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Kerala HC orders handing over of custody of five and a half year old son to mother, quotes a Tamil song and Swiss Cardinal [Read Judgment]

The Kerala High Court recently held that the mother being the natural guardian of a minor, she is entitled to the custody of her five and a half year old son, who was allegedly taken away by his paternal grandparents.

The facts of the case are that Master Mohammed Abesag (“the detenu”) had been staying with his mother and attending school near her residence. His father had divorced his mother by pronouncing talaq in the presence of officials of the local mosque on 11.11.2014. An agreement was entered into between his maternal grandfather and his father at the time of divorce, according to the terms of which, the father would have interim custody for five days during the course of four months, his maternal grandparents were allowed to see him once in a month. At all other times, the detenu was to stay with the mother.

The father of the detenu then moved to Saudi Arabia, where he was employed. The mother is employed as a software engineer and would leave the detenue at her sister’s place during day time. The grandparents would visit him as and when, as was agreed. During their visit on 27.01.2018, the paternal grandparents took away the detenu and did not hand him back. The mother tried to contact the grandparents, but since there was no response, she lodged a complaint with the police on 01.02.2018. She then filed a Writ Petition on 02.02.2018 seeking the issue of a writ of habeas corpus to produce the detenu in court. The paternal grandparents had also filed another Writ Petition alleging harassment by police on 05.02.2018. Both writ petitions were heard together on 7th February.

Judgment:

The Court begins its judgment by quoting a song from a Tamil movie which speaks of the importance of a mother.

“Amma endrazhaikatha uyir illaiye
Ammavai vanangatha uyir illaiye”
(There is no life form which does not call for its mother
There is no life form which does not respect its mother)
sang K.J.Yesudas for the Tamil movie – ‘Mannan’.

The Court also quoted Cardinal Mermillod, who said “A mother is she who can take the place of all others, but whose place no one else can take”.

The Division Bench of Justices V. Chitambaresh and Sathish Ninan then moved on to examine the principles of Mohammedan Law and the judgment of the Supreme Court in Athar Hussain v. Syed Siraj Ahammed [(2010) 2 SCC 654] to hold that the welfare of the detenu is paramount and only a family court can adjudicate on what is best for the welfare of the child.

The Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi) [(2017) 8 SCC 454] to hold that under normal circumstances, the mother is the natural guardian of the child. The Court held:

We do feel that the custody of the detenu has to be restored to his mother forthwith leaving open the remedy of the parties to move the Family Court for appropriate reliefs. The detenu has after all been with his mother and studying in a school nearby since his parents separated. “A mother is she who can take the place of all others, but whose place no one else can take”- said Cardinal Mermillod. Any investigation by the police in the complaint filed by the mother of the detenu cannot be termed as harassment by police either. The police was compelled to trace the detenu and question his paternal grandparents on account of the complaint received. The swift action by the police cannot be scuttled by resort to a writ petition alleging harassment at their hands. We have no hesitation to hold that the writ petition alleging harassment by the police is a misuse of the writ jurisdiction of this Court. The detenu shall forthwith be handed over to his mother to have custody subject to orders of the Family Court.

Read the judgment below:

AMMA-watermark

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