Kerala High Court
Jumaila vs Abdul Gafoor on 13 April, 2012
Author: K. Surendra Mohan
Bench: R.Basant, K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
FRIDAY, THE 13TH DAY OF APRIL 2012/24TH CHAITHRA 1934
WP(Crl.).No. 345 of 2010 (S)
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PETITIONER :
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JUMAILA,AGED 29 YEARS,D/O.ABOOBACKER
(LATE),MADHURAKKARIYAN HOUSE,THOTTINTAKKARE
PALATHINKAL PO,MAMPAD , PIN 676 542
NILAMBUR TALUK, MALAPPURAM DISTRICT.
BY ADV. SRI.P.SAMSUDIN
RESPONDENT(S):
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1. ABDUL GAFOOR ,AGED 36 YEARS,
S/O.MOHAMMED KURIKKAL(LATE),PUNNAPPALA HOUSE
CHEMBAMKADAVU PO, MAMPAD NILAMBUR TALUK,NOW
RESIDING AT 17033-21484,IROWA-JEDDAH,SOUDI ARABIA
(HOLDER OF INDIAN PASSPORT NO.A 8865584).
2. SAFIYA ERANJIKKAL,W/O.MOHAMMED KURIKKAL,
PUNNAPPALA HOUSE,CHEMBAMKADAVU,THOTTINTAKKARE
MAMPAD PO,NILAMBUR TALUK,PIN 676 542.
3. THE CONSULATE GENERAL FOR INDIA,INDIAN
EMBASSY,JEDDAH,SAUDI ARABIA.
4. UNION OF INDIA REPRESENTED BY THE
SECRETARY TO GOVERNMENT, MINISTRY OF EXTERNAL
AFFAIRS,NEW DELHI.
5. THE STATE OF KERALA REPRESENTED BY THE
CIRCLE INSPECTOR OF POLICE,NILAMBUR.
BY ADV. SHRI E.S.ASHRAF, CGC
R3 & 4 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R2 BY ADV. SRI.K.ABDUL JAWAD
R5 BY ASAF ALI, STATE PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 9-02-2012, THE COURT ON 13-4-2012 DELIVERED THE
FOLLOWING:
APPENDIX
EXT.P1: A TRUE COPY OF THE ORDER OF THE FAMILY COURT,
MALAPPURAM DT. 6-1-2009 IN O.P.522/2008
EXT.P2: -DO- OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT DT. 6-7-2008
EXT.P3: -DO- OF THE ORDER OF THE FAMILY COURT, MALAPPURAM DT.
15-7-22009 IN O.P150/2009
JJ /TRUE COPY/
P.S. TO JUDGE
CR
R.BASANT &
K. SURENDRA MOHAN, JJ.
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W.P(Crl) NO:345 OF 2010 S
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Dated this the 13th April, 2012.
JUDGMENT
Surendra Mohan, J.
The travails of a discarded wife to secure the custody of her two male children from her husband who has forcibly taken them away and across the borders of our country to Jeddah in Saudi Arabia form the subject matter of this writ petition. The Family Court, Malappuram, has decided that the wife should have the custody of her children. Warrants of arrest have been issued by competent criminal courts against the first respondent. His passport has been impounded but, the efforts to deport him to our country have failed, at least for the moment, for the reason that he enjoys the patronage of an obliging employer at Saudi Arabia.
2. The petitioner, Jumaila is the mother of Mohammed Salman aged 12 years and Murad aged 4 = years. She has filed this writ petition seeking the issue of a writ of Habeas Corpus directing respondents 2 to 4 to produce her minor children from the illegal custody of the first respondent. The first respondent, W.P(Crl.)345/2010 2 Mr. Abdul Gafoor is the father of the children. The second respondent is his mother.
3. The marriage between the petitioner and the first respondent took place on 3-4-1996 according to Islamic rites. Thereafter, the spouses lived together. The two children referred to above were born out of the wedlock. According to the petitioner, respondents 1 and 2 along with Smt. Fousiya, sister of the first respondent used to harass the petitioner demanding gold and dowry. She was also blamed for not being pretty. The first respondent was working at Jeddah in Saudi Arabia. Therefore, during May 2007 the petitioner and the children were taken to Jeddah. It is the allegation of the petitioner that even at Jeddah the first respondent used to manhandle and harass the petitioner, at the instance of his mother and sister. According to her, after consuming alcohol the first respondent used to assault her brutally. When the torture became intolerable, at the intervention of the officials of the Indian Embassy at Jeddah, the petitioner and the children were sent back to India during October, 2007. After reaching India the petitioner complained to the Police and on the basis of her complaint, the Police registered crime No:345/2008 under W.P(Crl.)345/2010 3 Section 498A of the Indian Penal Code against respondents 1 and 2 and Smt. Fousiya mentioned above. The case against the first respondent/husband is still pending before the Judicial Magistrate's Court, Nilambur.
4. After the petitioner came back to India as stated above, the first respondent totally neglected her and her children. He did not pay them any maintenance. Therefore, the petitioner and the children were left at the mercy of her relatives. To cap it all, in the year 2008, the first respondent married another woman with whom he started living at Jeddah. The petitioner thereupon filed O.P.522/2008 before the Family Court, Malappuram claiming an amount of `50,000/- that belonged to her, that was misappropriated by him. She also claimed past maintenance over a period of seven months for herself and her children. The said petition was allowed by Ext.P1 judgment directing that an amount of `44,000/- be paid as past maintenance and decreeing the claim of the petitioner for recovery of the amount of `50,000/-. The petitioner had also filed MC 448/2008 under section 125 of the Code of Criminal Procedure claiming maintenance from the first respondent. The said petition has also been allowed directing the first respondent to pay an W.P(Crl.)345/2010 4 amount of `2,250/- to the petitioner. After coming back to India, the children were studying at the MES Lower Primary School, Mampad.
5. While so, on 4-7-2008, respondents 1 and 2 along with Fousiya forcibly took away the children from the MES Lower Primary School, Mampad without the permission of the petitioner and the first respondent took them to Jeddah without even informing the petitioner. The children are now in the custody of the first respondent and his second wife at Jeddah. The petitioner has not seen her children thereafter. Though the petitioner attempted to contact the children over telephone, she could not contact them due to the intervention of the first respondent and his wife. The petitioner apprehends that the separation of the children from her would result in loss of the intimacy that the children had with her. The petitioner is in a depressed state of mind due to the loss of her children. According to the petitioner, she has come know from her cousins working in Saudi Arabia that the children were not being looked after well, by their step mother, that they are discarded and unattended and that due to the lack of motherly care and attention they are not doing well in their studies. It is the W.P(Crl.)345/2010 5 contention of the petitioner that the custody of the children with the first respondent and his second wife is not at all beneficial to the children. Though the petitioner had submitted a representation to the office of the third respondent, no action was taken on the said petition. The said petition is Ext.P2. The petitioner then approached this Court by filing WP(Crl)23/2009. However, this Court relegated her to the Family Court.
