HAZEENA NAZIR Vs. CITY POLICE COMMISIONER

JUDGEMENT

(1.) Mother of a minor girl child named 'Zaerah' is the petitioner herein seeking a writ of Habeas Corpus for commanding production of the corpus of the child and release her from the custody of the 4th respondent, who is the husband of the petitioner and father of the minor child.

(2.) Under normal circumstances, this court would not have entertained the above writ petition, because the averments would reveal that the minor child is in the custody of her father. But the facts and circumstances in the present case is slightly different. Averments are to the effect that, the petitioner and the 4th respondent are living separated due to matrimonial disharmony and the minor child was in the custody of the petitioner till 8.5.2018. It is alleged that the 4th respondent took custody of the minor child forcefully from the petitioner on 8.5.2018, and thereafter he filed an original petition before the Family Court, Chavara as O.P.(G&W)No.323/2018. It is stated that the petitioner and the 4th respondent got separated since 2013 and a case instituted by the petitioner seeking dissolution of the marriage is pending disposal before the Family Court, Chavara as O.P.No.1148/2013. When the child was taken custody by the 4th respondent, the petitioner lodged a complaint before the police authorities at Oachira, based on which a case was registered by the 3rd respondent as Crime No.908/2018, under Section 57 of the Kerala Police Act. In the case instituted by the 4 th respondent seeking guardianship and permanent custody of the minor child, he filed I.A.No.998/2018 seeking temporary injunction restraining the petitioner herein from taking forceful custody of the minor child or from causing any obstruction to the studies of the minor child. On getting notice in the said case, the petitioner entered appearance before the Family Court and filed I.A.No.1132/2018 seeking interim custody of the minor child. The Family Court considered both the above said interim applications together and passed a common order on 9.7.2018 as evidenced from Ext.P1. It was found that, the petitioner herein was having custody of the child till 8.5.2018 and that the 4th respondent had instituted the case only after getting custody of the child on that day. Therefore the Family Court found that the 4th respondent is not entitled to get an order of temporary injunction as prayed for. Accordingly I.A.No.998/2018 was dismissed. The application filed by the petitioner seeking interim custody of the minor child, I.A.No.1132/2018, was allowed by the court below. The 4th respondent was directed to hand over custody of the minor child to the petitioner herein, within ten days from the date of the order, failing which it was made clear that she will be entitled to execute the order through due process of law.

(3.) Despite Ext.P1 order passed on 9.7.2018, the 4th respondent failed to handover custody of the minor child to the petitioner. On the other hand, he filed an original petition before this court as O.P.(FC) No.438/2018, in which he obtained an interim stay against the operation of Ext.P1 order. The petitioner entered appearance in that case and the matter was heard by this court on more than one occasion. Subsequently the