THOMAS MATHEW @ SIBI Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under section 438 of the Code of Criminal Procedure, 1973.

(2.) The petitioner herein is the accused in Crime No. 127 of 2018 of the Nedumkandom Police Station registered under Section 7 and 8 of the Protection of Children from Sexual offences Act, 2012. The informant is the mother-in-law of the petitioner herein.

(3.) According to the informant, the petitioner herein had married her younger daughter about 7 years back. A child was born in the wedlock and she is now aged 4 1/2 years. From the date of her birth, the child was residing with her maternal grandparents. About 1 1/2 years back, the daughter of the de facto complainant left for her heavenly abode after fighting cancer for a long period of time. After the death of his wife, the petitioner filed a petition before the Family Court, Kattappana, seeking the custody of the minor child. The said petition was allowed ex parte. The order was challenged by the informant before this Court and by Annexure-A2 order dated 18.12.2017, the petition was allowed and the Family Court was directed to dispose of the petition in an expeditious manner. However, during the interregnum, visitation rights was granted to the petitioner. The petitioner was permitted to have custody of the child on every Saturday till 4 P.M. on the succeeding Sunday and he was also permitted to have custody of the child during the first half of Christmas holidays. The petitioner was also directed to pay maintenance at the rate of Rs. 3,000/- to the child every month. According to the informant, in terms of the orders of this Court, the petitioner took custody of the child on 22.12.2017 and the same continued unhindered till 17.2.2018. It is alleged that after the child was returned, while the informant was giving her a bath, the child complained of pain in her private part. On enquiry with the child, she is alleged to have told the informant that the petitioner had touched her intimate private part. The child was immediately taken to the hospital. However, the treating doctor did not admit the child after examining her. Entertaining a fear that if the custody of the child is handed over to the petitioner as per the orders of this Court, it is likely that he would subject the child to sexual abuse, a complaint was lodged stating the above allegations. This led to the registration of the Crime.