6. The petitioner thereafter filed OP.150/2009 before the Family Court, Malappuram under Section 25 of the Guardian and Wards Act for necessary reliefs. Though the first respondent had appeared in the said case initially, through his power of attorney holder, he subsequently remained absent. Therefore, the first respondent was set ex parte and O.P.15/2009 was allowed as per Ext.P3 order on 15-7-2009. According to the petitioner, though the first respondent is aware of Ext.P3 order, he has not handed over custody of the children to the petitioner. Since the first respondent and the children are in Jeddah in Saudi Arabia, the petitioner has no means of executing the orders of the Family Court. The children are under illegal custody in view of Ext.P3 order, and therefore, the petitioner has approached this Court by filing the above writ petition.
W.P(Crl.)345/2010 6
7. This writ petition was admitted on 2-9-2010. Notice was ordered to respondents 1 to 4 by speed post. On 22-9-2010, respondents 1 and 2 entered appearance. Vakalath was filed on behalf of the second respondent. The counsel sought time for filing vakalath on behalf of the first respondent. The case was thereupon posted for the objections of respondents 1 and 2 to 4-10-2010. On 4-10-2010 the counsel for respondents 1 and 2 submitted that the second respondent had filed a counter statement wherein the contentions of both respondents 1 and 2 were set out. The counsel submitted that though he was continuing to appear for the second respondent, he had not been able to secure a vakalath of the first respondent and to file the same before this Court in time. On his request, further time was granted and the case was posted to 18-10-2010.
8. Meanwhile a statement was filed on behalf of respondents 3 and 4 on 22-9-2010 wherein it has been stated that there was marital discord between the first respondent and the petitioner during their stay at Jeddah and that they had approached the Consulate General in October 2007 for intervention and further that it was with the help of the Consulate that they had gone to India to settle their family W.P(Crl.)345/2010 7 disputes. It is also stated in the said statement that the first respondent had produced a receipt for payment of `44,892/- towards maintenance of the petitioner. According to respondents 3 and 4, the first respondent had produced the children before the Consulate whenever he was asked to do so. On enquiry, the children had said that they were happy with their father. The Consulate General of India had also arranged telephone call facilities to the petitioner and the petitioner had spoken to her children over the phone in the Consulate on several occasions. The first respondent had given another telephone number over which, according to him the petitioner could contact the children after 2 p.m on any day. With respect to the prayer for producing the minor children what is stated is that since the first respondent who is the sponsor of the children was not willing, the children could not be sent without the permission of the sponsor. Though the Consulate had asked the first respondent to go to India and settle the matrimonial disputes he had informed the Consulate that the children were attending School, which would be disrupted, that he had his family at Jeddah and that his sponsor was not giving him vacation. Any how, he assured that he would try to go to India as W.P(Crl.)345/2010 8 early as possible. He also informed the Consulate that he had engaged a counsel to plead on his behalf before this Court.
9. The second respondent filed a counter affidavit on behalf of both respondents 1 and 2 on 4-10-2010 wherein, after denying the allegations in the writ petition, she has stated that the children are living happily with the first respondent at Jeddah. It is her contention that the children being in the custody of their father are not under illegal detention. According to her, the first respondent is initiating action to set aside Ext.P3 order passed ex parte. She has further stated that the first respondent is a law abiding citizen, who respects the orders of this Court and that he is not able to appear in Court only because his sponsor was not permitting him to leave the country for the reason that, he has not discharged a financial liability that he owed to his employer.
10. In spite of the stand adopted by the second respondent in her counter affidavit on 4-10-2010 the counsel for respondents 1 and 2 sought two days time to apprise the court of the precise date on which the children shall be produced before this Court or the Family Court. Thereupon, this Court passed an order to the effect that the children were expected to be produced before W.P(Crl.)345/2010 9 this Court or the Family Court within a period of ten days. Thereafter, the case was posted to 20-10-2010. On the said date, the counsel for respondents 1 and 2 submitted in Court that he was constrained to report no instructions from respondents 1 and 2. The children were also not produced. This Court noted that the children were being kept away from the jurisdiction of this Court. However, as a matter of indulgence, time was granted to respondents 1 and 2 to produce the children, upto 27-10-2010. It was also ordered that if the children were not produced, appropriate further directions would be issued after hearing the submissions of the learned Govt. Pleader and the Assistant Solicitor General of India on behalf of respondents 3 and 4. On 27-10-2010, the learned Govt. Pleader sought time to file a statement on behalf of the fifth respondent and therefore, the matter was posted to 3-11-2010. On 3-11-2010, this Court noted that the children were not produced and also took note of the submission of the learned counsel for respondents 1 and 2 that the children were still at Saudi Arabia. Time was granted as a last chance for the statement of the Police and the matter was posted to 8-11-2010.
11. A detailed order was passed by us on 8-11-2010, W.P(Crl.)345/2010 10 noticing the plight of the petitioner and narrating the proceedings initiated by her one after another to secure the custody of her children. Since she could not get any relief in spite of positive directions issued by the Family Court as well as initiation of criminal proceedings, she had approached this Court with the present petition invoking the extraordinary constitutional jurisdiction of this Court under Art.226 of the Constitution. We also noted the conduct of the counsel for respondents 1 and 2 in submitting before court that he was appearing for respondents 1 and 2 and after we had acted on his submissions, believing that it was the submission of a responsible counsel, he had conveniently back tracked and reported no instructions from his clients, when we issued an order directing production of the children before this Court. Respondents 3 and 4 as well as the fifth respondent were also not able to furnish details of the action taken by them. Therefore, we issued peremptory directions to all the authorities. The order being a lengthy one, the relevant portion thereof is extracted hereunder:-
"6. Notice was ordered to all the respondents. Respondents 1 and 2 appeared before Court. But, later the counsel conveniently W.P(Crl.)345/2010 11 reported no instructions when this Court issued certain directions to them to produce the children before Court. The fifth respondent has not furnished to the Court the details of the action taken by the State of Kerala to secure the presence of the first respondent as accused in Crime No: 345/2008 of Nilambur Police Station. We have also not been apprised of the fate or action taken in Crime No: 345/2008 of Nilambur Police Station.
