Sreekumar vs State Of Kerala on 2 May, 2025

[Cites 13, Cited by 0]

Kerala High Court

Sreekumar vs State Of Kerala on 2 May, 2025

The petitioner is a Non-Resident Indian working in Saudi Arabia. He has been living in Saudi Arabia with his wife Lekshmi, a nurse working in a Hospital there, and their minor daughter Devika, aged 9, who is studying in the 5th standard at the International Indian School, Al- Jubail, Saudi Arabia.

2. Petitioner's wife Lekshmi passed away on 12.04.2025, due to a sudden cardiac arrest. On 14.04.2025, petitioner sent his daughter, Devika, to Thiruvalla - her maternal residence, along with her maternal Uncle, who is also working at Jubail, Saudi Arabia, assuming that the formalities for bringing the mortal remains of Lekshmi to her native place might take some time.

WP(Crl)No.517 of 2025

2025:KER:33514

3. On 16.04.2025, petitioner brought the body of Lekshmi to Thiruvalla, and the funeral was held on 17.04.2025 at her residence at Vallamkulam, Thiruvalla, in the presence of the petitioner, his parents, and the party respondents, who are the mother and relatives of Lekshmi, respectively.

4. The unfortunate turn of events started after the cremation. According to the petitioner, after the funeral, respondents 3 to 8 unlawfully detained the minor girl Devika and refused to allow him to take her with him. Hence Ext.P5 complaint was filed before the second respondent - SHO of Thiruvalla Police Station, to rescue the minor from illegal detention. Petitioner also filed Ext.P6 complaint on 19.04.2025 before the District Police Chief, Pathanamthitta, as evidenced by Ext.P7 receipt of acknowledgment, allegedly due to the inaction of the second respondent. On 20.04.2025, petitioner approached this Court seeking a writ of Habeas Corpus to produce the minor child before this Court.

5. Today, when the case was called at 10 a.m. in the WP(Crl)No.517 of 2025 5 2025:KER:33514 chambers, the child was produced by the party respondents before us. The petitioner, the respondents 3 and 4, along with the third respondent's sister, the learned counsel appearing for both sides and the learned Government Pleader were all present before us.

6. The respondents 3 to 8 filed a counter affidavit contending that, from the initial days of the marriage between petitioner and Lekshmi, which was solemnized on 27.03.2013, Lekshmi had been subjected to physical and mental cruelty by the petitioner after consuming alcohol. During 2017 itself, Lekshmi left her matrimonial home with the child due to the physical and mental torture, and she stayed with the third respondent, and the child was admitted to LKG and UKG at a School in Thiruvalla. Thereafter, Lekshmi initiated proceedings before the Family Court, Thiruvalla, in the year 2019, against the petitioner for divorce, but later, in 2021, considering the better interests of the child, the dispute was settled and Lekshmi and the child went to Saudi Arabia along with the petitioner. The party respondents further WP(Crl)No.517 of 2025 6 2025:KER:33514 alleged that the petitioner continued his habit of consuming alcohol as well as torturing his wife, and even the child was allegedly not spared.

7. The party respondents further contended that on 18.04.2025, petitioner attempted to take the child from the house of the third respondent after consuming alcohol, but since the child was reluctant to go with him they requested him to stay till Sanchayanam (post-funeral rituals on the 5th day of the death) is over. Howver, petitioner tried to take the child forcefully, and then the child became frightened and she cried loudly. It is further contended that the child suffered mental trauma after the said incident and she kept herself locked in the room and then the third respondent discussed the matter with a neighbour who is the District Child Protection Officer, who suggested to avail the support of a Psychologist attached to the Child Welfare Committee and accordingly on 19.04.2025 and 21.04.2025, the child was given counseling by the Psychologist of Child Welfare Committee. Pursuant to the report of the Psychologist, WP(Crl)No.517 of 2025 7 2025:KER:33514 the Station House Officer of Thiruvalla Police Station allegedly registered FIR No.1005/2025 against the petitioner for offences punishable under Section 354A(1)

(i) of the Indian Penal Code, Section 75 of the Juvenile Justice (Care and Protection of Children) Act and Sections 7, 8, 9 and 10 of the the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). According to the party respondents, in the above factual circumstances, the writ petition is liable to be dismissed.

8. We have heard the learned counsel appearing for the petitioner, the learned counsel for respondents 3 to 8, and the learned Government Pleader.

9. Section 6(a) of the Hindu Minority and Guardianship Act, 1956 declares that the natural guardian of a Hindu minor, whether it is a boy or an unmarried girl, is the father, and after him, the mother; but the custody of a minor below five years shall ordinarily be with its mother. The right of the petitioner as the sole surviving natural guardian is beyond any dispute, and the WP(Crl)No.517 of 2025 8 2025:KER:33514 party respondents also fairly conceded it. Indeed, respondents 3 to 8, who are the maternal grandmother and her relatives, have no preferential right to the custody of the child over the father, and their tentative custody over the child was not authorised by law or any authority under the law.

