Mohanan,J:
The petitioner herein claimed that the second respondent is his divorced wife and in that wedlock, two children were born to them viz., 'Shifil Shan' aged 7 years and 'Ghazal Azman' aged 1½ years. It is the further allegation of the petitioner that the said children are under the illegal custody of the second respondent and the third respondent, who is the brother of the second respondent and therefore, he approached this Court by filing the above writ petition (Crl.) under Article 226 of the Constitution of India with a prayer to issue a writ of habeas corpus or any other appropriate writ, order or direction commanding the first respondent to produce the body of the minor children before this Court from the illegal detention of respondents 2 and 3 and to hand over the custody of the minor children to the petitioner in order to ensure the safety of the lives of the minor child.
2. This Court, by order dated 21.10.2014, while admitting the above writ petition (Crl), directed respondents 2 and 3 to produce the above said children before this Court on this date. Thus, when the matter is taken today, the second respondent along with the children appeared before us. The petitioner is also present. After hearing the counsel for the petitioner as well as respondents 2 and 3, we interacted with the petitioner as well as the second respondent. In the light of the submission made by the counsel for the petitioner as well as the contesting respondents and on the basis of the facts disclosed through the interaction with the contesting respondents, we directed the parties to sit together in the presence of the respective counsel and to explore any possibility for amicable settlement and accordingly, the case was adjourned after lunch session of this Court. Thus, when the case is taken up again, it is submitted by the counsel for the petitioner as well as the contesting respondents that no amicable settlement is arrived.
3. The grievance projected by the petitioner in the above writ petition is that though there was a bilateral agreement i.e., Ext.P1, the second respondent violated the terms of the said settlement and the petitioner does not know the whereabouts of the children. Counsel for the second respondent submitted that the second respondent has not violated any of the conditions contained in Ext.P1 agreement. Going by the terms of Ext.P1 agreement, it can be seen that as per clause (6), remedies are provided in the said agreement itself, in case any of the parties violated any of the conditions. As indicated earlier, though we directed the parties to sit together and to come to an amicable settlement, no workable settlement is arrived.
4. It is also relevant to note that the custody of the children is given to the second respondent as per Ext.P1 Bilateral agreement, arrived between the petitioner and the second respondent and therefore, it cannot be said that the custody of the children with the second respondent is illegal. But the petitioner, being the father of the said children also has the right to have their company or has the right to visit them. However, this right and liability has to be fixed by a competent court. Therefore, we are of the view that the parties can be relegated to approach the concerned Family Court for the custody of the children either on temporary basis or on permanent basis. Since, the detenues, the children of both the petitioner as well as the second respondent are minors between the age of 7 years and 1½ years respectively, and are produced before this Court by the second respondent, we allow the second respondent to take the children along with her.
In the result, this petition is closed as the detenues, who are the children of the petitioner as well as the second respondent, are not under the illegal custody of anybody. We make it clear that either of the parties can approach the Family Court concerned with respect to the custody of the children or for visitorial right etc.
This writ petition is closed subject to the above observation.
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V.K.MOHANAN,Judge.
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K.HARILAL,Judge.
MBS/ -true copy-
P.S.TO JUDGE.