7. We have no hesitation to opine that the inability of the petitioner to secure custody of her children in spite of the proceedings initiated by her is a shame on the system and amounts to the negation of the concept of rule of law. If this Court cannot wipe her tears invoking the jurisdiction under Art.226 of the Constitution of India the jurisdiction will be reduced to absolute emptiness. Respondents 3 and 4 are represented by the Central Government Standing Counsel. Fifth respondent is also represented by the learned Govt. Pleader. We have not been apprised of the fate of proceedings initiated in Crime No:
345/2008 of Nilambur Police Station where we are assured that the presence of the first respondent has not been secured so far and he is an absconding accused.
W.P(Crl.)345/2010 12
8. We do think that peremptory directions must be issued in the matter to respondents 3 to 5 to secure the presence of the first respondent and two minor children of the petitioner before this Court at the earliest. It is a slur on the Constitution and the concept of rule of law that the Courts have not been able to give the petitioner the relief which she richly deserves.
9. We want the learned Asst.Solicitor General of India and the learned Director General of Prosecutions to appear before us on behalf of respondents 3,4 and 5. We want them to explain why the presence of the children has not been assured before this Court in spite of the specific directions issued. We want to know why fifth respondent is not taking necessary interest to procure the presence of the first respondent, an absconding accused in Crime No: 345/2008 of Nilambur Police Station. The learned Govt.
Pleader on behalf of the fifth respondent submits that the State of Kerala has been attempting through its Police officers to contact the first respondent and request/direct him to produce the children before the Court. But first respondent has not done the same so far. We do not expect the fifth respondent to merely request the first respondent humbly to make the children available. Effective action must be taken by respondent No:5 W.P(Crl.)345/2010 13 to ensure that the absconding accused is brought to law and his presence is assured to the Criminal Court, when such presence is required. At any rate, we expect respondents 3,4 and 5 to take necessary action to ensure that the children are produced before Court on the next date of posting. Call this petition again on 15/11/2010. We want the learned DGP and the learned ASGI to appear before this Court and file necessary statements to explain to the Court the steps taken to secure the presence of the first respondent and the children before Courts.
10. We need not specifically mention that it must certainly be within the legal jurisdiction and competence of respondents 3 and 4 to impound the passport of the first respondent, an absconding accused and the two minor children who have been kept away from the jurisdiction of the Courts in India and get them repatriated to India to facilitate completion of proceedings against them.
11. We need only mention that all necessary steps must be taken by respondents 3 to 5 and the learned DGP and the ASGI must file statements on 15/11/2010 to apprise the Court of the steps taken."
12. On 15-11-2010 when the case was called, respondents 1 and 2 entered appearance through a fresh counsel and prayed W.P(Crl.)345/2010 14 for three days time to report to this Court the date on which the children shall be made available to this Court. We noted that the children were not made available on the said date also. However, copies of the statements filed by the Director General of Prosecutions and the learned Assistant Solicitor General of India were directed to be furnished to the counsel for the petitioner and the case was posted to 23-11-2010. In the above circumstances, on 23-11-2010 the counsel for respondents 1 and 2 submitted that respondents 1 and 2 shall ensure the presence of the children before this Court on 13-12-2010. According to the counsel, time was sought for the reason that the children were having their examinations till 8-12-2010. Taking a lenient view, the prayer of the counsel for respondents 1 and 2 was granted. It has also been noted in the order dated 23-11-2010 that we were accepting the undertaking that the children shall be produced on 13-12-2010.
13. In the above circumstances, the case was again posted to 14-12-2010. However, the children were not produced. Faced with the above situation, we passed the following detailed order:-
"This order must be read in continuation of the earlier orders passed by this Court in the W.P(Crl.)345/2010 15 matter, particularly the order dated 8/11/10 passed by us. Subsequently the case was posted to 15/11/10 and 23/11/10. Respondents 1 and 2 had entered appearance before this Court. They were represented by a fresh counsel. On 15/11/10 and 23/11/10 it was undertaken before this Court by respondents 1 and 2 that they shall ensure that the children are produced before this Court. Accordingly, the matter was posted to 13/12/10.
2. On 13/12/10, respondents 1 and 2 unashamedly stated before this Court through their counsel that they are not able to produce the children. This Court is disturbed by the manner in which respondents 1 and 2 have attempted to take this Court for a ride. This Court had acted on their undertaking and further steps were not directed on 15/11/10 and 23/11/10 when the matter came up for hearing only on the basis of the solemn undertaking given by respondents 1 and 2 through their counsel before this Court.
3. We have adverted to the facts in detail in the earlier order dated 8/11/10. This Court is to appreciate the plight of the helpless petitioner. This Court must take note of the machinations of respondents 1 and 2 who have defied the law and the concept of rule of law by their unjustified conduct. There has been a violation of undertaking. We hence direct that that notice be W.P(Crl.)345/2010 16 issued to respondents 1 and 2 to show cause as to why proceedings in contempt should not be initiated against respondents 1 and 2. Counsel for respondents 1 and 2 take notice. Statement shall be filed by respondents 1 and 2 who shall personally appear before this Court on the next date of posting i.e.., 23/12/10 to explain why proceedings in contempt should not be initiated against them for having violated the undertaking given before this Court.
4. The more important duty of this Court is to secure the presence of the two minor children of the petitioner. The learned Government Pleader submits that the State police has taken all necessary steps to secure the presence of the 1st respondent. Respondents 3 and 4 are represented by the learned Assistant Solicitor General of India. The learned Assistant Solicitor General of India submits that as the 1st respondent had undertaken to produce the children before this Court on 13/12/10 and this Court had given them time to produce the children, the 3rd respondent had bona fide released the passports of the children and the 1st respondent to the 1st respondent to facilitate production of the children before this Court. Thus, the 1st respondent is now in possession of the passports of himself and the children. Because of what transpired after 15/11/10, respondents 3 and W.P(Crl.)345/2010 17 4 have not taken any steps to impound the passport and to move the authorities concerned for cancellation of the Visa. They shall do the needful now, if so directed by this Court, submits the learned Assistant Solicitor General of India.
5. We should not lose sight of all the relevant facts. The 1st respondent is an absconding accused. He is a fugitive. His presence is required before the criminal courts in India. He faces prosecution in one case. We are satisfied that his passport must be impounded forthwith. We direct respondents 3 and 4 to ensure that necessary steps are taken to impound the passport of the 1st respondent and ensure that the 1st respondent and the children are brought back to India at the earliest - at any rate, prior to 23/12/10.
