SUNANDA v. RENUKA SISUPALAN

R.BASANT & M.C.HARI RANI, JJ.------------------------------------W.P(Crl.) No.313 of 2009-------------------------------------Dated this the 5th day of August, 2009JUDGMENTBASANT, J.The petitioner has come to this Court with this petition under Article 226 of the Constitution for issue of a writ of habeascorpus to search for, trace and produce her second daughter, aminor girl, aged 16 years (date of birth 19.11.1992). It is her case that the girl is missing from 25.07.09 and the girl has been taken away and kept in the illegal custody of the elder sister of the petitioner, ie. the 1st respondent herein.

This petition has come up for admission today. Wehave heard the learned counsel for the petitioner in detail. Inthe course of the submissions before us, it is conceded that as early as on 24.07.09, the 1st respondent and the minor girl together had filed a complaint before the Magistrate under the provisions of the Protection of Women from Domestic ViolenceAct, 2005. An interim exparte order has been passed against the petitioner by the learned Magistrate and the said case now stands posted before the learned Judicial Magistrate of the First W.P(Crl.) No.313 of 20092Class-III, Neyyattinkara to 06.08.2009. The said exparte interim order passed on 24.07.09 restrains the petitioner and others from committing any act of domestic violence or compelling the alleged detenue to do any dance program and photo sessions against her will and wish. It is at that juncture that the petitioner has come to this Court with this petition for issue of awrit of Habeas Corpus.

This is not a case where the detenue is allegedly confined in secrecy. Even going by the version of the petitioner, prior to the date on which the detenue was allegedly missing, she along with the 1st respondent had approached the learnedMagistrate with a complaint under the Protection of Womenfrom Domestic Violence Act, 2005. The Court of the Magistrateis seized to the matter and exparte interim order had been passed. That case stands posted to 06.08.09.

It is for the petitioner now to appear before the learned Magistrate and make appropriate submissions. If she has a case that the alleged detenue, her daughter, is illegally detained by the 1st respondent and others, she can certainly request the learned Magistrate to verify that fact. We have no reason to assume that the learned Magistrate shall not do the W.P(Crl.) No.313 of 20093same. We do not, in these circumstances, find any necessity or justification in the prayer for issue of a writ of habeas corpus to trace the alleged detenue.

It is submitted that the husband of the petitioner is abroad and is not available and that the petitioner has a strained relationship with her husband. Even conceding that, the petitioner, being the parent available in India and entitled ordinarily to keep the custody of the girl, can certainly approach the Family Court under the Guardian and Wards Act and claim custody of the child who is now in the custody of the 1strespondent, who is none other than the maternal aunt of the alleged detenue. That course of action will also be available to the petitioner.

We do not, in these circumstances, find any justification in the prayer to issue a writ of habeas corpus to trace the alleged detenue.

This Writ petition is, in these circumstances, dismissed with the specific observation that the option of the petitioner to appear before the Court of the Magistrate, where proceedings under the Protection of Women from DomesticViolence Act, 2005 are pending or to claim custody of the girl in W.P(Crl.) No.313 of 20094accordance with law by initiating proceedings before the FamilyCourt under The Guardian and Wards Act, shall remain unfettered by the dismissal of this Writ petition.

Hand over a copy of this order to the learned counselfor the petitioner. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE)rtr/-