BASHEER Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) Unprecedented history and development makes the above writ petition unique among those cases in which writ of Habeas Corpus was sought for as a relief. Father of a female infant, namely - Aliya Fathima, aged 9 months only, had approached this court with an unusual complaint that his wife, who is the mother of the baby and his father-in-law are denying treatment to the baby, who requires an immediate liver transplantation. Averments are that, the petitioner married the 5th respondent on 23-06-2013 and the child Aliya Fathima was born out of the wedlock on 13-04-2015. The child was diagnosed of having 'Biliary Atresia' for which liver plantation is the only remedy suggested considering the critical situation. The child was treated at the 6th respondent hospital (subsequently impleaded). Eventhough the petitioner took registration in the Hospital to find out a prospective donor and also remitted a sum of Rs. 3,00,000/-, which amount he had received from the 'Chief Minister's Distress Relief Fund', the respondents 4 & 5 had refused to provide necessary follow up treatment to the baby, is the allegation. It is stated that the 5th respondent had left the company of the petitioner along with the baby and started residing with the 4th respondent, who is her father. The petitioner during that time was employed in Gulf countries. On account of illness of the child he came back from on 10-12-2015. But due to the matrimonial discord, he was not allowed to see the child or to make arrangements for her continued treatment. It is also alleged that the respondents 4 & 5 are collecting money from the public as donations/contributions for the treatment of the child by issuing paper publications, but they are attempting to misappropriate such amounts collected. Eventhough the petitioner submitted complaints to the police authorities as well as to the authorities of the Jama-ath concerned, no action was taken. It is contended that respondents 4 & 5 are illegally keeping the baby Aliya Fathima under detention against the interest and welfare of the child, in a manner denying treatment to her critical illness. Hence this court was approached seeking a writ of Habeas Corpus for directing production of the baby and to issue appropriate directions.

(2.) When the above writ petition came up for admission on 04-01-2016, we directed the 3rd respondent to conduct an enquiry regarding whereabouts of the child and the 5th respondent. He was also directed to ascertain as to whether the child is being provided with continued treatment. On 08-01-2016, the learned Government Pleader appearing on behalf of respondents 1 to 3 submitted on instructions that, due to the matrimonial disputes the baby is being denied of any proper treatment, despite proper counselling given from the 6th respondent hospital to the parents about the worsening health condition of the child. A certificate obtained from the 6th respondent hospital was produced, which revealed that the child is suffering from 'extrahepatic biliary atresia' with features of biliary stasis and cirrhosis. The certificate indicated that the only curative therapy available is transplantation of the liver. The report would indicate that the team for liver plantation available at the 6th respondent hospital is fully involved in the management of the child and in providing counselling to the family. Further it is stated that on follow up examination it was revealed that the condition of the child has been deteriorated of having a decompensated cirrhosis liver. It is mentioned that the child was lastly admitted in the hospital only on 03-12-2015 and that no medical attention is given to the baby thereafter.

(3.) Since the above said report revealed an alarming situation that life of an infant aged 9 months is at stake due to the disputes and disharmony of her parents, we felt it as a fit case where the extra ordinary discretionary jurisdiction need to be invoked in order to protect the life of the child, which is a very fundamental and basic right which she possess, despite her inability to express about the infringements on such rights or despite her inability to take any steps to protect such right. From the situation prevailing it was felt that, this is a fit case where the jurisdiction of 'parens patriae' need be exercised. Under given fact situation this court realised the need to direct drastic steps with imminent interventions in order to save the life of the baby Aliya Fathima. Hence this court suo motu impleaded the 6th respondent hospital as well as the 7th respondent Bank, wherein the contributions received in the name of the baby was deposited. The 2nd respondent-Commissioner of Police, Thiruvananthapuram City was directed to take immediate steps to get the baby admitted in the 6th respondent hospital. The 6th respondent was directed to take follow up actions towards their endeavour to materialize the liver plantation. The 7th respondent was also directed not to permit withdrawal of any amounts in deposit in favour of the minor child. Thereafter the progress of the treatment of Aliya Fathima was monitored by this court by issuing appropriate orders from time to time.