6. Call this petition again on 23/12/10. We command respondents 3 and 4 to ensure that the 1st respondent and the two children - Mohammed Salman, aged 12 years and Murad, aged 4 = years, are produced before this Court on that date.
7. Hand over a copy of this order to the learned Assistant Solicitor General of India."
14. The case again came up before Court on 23-12-2010. On the said date, the second respondent was present in person. Respondents 1 and 2 were represented through counsel. The W.P(Crl.)345/2010 18 counsel submitted that respondents 1 and 2 were still unable to secure the presence of the children before Court. The learned Govt. Pleader submitted on behalf of the fifth respondent that necessary steps were being taken to get the first respondent extradited to India since he was an absconding accused in a case registered under Section 498A of the Indian Penal Code pending before a criminal court. On behalf of respondents 3 and 4, the Assistant Solicitor General of India submitted that the third respondent had instructed the first respondent to appear in Court on 23-12-2010 failing which steps would be taken to impound his passport. In view of the soft attitude adopted by respondents 3 and 4 towards the first respondent, this Court noted its impression that the third respondent was also hand in glove with the first respondent in his efforts to avoid the process of Court. Since the order dated 23-12-2010 also contained peremptory directions, the same is extracted hereunder:-
" This order must be read in continuation of the earlier order passed by this Court resting with the order dated 14.12.2010. Today when the case is called, respondent No.2 is present. The second respondent has filed an affidavit. Respondents 1 and 2 are represented by their counsel . Counsel for respondents 1 and 2 W.P(Crl.)345/2010 19 submits that respondents 1 and 2 are still unable to secure the presence of the children before this Court in spite of the specific directions issued earlier. The learned Government Pleader on behalf of the fifth respondent submits that all necessary steps are being taken to get extradition of respondent No.1 who is required as an absconding accused in a pending case registered under Section 498A IPC before the criminal court. Respondents 3 and 4 are represented by the learned ASGI. Surprisingly, respondents 3 and 4 have not taken any steps to impound the passport of the first respondent and to get him deported into India. On behalf of respondents 3 and 4 , the learned ASGI submits that a statement has been filed by respondents 3 and 4. The children are available in Saudi Arabia. The children can come to India. So far as the first respondent is concerned, respondents 3 and 4 take the interesting stand that inasmuch as the employer of the first respondent is not relieving the first respondent on the plea that amounts are due from him to the employer, respondents 3 and 4 have not been able to ensure his presence before the court today. However, the learned ASGI submits that respondent No.3 has instructed respondent No.1 to appear before this court today and W.P(Crl.)345/2010 20 failing that steps shall be taken to impound the passport of the first respondent. We had very definitely directed respondents 3 and 4 to impound the passport and ensure extradition/deporting of the first respondent. The impression is irresistible that respondent No.3 is also hand in glove with the first respondent and is helping him to avoid the process of the court. Otherwise we fail to understand why steps have not been taken to impound the passport and to get his visa cancelled in which case he will be obliged to come to India.
2. We do however accept the statement of the learned ASGI that inasmuch as the first respondent has not appeared before the court today, steps shall be taken immediately to get his passport impounded and get him extradited/deported into India in accordance with law by the next date of posting, i.e. on 5.01.2011. The fifth respondent must also take all necessary steps to get the first respondent extradited.
3. On 5.01.2011, we want respondent Nos.3 and 4 to positively inform the court that the passport of the first respondent has been impounded and that steps have been taken to get visa of the first respondent cancelled. W.P(Crl.)345/2010 21
4. The learned counsel for the first respondent submits that the children can be sent over to India. He is willing to hand over the children to the third respondent, it is submitted. He will also arrange to purchase the tickets for transportation of the children to India at his expense. He shall entrust the children along with the tickets to the third respondent. While proceedings for impounding the passport and cancellation of the visa of the first respondent must continue, we direct the third respondent to ensure that the children are sent to India before 5.01.2011.
5. Call this petition again on 5.01.2011 . By that day, we expect the third respondent to get the passport of the first respondent impounded and his visa cancelled. The third respondent must take necessary steps to get the first respondent extradited/deported to India by that date. At any rate, the third respondent must ensure that the children of the first respondent are transported to India before the next date of posting , i.e. 5.01.2011.
The second respondent is present. We direct her to appear in person on 5.01.2011. The matter shall be reckoned as part heard. Furnish copies of the order to the learned ASGI and the learned Government Pleader forthwith." W.P(Crl.)345/2010 22
15. On 6-1-2011 though the case was posted for production of the children, they were not produced. However, all concerned offered to bring the children to India if some more time were granted. The second respondent even offered to go to Saudi Arabia to bring back the children. The order dated 6-1-2011 is also reproduced hereunder:-
"The petitioner is represented by his counsel. Respondents 1 and 2 are represented by their counsel. The 2nd respondent is personally present also. On behalf of respondents 3 and 4 a statement has been filed to apprise the Court of the steps taken by him to ensure the production of the minor children before this Court today. That statement is filed on behalf of respondents 3 and 4 by the Central Government counsel. Various steps have been enumerated in detail. The circumstances under which respondents 3 and 4 could not assure the presence of the children before Court today have been explained. We have heard the learned ASGI. We accept the request of the learned ASGI for some further time to enable respondents 3 and 4 to assure presence of the children before this Court. The learned counsel for respondents 1 and 2 submits that respondents 1 and 2 are also W.P(Crl.)345/2010 23 taking all efforts to ensure that the children are produced before this Court. The statement filed on behalf of respondents 3 and 4 reveals that the passport has already been impounded and necessary action has been taken in furtherance of such impounding of passport. This Court is further apprised that respondents 3 and 4 are taking necessary steps to get the visa issued in favour of the 1st respondent cancelled. The learned counsel for the 2nd respondent submits that if some time is given, the 2nd respondent shall herself attempt to proceed to Saudi Arabia and bring back the children. We need only mention that the 2nd respondent, against whom contempt proceedings have already been initiated, must show her bona fides by complying with that submission.
2. Call this petition again on 19.01.2011. By that day, we expect respondents 3 and 4 to ensure that the children are produced before this Court. We expect the 2nd respondent, against whom contempt proceedings are contemplated, to show her bona fides by abiding her submissions that she shall proceed to Saudi Arabia and bring back the children personally to the Court.
