfare the custody of the child which is only 2 = years old should be allowed to be along with its mother, the petitioner. We permit the petitioner to retain custody of the child until otherwise ordered by the Family Court, Palakkad. The petitioner is free to initiate proceedings before the Family Court to have regular custody of the child and seek interim orders in such proceedings. Till then the 5th respondent shall not disturb or attempt to disturb the custody of the child which is given to the petitioner by this order. The 5th respondent, husband is given the right to visit the child in the house of the petitioner everyday between 5 p.m. and 6.30 p.m. till the Family Court passes orders regarding the custody in the proceedings which may be initiated in that regard by the 5th respondent.