ANSHAD KUNJUMON Vs. DISTRICT POLICE CHIEF, KOLLAM

JUDGEMENT

(1.) Whether the custody of a child with one of the parents, in disobedience to the order of the Family Court, granting custody of the child to the other parent, would amount to illegal custody warranting issuance of a writ of habeas corpus?

(2.) Firstly, this Court, sitting in writ jurisdiction, under Article 226 of the Constitution of India, reminds ourselves that, ordinarily, the dispute on custody of the children between the parents are matters, which must be considered by the Family court, having jurisdiction in this respect and a writ of habeas corpus cannot be issued to handover the custody of the children from one parent to the other. But the Supreme Court recently in Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others [2019 (3) KHC 167] held thus:

(3.) Thus, the decision cited above persuaded us to consider the aforesaid question. In the instant case, the petitioner herein has rightly approached the family court and the family court passed an order granting custody of the child forthwith to the petitioner. But the wife, who eloped with another person, willfully refused to obey the order of the court and the family court subsequently issued another order directing the police concerned to execute the order. But, despite the long lapse of time, the police could not trace out the detenue or execute the order of the Family court.