W.P(Crl.)345/2010 24
3. We further direct the 3rd respondent to file a detailed affidavit explaining to the Court the steps taken by it to comply with the order of this Court."
16. In the above circumstances, the second respondent filed a petition for Special Leave to Appeal (Crl.) No: 48/2011 challenging the order dated 23-12-2010 passed by us directing that the passport of the first respondent be impounded. However, the Honourable Supreme Court dismissed the said petition, as per the following order:-
"Taken on Board.
We are not inclined to interfere in this matter. In case respondent No:2 produces the children within two weeks before the High Court, the High Court may reconsider the impugned order.
In the meanwhile the operation of the impugned order is stayed for two weeks.
The special leave petition is dismissed."
Thus, at the instance of the second respondent, the proceedings remained stayed for two weeks. Though the matter was posted on 19-1-2011 thereafter, since the Indian Embassy at Saudi Arabia was not able to function due to floods, the third respondent pleaded for time. On behalf of the third respondent, though a counter affidavit was filed, it was noticed that the same W.P(Crl.)345/2010 25 was sworn to by one S.D.Moorthy who was not the third respondent. The Court was informed that the passport of the first respondent had been revoked by the Consulate General and that his visa had to be cancelled at the instance of his employer. This Court ordered the third respondent to personally file an affidavit as per order dated 28-1-2011.
17. On 31-1-2011, though time was granted to the third respondent for production of the children, they were not produced. On 1-2-2011 the third respondent again prayed for time. The Court granted time and also wanted to be apprised of the steps taken by the fifth respondent to secure the presence of the first respondent and the children before Court. Though the Director General of Police filed a statement pursuant to the above order, the children were still not available. The employer had been addressed to provide an exit permit to the first respondent to leave the country. Finally, on 15-2-2011, the third respondent personally filed an affidavit informing the court that the passport of the petitioner had been revoked, that the Consulate had requested the Saudi Foreign office to render assistance and that the employer had also been approached in an effort to comply with the orders of this Court. W.P(Crl.)345/2010 26
18. On 11-3-2011 counsel for respondents 1 and 2 produced copy of the visa and tickets of the children and submitted that though they had taken all steps to bring the children to India, they could not be brought for the reason that they had taken an adamant stand and had refused to come to India without the first respondent. On 4-4-2011, the Director General of Police filed an affidavit informing the Court that proceedings under Sections 82 and 83 of the Code of Civil Procedure had been initiated against the first respondent by the Judicial First Class Magistrate's Court, Nilambur in the case instituted against him for an offence under Section 498A IPC. The Assistant Solicitor General of India filed a statement that the Consulate General of India in Jeddah had met the Director General of local foreign office twice and had impressed upon him the seriousness of the matter and requested for their assistance to deport the first respondent and the minor children to India. However, it was understood from the authorities that they could not force a private company to deport an employee when the said employee has financial obligations to the company.
19. Meanwhile, the Court was informed that the second respondent had undertaken a trip to Jeddah during the court W.P(Crl.)345/2010 27 vacations in an attempt to bring the children back to India. Since she was not able to return, time was granted for her appearance. In the above circumstances on 6-6-2011 the counsel for the second respondent informed the court that the second respondent had already conveyed to him, her inability to bring back the children. The counsel also filed a memo dated 21-6-2011 reporting that he had no instructions from the first respondent and relinquished his vakalath. On 28-6-2011 it was submitted on behalf of the fifth respondent that the crime registered against respondents 1 and 2 under Section 498A read with Section 34 IPC had been charge sheeted and taken on file by the Judicial First Class Magistrates Court, Nilambur as C.C.No: 321/2008 and that after trial the co-accused had all been acquitted. The trial was conducted after splitting up the charge against the first respondent. A warrant has thereafter been issued against the first respondent. On the request of the Circle Inspector of Police, steps under Sections 82 and 83 of the Code of Criminal Procedure were initiated against the first respondent and proclamation was also issued. Regarding the complaint of the petitioner that related to the forcible taking away of her children, though a crime had been registered, the same had W.P(Crl.)345/2010 28 been referred as mistake of fact. Therefore, she preferred a protest complaint against the same. On 28-6-2011, the learned Assistant Solicitor General was directed to ascertain whether an extradition treaty was in existence between India and Saudi Arabia and to inform the court as to what action had been taken under the said treaty if such a treaty was in existence.
20. Though the above developments were all taking place, there was no prospect of the children being produced before us. Neither the parties before us nor the respective counsel were able to offer any indication as to when the children could be produced. Though we had issued peremptory directions and also initiated action in contempt against the respondents 1 and 2, a solution for the cardinal problem of securing the presence of the children before us was still eluding us. The counsel for the petitioner was reminding us of the agony of the petitioner, a helpless mother who has been deprived of her children. Since the situation before us was unique in many respects and required a dispassionate approach and analysis as well, we appointed Shri. S.Sreekumar, senior Advocate as amicus curae to assist us. The matter was thereafter posted for hearing. All the parties were directed to file any further affidavits that may W.P(Crl.)345/2010 29 be necessary. Thereafter, the matter was heard.
21. A number of statements and affidavits have been filed on behalf of the respondents in this case, at various stages of the proceedings. The statements and affidavits filed on behalf of respondents 1 and 2 clearly evidence their shifting stands. The various steps taken and action initiated by respondents 3 to 5 are evident from their statements. The statements and affidavits shall be referred to as and when reference thereto becomes necessary.
22. We have heard Adv. P.Shamsudin who appears for the petitioner, Adv. K.Abdul Jawad for the second respondent, Adv. E.S.Ashraf, Central Government counsel and Shri. P.Parameswaran Nair, Assistant Solicitor General of India for respondents 3 and 4 and Shri. T.Asaf Ali, State Public Prosecutor for the fifth respondent. Senior Advocate Shri. S.Sreekumar who was appointed as Amicus curae in this case also made his submissions in detail. We place on record our deep appreciation for the assistance rendered by the learned Amicus curae.