10. In Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others [(2019) 7 SCC 42], the Supreme Court has considered the question of entertaining a writ of Habeas Corpus when the father of the minor child has an efficacious alternative remedy available under the Hindu Minority and Guardianship Act against the in-laws of the mother. After elaborately considering the various precedents in respect of the matter, the Apex Court found that the detention of a minor by a person who is not entitled to his legal custody is to be treated as illegal detention for the purpose of issuing a writ of Habeas Corpus for restoration of the custody of the minor from a person who according to the personal law, is not his legal or natural guardian. The Court held as follows: WP(Crl)No.517 of 2025 9

2025:KER:33514 "........Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

...............

There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

11. In view of the law settled by the WP(Crl)No.517 of 2025 10 2025:KER:33514 Honourable Apex Court, there is no difficulty in holding that the petitioner is entitled to get the remedy sought for, unless the court feels that restoring the custody of the minor to the father will adversely affect the welfare of the minor. According to the party respondents, the petitioner's habit of consuming alcohol and the errant behaviour following it and the incidents leading to the registration of FIR on the basis of the statement of the child for offences including the one under the provisions of POCSO Act, demonstrate that the custody of the girl should not be entrusted to the petitioner.

12. Having considered the entire matter and particularly in the light of our close and personal interactions with the child, the petitioner, and the party respondents several times today, we have no hesitation in holding that the above contentions of the party respondents are devoid of any merit.

13. Annexure R3(a)statement was given by the child in the presence of the third respondent, the grandmother of the child. The minor states in Annexure R3(a) that her WP(Crl)No.517 of 2025 11 2025:KER:33514 father used to beat her and take her with him when he went out for drinks. According to Annexure R3(a) statement, her father used to touch her buttocks after consuming alcohol and had also inserted his hands into her shorts and rubbed after consuming alcohol. She further stated that her father used to do this while she was studying in the second standard (the minor is now in the 5th standard).

14. Our interaction with the child was after perusing Annexure R3(a) statement given by her to the Sub Inspector of Police. We spoke to her extensively, after giving her sufficient time to get comfortable with us, and also after creating a friendly atmosphere. We also spoke to her in the absence of the petitioner as well as the other respondents. The child seemed to be intelligent and conscious of the purpose of the inquiry. When we repeatedly asked her about the difficulties she faces for not accompanying her father abroad, her reply was only that she finds it comfortable to be with her cousins and grandmother at Thiruvalla. She said, if she were to be WP(Crl)No.517 of 2025 12 2025:KER:33514 sent back to Saudi Arabia, she would get only the company of her father. When we asked her whether the petitioner used to beat her, she said he beats her when she keeps the room untidy. She further told us that her mother used to beat her more frequently. When we asked her pointedly about any unusual behaviour from her father or about other difficulties faced by her at his instance when they were together in Saudi Arabia, she said she had no issues with him other than the fact that he used to scold and beat her for not keeping the house clean. She further stated that even when her mother was alive, it was the father who would bathe her and get her ready in the mornings, as the mother regularly had to attend to her duties during that time.

15. From her repeated assertions to us that her only interest to continue in Thiruvalla rather than in Saudi Arabia is that she likes the company of her cousins and the grandmother, we are satisfied that her welfare and overall interest will not be adversely affected if her custody is restored to the father, despite the WP(Crl)No.517 of 2025 13 2025:KER:33514 allegations made against him in Annexure R3(a) FIR.

16. Certain other circumstances also compel us to hold in favour of the petitioner, ignoring the contents of the FIR. We noticed that, till the death of Lekshmi, and till the child left Saudi Arabia, none had any complaint against the petitioner vis-a-vis the child. In fact, the petitioner had, on his own volition, sent the child with her maternal uncle to Thiruvalla before he brought his wife's body from Saudi Arabia. After the funeral on 17.04.2025, the child was not permitted to go with the father. On 18.04.2025 also, the party respondents did not let the child go with the petitioner, leading to complaints. This writ petition was filed on 20.04.2025 and came up for consideration on 22.04.2025, on which date, this Court issued notice to the party respondents and listed the case to 25.04.2025. On that posting date, when this Court wanted the child to be produced, the learned counsel appearing for respondents 3 to 8 submitted that the post-funeral function of the deceased mother is scheduled to be conducted and WP(Crl)No.517 of 2025 14 2025:KER:33514 requested for a longer date. Hence this Court directed the child to be produced on 02.05.2025 instead of 29-05- 2025. It is evident from the Counter affidavit that, in the meantime, the grandmother took the child to a lady District Child Protection Officer, who is a friend of the grandmother, and who seemingly arranged a counseling by a Psychologist attached to the Child Welfare Committee. All these things happened after the filing of Ext.P5 complaint before the Police by the petitioner and even the writ petition. Significantly, the FIR was registered only on 26.04.2025, i.e. the next day of the date of appearance of the party respondent before this court and that too after the child was directed to be produced by this Court.

