Kerala High Court
Amal Azad Sahib vs A.Akbar Ips on 7 July, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938
Crl.Rev.Pet.No. 1048 of 2016 ()
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AGAINST THE ORDER/JUDGMENT IN CRL.M.P.NO.1731 OF 2016 IN CRA
94/2016 of I ADDL.DISTRICT & SESSIONS COURT,KOLLAM DATED 07-07-2016
AGAINST THE ORDER/JUDGMENT IN CRMC 163/2015 of JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, KOLLAM
PETITIONER/RESPONDENT /PETITIONER:
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AMAL AZAD SAHIB
AGED 30 YEARS, D/O.A H AZAD SAHIB,
KUNNINPURATHU, TKM COLLEGE PO,
KARIKKODU, KOLLAM 691005,
NOW RESIDING AT IIT CAMPUS CENTRE,
CHENNAI 36, REPRESENTED BY HER POWER OF ATTORNEY
HOLDER,AH AZAD SAHIB, AGED 64 YEARS,
S/O.HUSSAIN RAWTHER, RESIDING AT THAIVILAYIL,
KOLLAKKADAVU PO, CHENGANNOOR, ALAPPUZHA DISTRICT
BY ADVS.SRI.M.T.SURESHKUMAR
SRI.I.STEVENSON
SRI.R.RANJITH
SRI.N.MANU THAMPI
SRI.N.BIJA KRISHNA
SRI.P.R.JAYASANKAR
RESPONDENTS/RESPONDENT/COMPLAINANT:
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1. A.AKBAR IPS
SUPERINTENDENT OF POLICE, ANALYSIS WING
(CRIME BRANCH), UDAYASIROMANI ROAD,
VAZHUTHAKKADU, THIRUVANANTHAPURAM,
NOW WORKING AS DISTRICT POLICE CHIEF,
ALAPPUZHA, RESIDING AT KUNNANPURATHU HOUSE,
ALANGADU PO, KOTTAPPURAM, ALUVA,
ERNAKULAM DISTRICT, 683101
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682031
R1 BY ADV. SRI.S.RAJEEV
R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN
R1 BY ADV. SRI.V.VINAY
R1 BY ADV. SRI.D.FEROZE
BY PUBLIC PROSECUTOR:SRI C K SURESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 12-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SUNIL THOMAS, J.
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Crl.R.P.No.1048 of 2016
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Dated this the 12th day of August, 2016
ORDER
Revision petitioner herein is the wife and the respondent is the husband. Matrimonial disputes arose and the wife moved Judicial First Class Magistrate Court-I, Kollam, invoking the provisions of Protection of women from Domestic Violence Act. An interim application was filed by the husband for getting the custody of the children every week end. By order dated 26.02.2016, the court below, after taking into consideration the claim raised by both sides and the interest of the children, directed to give the custody of the children to the petitioner therein on every second and fourth Fridays of a month for two days. This suggestion was also not objected to by the petitioner therein and hence was permitted to take the children to his house on the second and fourth Fridays of every month, until further orders. In the meanwhile, the wife, who was an Asst. Professor in an Engineering College got admission for undergoing PhD at IIT, Chennai under the quality improvement programme. So, she deemed it fit and proper to arrange for a better education for the children in Chennai and got admission for Crl.R.P.1048/16 2 the children in a school in the IIT Campus itself. Husband coming to know about it, filed Crl.M.P.1731 of 2016 in S.C.No.94 of 2016 pending before the Sessions Court, Kollam seeking temporary injunction restraining the wife from removing the children from the jurisdiction of the Sessions Court, without the prior permission of the Court. It was contended that the children were taken outside the jurisdiction of the court to get over the order passed by the Judicial First Class Magistrate Court in Crl.M.P.No.1409 of 2016. After an elaborate consideration, Sessions Court allowed the Crl.M.P and passed an interim injunction restraining the wife from removing the minor children from the jurisdiction of Kollam district, without the prior permission of the Court. Aggrieved by the above order, wife has approached this Court seeking orders.
2. Admittedly, there were minor bickerings resulting in matrimonial discord. Husband is an IPS officer, whereas, wife is a highly educated Asst. Professor in an Engineering College, now pursuing research programme in a prestigious institution. Definitely, both have excellent cultural and academic background and the society expects greater contribution from both. It seems that the wife is concerned about giving the children quality education. The predominant interest of the husband is to ensure that the learned magistrate's order is also complied with, in his eagerness to have the company of the children atleast during the Crl.R.P.1048/16 3 holidays. Both sides apparently agreed regarding their concern about the welfare of the children also. Having regard to the interest of the wife to pursue her higher education and the onerous responsibility vested in the husband, now stationed at Alappuzha and the predominant aspect of welfare of children, it was felt fit and proper to have a discussion with both counsel, after seeking instruction from respective parties. Ultimately, the husband very fairly conceded to limit the company of the children to the second Saturdays and Sundays of every month in lieu of second and fourth Fridays as directed by the Court. To compensate that, it was suggested that during pooja holidays, during the whole period of vacation, father can have the company of the children. Both above proposals were very fairly conceded by wife. It was also agreed that the travel expense of the children and the wife/a close relative accompanying them, from Chennai to Kochi, will be met by the wife and return journey of all of them will be met by the husband. The children may be sent by flight, by train or any other convenient mode, subject to availability of the tickets, the time factor and also other contingencies. That option is left to the parties concerned. Both sides shall ensure that on the second Saturday and succeeding Sunday, the children will be with the father and the children are transported safely and properly, without affecting their studies.
3. I am confident that these fair gestures and concessions Crl.R.P.1048/16 4 made by both sides will pave way for a mutually amicable settlement of matrimonial discord, having regard to the age of the couple, their social status as well as the future of the children. Hence, the court below shall also earnestly explore the possibilities of an amicable settlement by mediation.
4. In the light of the above, Crl.M.P.No.1731 of 2016 will stand set aside and any prosecution initiated on the basis of that injunction order will also stand closed. The order in Crl.M.P.No.1409 of 2016 will stand modified to the extent mentioned above. The direction to hand over the children during the second Saturdays and Sundays will start operating from September 2016 onwards. It is made clear that this will supersede both orders passed by the learned magistrate and the sessions judge.
Crl.R.P is disposed of. It is further clarified that this is only an interim arrangement. Parties can approach the courts below for further modifications and clarifications and the courts will be free to pass any appropriate changes or modification of the above order, taking stock of the then existing factual situation.
Sd/-
SUNIL THOMAS Judge Sbna/12/8/16 True Copy / P A to Judge