23. According to the counsel for the petitioner, respondents 1 and 2 were hand in glove with each other. The W.P(Crl.)345/2010 30 second respondent, an aged lady with very little education and the mother of the first respondent was only acting according to the directions of the first respondent before this Court. The first respondent is a person who has scant respect for the law, a person who has been evading the judicial process at all levels. On 22-9-2010, the second respondent has filed a counter affidavit in this case alleging that the petitioner has filed the present writ petition with ulterior motives/malicious intentions and suppressing/distorting material facts. As per the statements in the said affidavit, her son, the first respondent had come back to India in the year 2008 with the intention of taking back the petitioner and children. However, since the petitioner refused to accompany him, the first respondent had returned with his children to Jeddah. According to her, since then the children are residing with the first respondent happily and they are attending school regularly. The children are residing with their father out of their free will and wish. Therefore, the children are not under any illegal custody. Though the first respondent is aware of the above proceedings before this Court, he is not in a position to appear before this Court in person since he requires the consent of his sponsor to come down to India. W.P(Crl.)345/2010 31 He has some financial liability with the employer and therefore, his sponsor is unwilling to relieve him until he discharges the said liability. For the above reasons, it is contended that the petitioner was not entitled to any of the reliefs claimed.
24. The first respondent was adopting a similar tactic before the criminal court also. Crime 345/2008 that was registered under Section 498A IPC was split up. Since the first respondent could not be apprehended the trial was not effective and all the other accused except the first respondent were acquitted by the Judicial First Class Magistrate's Court, Nilambur. In the said case, the first and second respondents as well as their sister Fousiya had been granted bail by order dated 20-6-2008 by the Sessions Court, Manjeri. However, the first respondent did not comply with the conditions imposed by the Court for the grant of bail and therefore, a warrant is pending execution against him.
25. The first respondent has got married to another lady and has a child in her. Since he was not maintaining the petitioner, she had filed M.C.448/2008 before the Family Court under Section 125 of the Code of Criminal Procedure claiming maintenance. The petition was allowed directing the first W.P(Crl.)345/2010 32 respondent to pay maintenance to the petitioner at the rate of ` 2250/- per month. The said order is not being complied with by the first respondent. The petitioner had also filed O.P.522/2008 before the Family Court, Malappuram for the recovery of an amount of `50,000/-, being the amount misappropriated by the first respondent as well as for past maintenance. The said petition has also been allowed by the Family Court as per Ext.P1 order. According to counsel for the petitioner none of the above orders have been complied with by the first respondent. Apart from the above violations of law committed by the first respondent, he has also removed the minor children of the petitioner forcibly from the custody of the petitioner.
26. It is also contended by the counsel that the children are not being looked after well by their step mother and for the above reason, they have become backward in their studies. The petitioner has been denied the custody of her children in spite of orders issued by the competent courts. The children have also been deprived of the care, attention and love of their mother by the machinations of the first respondent. The counsel contends that the first respondent is fully aware of the above petition as well as the day to day proceedings of this Court, being apprised W.P(Crl.)345/2010 33 thereof by the second respondent. However, he has not cared to comply with the orders of this Court or to submit to the jurisdiction of this Court. The conduct of the first respondent is an affront to the authority of this Court. The second respondent who is acting at his behest has been aiding and facilitating the illegal acts of the first respondent. The shifting stands adopted by them in these proceedings betray their utter lack of sincerity to the commitments and undertakings made in Court, on their behalf. Though the second respondent had offered to travel to Saudi Arabia to bring back the children, she has done precious little to honour her commitment. Consequently, the petitioner has been left to bear the searing agony of the loss of society of her children, all alone. Therefore, she seeks the issue of necessary coercive orders to compel respondents 1 and 2 to obey the orders of the Courts and to produce the children.
27. It is contended on behalf of the second respondent that she is an unnecessary party to these proceedings. The children had gone with her son and were happily residing with him of their own free will. Though she had tried to bring them to India in obedience to the orders of this Court, she could not succeed because the children refused to accompany her to India. Her son W.P(Crl.)345/2010 34 has not been able to appear before this Court with the children because his sponsor was not willing to relieve him for the reason that, he has incurred some financial liability from his employer.
28. The Assistant Solicitor General of India submitted that all efforts have been made to secure the presence of the children before this Court but the children could not be brought because they refused to travel in the company of the embassy officials. Attempts were made to have the first respondent and his children deported to India. However, the Saudi Government was not willing. The first respondent could not be deported because the policy of the Saudi Government was not to interfere in cases where the employer was against such deportation. Since the Government of India has entered into an extradition treaty with the Saudi Government, steps have been initiated for the first respondent to be extradited to India. Action in this regard is stated to be progressing. The fifth respondent has also put forward more or less the very same contentions.
29. Senior Advocate Shri. S. Sreekumar, the learned amicus curae has taken us through the provisions of the Extradition Act, 1962. According to the counsel, respondents 3,4 and 5 are duty bound to initiate action under the provisions of W.P(Crl.)345/2010 35 the Extradition Act and to have the first respondent extradited to India. It is pointed out that there could be no difficulty in getting the first respondent extradited since there is an extradition treaty in existence between the two countries. A concerted effort on the part of respondents 3 to 5 would certainly yield the desired result, it is submitted. We have considered the rival contentions of the counsel appearing for the contesting parties, anxiously.
30. We have already adverted to and noticed the plight of the petitioner, a hapless mother and a discarded wife, who has been knocking at the doors of various courts, trying to obtain the custody of her children, through the process of law. However her efforts have not yielded any results so far. The crucial facts of the case are not in dispute. The marriage between the petitioner and the first respondent is admitted. The further fact that the two children, Mohammed Salman and Murad were born out of the wedlock is also admitted. Both the children are minors. The first respondent was working at Jeddah in Saudi Arabia. He had taken the petitioner and the children to Jeddah in May 2007. However, marital discord forced them to approach the Consulate General who intervened and the petitioner, the W.P(Crl.)345/2010 36 first respondent and the children were sent back to India in October, 2007 to settle their disputes. However, the disputes were not settled. On reaching India, the children were admitted to a local school. Meanwhile, the first respondent married another woman. The first respondent also took away the children from their school on 4-7-2008 and transported them to Saudi Arabia. The children have been remaining there ever since.
31. The petitioner had submitted Ext.P2 to the Indian Ambassador of Saudi Arabia requesting him to take action against the first respondent to hand over the custody of the children to her. According to her, there was no response to the said complaint. Meanwhile the petitioner had submitted a complaint to the Nilambur Police alleging an offence under Section 498A IPC against respondents 1 and 2 and Fousiya, sister of the first respondent. A crime was registered as Crime No:345/2008 in which the first respondent was granted bail as per order dated 20-6-2008 by the Sessions Court, Manjeri. However, the first respondent did not comply with the conditions stipulated in the said order. He also did not appear before the Judicial First Class Magistrate's Court, Nilambur in the said W.P(Crl.)345/2010 37 criminal case. Therefore, the case against him was split up, the other accused were acquitted after trial and an arrest warrant has been issued against the first respondent. The said warrant is pending execution against him.