17. The above sequence of events and the nature of allegations create doubts in our minds. However, the law will certainly take its course in respect of the allegations made therein. Nevertheless, we are of the considered view that none of the allegations levelled against the petitioner in the FIR are sufficient to deter WP(Crl)No.517 of 2025 15 2025:KER:33514 this Court from denying custody of the child to the petitioner. We are also of the considered view that it is in the best interest of the minor that her father has her custody and she continues her studies in Saudi Arabia. The above conclusion is arrived at after our close and continuous interactions with the child in a conducive atmosphere.

18. We are also not impressed by the contentions of the learned counsel appearing for the party respondents that the child was never detained by the in-laws, and instead, it was the child who is reluctant to go with the petitioner, thus the essential element for invoking the writ habeas corpus is absent in this case. As mentioned earlier, the child was sent to Thiruvalla from Saudi Arabia along with the maternal uncle (respondent No.4) by the father himself. The child was with the petitioner in Saudi Arabia until 14.04.2025, and she had been studying there. It was only on 18.04.2025, the child is said to have resisted going with the petitioner. According to the petitioner, the respondents 3 to 8 obstructed the WP(Crl)No.517 of 2025 16 2025:KER:33514 petitioner from taking the child into his custody. All these attending circumstances make it unquestionably clear that the child is detained by the party respondents without the authority of law, and the said fact is sufficient to invoke our jurisdiction to issue a writ of Habeas Corpus to restore her custody to her father, the petitioner. We find that such a step is essential for her overall welfare and a better future.

19. In the result, we deem it appropriate to issue the following directions:

(i). The minor child Devika, aged 9 years shall be forthwith handed over to the petitioner, who shall be entitled to take the child to Saudi Arabia and continue her studies at the International Indian School, Al-

Jubail, Saudi Arabia.

(ii). All documents relating to the minor child, including her passport and residential permit, which are conceded as in the custody of respondents 3 and 4, shall be handed over to the District Police Chief, Pathanamthitta, on or before 1.00 p.m. on 05.05.2025. The WP(Crl)No.517 of 2025 17 2025:KER:33514 District Police Chief, Pathanamthitta shall, immediately thereafter, hand over those documents to the petitioner.

(iii). The petitioner shall ensure that the child gets access to her grandmother, the third respondent, once in two weeks, preferably on a Saturday evening through video-conference/WhatsApp video call or similar facility as are available. The fourth respondent, who is working in Jabail, Saudi Arabia, will have visitation rights to the child once a month at the residence of the petitioner in his presence and the petitioner shall facilitate the arrangement without any hesitation.

(iv). We clarify that if in case the petitioner is wanted in Kerala in connection with Annexure R3(a) crime (FIR No.1005/2025 of Thiruvalla Police Station), he shall appear before the appropriate officer, provided he is given due notice thereof under section 41A Cr.PC or section 35 of the BNSS as the case maybe.

(v). Since we have exercised our parens patriae jurisdiction to ensure the well-being of the child, the Registry shall post this case on 07/07/2025 and the WP(Crl)No.517 of 2025 18 2025:KER:33514 petitioner shall appear before the Court atleast through the online mode while the respondents shall also be at liberty to appear/be represented.

The writ petition is allowed.

Sd/-

BECHU KURIAN THOMAS JUDGE Sd/-

P. KRISHNA KUMAR JUDGE sv WP(Crl)No.517 of 2025 19 2025:KER:33514 APPENDIX OF WP(CRL.) 517/2025 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE DEATH CERTIFICATE ISSUED BY THE MINISTRY OF INTERIOR, JUBAIL CIVIL AFFAIRS Exhibit P2 TRUE COPY OF THE DEATH REPORT ISSUED BY THE ALMAN HOSPITAL, JUBAIL Exhibit P3 TRUE COPY OF THE STUDENT IDENTITY CARD Exhibit P4 TRUE COPY OF THE RESIDENT IDENTITY CARD Exhibit P5 TRUE COPY OF THE RECEIPT ISSUED AGAINST THE RECEIPT OF COMPLAINT GIVEN TO THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 19/04/2025 GIVEN TO THE 1ST RESPONDENT Exhibit P7 TRUE COPY OF THE RECEIPT NO - 152990401-2025- 5-00046 DATED 19/04/2025 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT RESPONDENT EXHIBITS Exhibit R3(a) TRUE COPY OF THE FIR NO. 1005/2025 OF THIRUVALLA POLICE STATION ALONG WITH THE STATEMENT OF THE VICTIM

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