Kerala High Court
Aswathy. S. Venu vs The Superintendent Of Police on 11 January, 2023
Bench: Alexander Thomas, Murali Purushothaman
WP(Crl.) No.1305/2022 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Wednesday, the 11th day of January 2023 / 21st Pousha, 1944
WP(CRL.) NO. 1305 OF 2022(S)
PETITIONER:
ASWATHY. S. VENU, AGED 33 YEARS, D/O. S. VENU,
VEENA VILLA, PALLARIMANGALAM.P.O, ALAPPUZHA DISTRICT, PIN-690 107.
RESPONDENTS:
1. THE SUPERINTENDENT OF POLICE, OFFICE OF S.P, CHENGANNUR, PIN- 689
121.
2. THE SUB INSPECTOR OF POLICE,KURATHIKAD POLICE STATION, ALAPPUZHA
DISTRICT, PIN- 690 534.
3. AJAYAGOSH. A.H, AGED 34 YEARS, S/O. HARIDAS,
ANANDHABHAVANAM,VATHIKULAM, OLAKETTIAMBALAM. P.O, ALAPPUZHA
DISTRICT, PIN- 690 510.
Writ petition (criminal) praying inter alia that in the
circumstances stated in the affidavit filed along with the WP(Crl.) the
High Court be pleased to pass an interim direction to the respondents 1
and 2 police to produce the child, Avanthika before this Hon'ble Court
without any further delay considering the need of 1st petitioner in the
interest of justice pending disposal of this writ petition criminal.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(Crl.) and this Court's Order dated
06.01.23 and upon hearing the arguments of M/S. M.M.LAIJU NISSA & KISHOR
B., Advocates for the petitioner,PUBLIC PROSECUTOR for R1 & R2 and of
SRI.M.R.SASITH,for R3, the court passed the following:
P.T.O
WP(Crl.) No.1305/2022 2/6
ALEXANDER THOMAS & MURALI PURUSHOTHAMAN, JJ.
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W.P. (Crl.) No. 1305 of 2022
=============================================
Dated this the 11th day of January, 2023
ORDER
We had issued notice in this case on 6.1.2023 and pursuant to the directions issued by this Court on that day, the alleged detenue (Ms.Avanthika, aged 9 years, daughter of the petitioner & R-3) has been produced before the Secretary, DLSA, Alappuzha and thus, enabled us to interact with the alleged detenue through a video conferencing session. The petitioner and R-3 were also present.
2. The case set up in the above Writ Petition (Criminal) is to the effect that, the petitioner herein, aged 33 years, is the wife of the 3rd respondent, aged 34 years, and the alleged detenue -'Ms.Avanthika', aged 9 years, is the minor daughter born in their wedlock. The specific case of the petitioner is that, she has been subjected to mental and physical harassment by the 3rd respondent and that, she was assaulted by him in September, 2021 and she would place reliance in that regard on Ext.P-3 (wound certificate issued by the Taluk Hospital, Kayamkulam). According to the petitioner, later, the harassment meted out to her, by the 3rd respondent, became intolerable and she WP(Crl.) No.1305/2022 3/6 W.P. (Crl.) No. 1305/2022 2 was constrained to make an attempt to commit suicide on 7.11.2022 and when she was taken to the hospital, the child was taken away from her, by the 3rd respondent. Later, the Police has registered Ext.P-4 Crime No. 586/2022 of Kurathikadu Police Station against the 3 rd respondent, based on the complaint of the petitioner, for the offence punishable under Sec.498A of the IPC. Thereafter, the 3rd respondent has completely denied access of the child to the petitioner and that, he has not even permitted her, in any manner, to interact or see the minor daughter, who is hardly aged 9 years. Further, the counsel for the petitioner would allege that the child is not even given regular schooling and that, the child is now being taken care of by a distant relative of the 3rd respondent. R-3 has denied the allegations of cruelty and harassment.
3. Now, on interaction, we could understand from the 3rd respondent that the child is not now being sent to regular school and is given online education. Further, the 3rd respondent has told us that his mother's elder sister's daughter is now taking care of the child. We fail to understand as to why the 3rd respondent has not even cared to give proper regular schooling facility to the child, since November, 2022.
4. After hearing both sides, we are now of the prima facie view WP(Crl.) No.1305/2022 4/6 W.P. (Crl.) No. 1305/2022 3 that as the child is a daughter, who is hardly the age of 9 years, and as the child is put under the care of a distant relative of the 3 rd respondent, the welfare and interest of the child would require that the child should be entrusted, for the time being, to the petitioner, who is the child's mother. Moreover, the child was with the mother till November, 2022 or so.
5. On being queried, the petitioner has informed us that, she is now residing in her parental home along with her father and mother and that, her mother would fully help the petitioner in taking care of the child. The parental home of the petitioner is hardly 1 km away from the residence of the 3rd respondent. Further, we are told that the petitioner is not having any gainful employment and she could devote her full time in taking care of the child.
6. Sri.M.R.Sasith Panicker, learned counsel appearing for the 3rd respondent, seeks short time to file counter affidavit of the 3rd respondent.
7. Ten days' time is given to the 3rd respondent to file counter affidavit in this case. The petitioner may file reply thereto, within 5 days thereafter.
8. Based on a prima facie assessment of the facts and WP(Crl.) No.1305/2022 5/6 W.P. (Crl.) No. 1305/2022 4 circumstances of the case, it is ordered, in the interest of justice, that the petitioner, for the time being, can take the child so that the child can reside with her in the parental home of the petitioner. The petitioner shall ensure that the child is given regular schooling facility, immediately, without fail.
9. The abovesaid direction will be subject to further orders to be passed by this Court and will also be subject to the result of this Writ Petition (Criminal).
List the case on 30.1.2023.
Hand over to both sides.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
MURALI PURUSHOTHAMAN, JUDGE SDK MMG 11-01-2023 /True Copy/ Assistant Registrar WP(Crl.) No.1305/2022 6/6 APPENDIX OF WP(CRL.) 1305/2022 Exhibit P 3 COPY OF THE ACCIDENT CUM WOUND CERTIFICATE NO. 2295 DATED 22-09-2021 ISSUED BY DR. P.K. KUNJU SAHIB MEMMORIAL TALUK HOSPITAL; KAYAMKULAM Exhibit P4 copy of the F.I.R No.586/2022 dated 08.11.2022 at Kurathikad Police Station 11-01-2023 /True Copy/ Assistant Registrar