32. The petitioner had also filed MC 448/2008 before the Family Court, Malappurm under Section 125 of the Code of Criminal Procedure claiming maintenance. In the said proceedings also the first respondent did not appear. An order has been passed by the Court in the said case directing the first respondent to pay maintenance to the petitioner at the rate of Rs.2250/- per month. It is not disputed that the said order is also not being complied with by the first respondent.
33. When the children were taken away from the custody of the petitioner, she had approached this Court by filing WP(crl) No: 23/2009. However, the same was withdrawn, without prejudice to her right to approach the Family Court. Accordingly she filed O.P(GW)150/2009 claiming custody of her children. In the said case, though the first petitioner initially appeared through his power of attorney holder, he remained absent thereafter. Therefore he was set ex parte and as per Ext.P3 W.P(Crl.)345/2010 38 order the petition was allowed directing the first respondent to hand over custody of the children to the petitioner.
34. The petitioner had earlier filed O.P522/2008 for the recovery of amounts due to her as well as past maintenance. The petition was allowed as per Ext.P1 order. The said petition was contested by the first respondent through his power of attorney who was also examined as a witness in the case. As per the said order, the petitioner was held entitled to recover an amount of `50,000/- from the first respondent with interest at the rate of 9% per annum. An amount of `44,000/- was ordered to be paid as past maintenance to her. The said order has also not been complied with by the first respondent. It is in the above background that the conduct of the first respondent in the present case requires to be considered.
35. We have already referred to the day to day proceedings of the above case The contradictory stands adopted by respondents 1 and 2 are clearly discernible from the said proceedings. The second respondent in her counter affidavit dated 22-9-2010 has stated in paragraph 1 itself that the facts of the case were known to her as instructed by the first respondent. She has denied the entire allegations made by the petitioner in W.P(Crl.)345/2010 39 this writ petition. According to her, the first respondent came back to India in the year 2008 with an intention to take back the petitioner and the children. However, she declined to return. Therefore, according to her "the first respondent had to return with his children to Jeddah......." "Since then, the children are residing with the first respondent happily and they are attending school regularly." The counter affidavit of the second respondent shows that the first respondent is fully aware of the orders passed against him by the Family Court in the various proceedings referred to above. It has also been stated that he was taking necessary steps to set aside the ex parte order passed against him. According to the second respondent, the first respondent is a law abiding citizen who has no intention at all to disregard or disrespect the orders of this Court. He has not appeared before this Court only for the reason that his employer was not permitting him to be relieved.
36. On 18-10-2010 the counsel for respondents 1 and 2, Shri. P.Venugopal sought two day's time to apprise this Court of the precise date on which the children shall be produced before this Court or if so directed, before the Family Court within a period of ten days. On the basis of the above submission, we W.P(Crl.)345/2010 40 granted time and posted the case to 20-10-2010. However, on 20-10-2010 the counsel reported that he had no instructions from respondents 1 and 2. Nevertheless, we indulgently granted time till 27-10-2010 to produce the children. It was in the above circumstances that the detailed order dated 8-11-2010 already extracted hereinabove was passed, directing that the passport of the first respondent be impounded and all efforts be taken to ensure the presence of the children before us, by the official respondents 3 to 5.
37. When the case was taken up on 23-11-2010 the learned counsel for respondents 1 and 2 submitted that the presence of the children before this Court would be ensured on 13-12-2010. The said order reads as follows:-
"The learned counsel for respondents 1 and 2 submits that respondents 1 and 2 shall ensure that the presence of the children before this Court is made available on 13-12-2010. It is submitted that the children have their examinations till 8-12-2010 and it is hence that such a request is being made. We take a lenient view. We grant the prayer for respondents 1 and 2. We accept their undertaking that the children shall be produced before this Court on 13-12-2010. Call on 13-12-2010".
W.P(Crl.)345/2010 41
38. However, on 13-12-2010, the counsel for respondents 1 and 2 submitted that they are not able to produce the children. We were disturbed and distressed at the manner in which the party respondents were conducting themselves in the above case. Therefore, we again passed a detailed order on 14-12-2010 expressing our displeasure and ordering the issue of notices to respondents 1 and 2 directing them to show cause why action in contempt should not be initiated against them for violation of the undertaking. On 23-12-2010, the second respondent filed an affidavit on behalf of respondents 1 and 2. In paragraph 4 of the said affidavit, they have stated as follows:-
"These respondents had undertaken to produce the children before this Hon'ble Court with bonafide intention and we have made all our sincere efforts to comply with the same. But the children are adamant on their stand that they will not come before this Hon'ble Court without the first respondent."
The second respondent has also narrated the efforts made by the first respondent to have the children sent to India for the purpose of being produced before this Court. The second respondent has further stated in paragraph 13 of her affidavit as follows:-
W.P(Crl.)345/2010 42
"It is further submitted that second respondent is even ready to go abroad and bring the children before the Court in order to comply undertaking."
39. Meanwhile, respondents 3 and 4 were found not to have initiated any steps to impound the passport of the first respondent. Therefore, further directions were issued to them directing them to comply with the said order. On 6-1-2011 when the case came up, respondents 1 and 2 again submitted that they were taking all efforts to ensure the presence of the children before this Court. The second respondent also submitted that if some time were given she would herself proceed to Saudi Arabia and attempt to bring back the children. We have expressed our expectation that she would abide by her submissions and fulfill her undertaking. On 1-2-2011 we were told by the Assistant Solicitor General of India that only two weeks time was required to ensure presence of the children before the Court. Therefore, time was granted. However, on 1-3-2011 we were informed by the Assistant Solicitor General that respondents 3 and 4 were not able to comply with the direction to produce the children. Though the case was again posted on various dates thereafter, on 23-5-2011 we were informed that the second respondent had undertaken a trip to Jeddah during the court W.P(Crl.)345/2010 43 vacations, in an attempt to get the children to India and that she had not returned. Therefore we again granted time. On 6-6-2011 the counsel for the second respondent informed us that it was not possible for her to bring the children to India. Though it was represented on behalf of respondents 3 and 4 that steps were in progress to get the first respondent extradited, they were not in a position to inform us or to give us any idea as to the time required for completing the said proceedings. It was in the above circumstances that we have proceeded to finally dispose of the matter.
40. It is clear from the conduct of respondents 1 and 2 that they have only been trying to protract these proceedings on one pretext or the other. Though initially the same Lawyer had appeared for both respondents 1 and 2, it was submitted by the said counsel that he had not been able to file any vakalath for the first respondent. Though the same submission was repeated by the counsel on 20-10-2010, on subsequent verification, we find that the counsel had filed his vakalath for the first respondent as early as on 22-9-2010. He has subsequently relinquished his vakalath on 21-6-2011. Thereafter, for the second respondent, there were change of vakalaths twice. Subsequently, it was W.P(Crl.)345/2010 44 submitted on behalf of respondents 1 and 2 that the children would be produced and time for the above purpose was sought. Though time was granted on a number of occasions, ultimately they retracted from their commitments. We had also been assured that the children would be produced on 13-12-2010 after the completion of their examinations on 8-12-2010. After taking time for the said reason, it was later on submitted that it was not possible to produce the children. The over all conduct of the first respondent is far from satisfactory. He has deliberately kept away from the various proceedings initiated before the criminal courts and the family courts against him. We are thoroughly dissatisfied with the conduct of respondents 1 and 2. Considering the extent of indulgence shown by us to them, respondents ought to have reciprocated by co-operating with the proceedings, if they had any respect for the Rule of Law or the legal system of our country.
41. We are aware that the children are both males. The older one, born on 13-12-1997 is now more than 13 years old. The younger son who was born on 1-6-2003 is about 9 years old. The petitioner was deprived of their custody more than three years ago. The long period of separation from their mother, W.P(Crl.)345/2010 45 during the impressionable stages of their lives would have resulted in a considerable erosion of the affection and attachment that they would have had for her. That was apparently the intention of the first respondent also. Obviously the first respondent is now waiting for them to be old enough to testify before Court that they do not want the company of their mother or to be in her custody. We do not know to what extent the minds of the children have been influenced by the first respondent and his present wife to turn them against their own mother, the petitioner. In this context, the following statement in paragraph 8 of the second respondent's affidavit dated 23-12-2010 assumes significance.
"Thereafter the first respondent made all possible efforts to convince the children about the necessity of their presence before the Court. The first respondent even produced the children before the embassy officials at least on 3 occasions to get them ready to go India. But their efforts were also went in vain and children were adamant on their stand as they were afraid of the character of the petitioner."
It appears from the above statement that the hostility of the children towards their mother has been influenced by stories W.P(Crl.)345/2010 46 about her bad character. If what respondents 3 and 4 submit are true, it appears that the attitude of the children towards their mother has undergone a drastic change over the past few years. Therefore, they are adamant that they do not want to come back to their mother. Being the mother and the natural guardian of the children the rights of the petitioner are inviolable and sacrosanct. The conduct of respondents 1 and 2 have deprived the petitioner of the fruits of her motherhood. The mandate of our Constitution that envisages special protection for women and children compel us to hold that all efforts must be made to set at naught the attempts of persons like respondents 1 and 2 to deprive a helpless mother of her children by adopting such devious methods as in the present case. We have no hesitation to conclude that the statements made in the affidavits filed by the second respondent in this case regarding the respectability of the character and conduct of the first respondent are only hollow rhetoric intended to appease us. Therefore, we are convinced that peremptory orders and directions to produce the children are necessary to be issued. In the event of non-compliance with the directions of this Court to produce the children, action in contempt shall be initiated W.P(Crl.)345/2010 47 against respondents 1 and 2 and others for non-compliance with the said direction as well as for the violation of their solemn undertaking given to this Court.
42. We remind us that the provisions of our Constitution mandates special protection to both women and children. The conduct of respondents 1 and 2 in depriving the petitioner of her children in open defiance of the lawful orders passed by the competent courts of our Country only aggravates the culpability thereof. Words are inadequate to describe the agony suffered by the petitioner, of being deprived of her children for all these years. The impressionable minds of her children have been polluted in such a manner and to such an extent that they have been persuaded to turn against their mother. Consequently, she has been robbed of even the solace of the affection of her children. Therefore, the conduct of respondents 1 and 2 requires to be viewed seriously. We are conscious of the fact that the injury suffered by the petitioner is not capable of being compensated in terms of money but money would certainly soften the severity of the injury caused to the petitioner, at least to a limited extent. In a similar situation, where a litigant was found guilty of persistent contumacious conduct, the Hon'ble W.P(Crl.)345/2010 48 Supreme Court has held that award of exemplary costs should follow as a rule. In Ila Vipin Pandya v. Smita Ambalal Patel {AIR 2007 SC 2404} the Hon'ble Supreme Court has summed up the position as follows:-
"We have advisedly given the detailed history of this litigation to emphasize that those who attempt to take court proceedings lightly or try to subvert the judicial process to their advantage, do so at their peril. The imposition of exemplary costs must, as a consequence, follow."
In tune with the above dictum, it is only appropriate that exemplary costs are awarded in this case also. We feel that award of an appropriate amount of costs is necessary also as a deterrent. Therefore, we hold that in the facts and circumstances of this case respondents 1 and 2 shall pay an amount of Rs.5 lakhs each as costs to the petitioner.
43. For the above reasons, this writ petition is allowed as follows:-
i) Respondents 1 to 4 are directed to produce the minor children of the petitioner, Mohammed Salman, aged 12 years and Murad aged 4 = years from the illegal custody of the first respondent before this Court.
W.P(Crl.)345/2010 49
ii) The children shall be produced in accordance with the above direction, as expeditiously as possible and at any rate within a period of three months from this day.
iii) In the event of non-compliance with the directions in (i) and (ii) above, action in contempt shall be initiated against respondents 1 and 2 and others, inter alia, for the violation of their solemn undertaking given to this Court as well.
iv) Respondents 1 and 2 shall pay an amount of ` 5 lakhs each to the petitioner as costs. If the amount of costs ordered to be paid is not paid within three months from this day, the fifth respondent shall recover the same from the assets of respondents 1 and 2 by initiation of Revenue Recovery proceedings against them.
v) We direct the fifth respondent State of Kerala to take all necessary steps to ensure that the first respondent is extradited to India in accordance with law.
Hand over copies of the judgment to the learned Director General of Prosecution and the learned Assistant Solicitor General of India forthwith. Call this petition again on 16th July, 2012 before the Bench dealing with Habeas Corpus Petitions for appropriate further action. Respondents 3,4 and 5 shall, if W.P(Crl.)345/2010 50 children are not produced before Court within three months, appear in person before the Court and file affidavits before Court explaining the steps taken by them to implement the directions.
Sd/-
R.BASANT Judge Sd/-
K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge W.P(Crl.)345/2010 51 W.P(Crl.)345/2010 52 W.P(Crl.)345/2010 53