Mohanan,J:
The petitioner is the mother of one Muhammed Roshan, aged 3 years and Riyas Sulthana, aged 3 years. The grievance projected by the petitioner in this writ petition is that the second and third respondents had taken the custody of the above children from her custody forcefully. Therefore, impleading the in-laws of the petitioner without impleading her husband, this writ petition is filed with a prayer to issue a writ of habeas corpus directing the first respondent to produce the corpus of the detenue 'Muhammed Roshan' aged 3 years and 'Riyas Sulthana' aged 3 years before this court.
2. When the above writ petition is admitted and while issuing notice to respondents 2 and 3, they were directed to be present in this Court with the children and the first respondent/Police is directed to see that the said order is complied by respondents 2 and 3. Pursuant to the above order, the above children were produced before this Court on 7.10.2014. Though the father of the said children, who is the husband of the petitioner, is not impleaded, he was present on that day. Accordingly, we directed the petitioner to implead the father of the children as additional respondent and the children were sent along with their father. Again on 7.11.2014, the children were produced and we permitted the petitioner to have interaction with the children till 4.30 p.m. on that day and thereafter directed to hand over the children to additional fourth respondent. When the matter was again taken on 13.11.2014, the petitioner was permitted to have the custody of the children till 4.30 p.m. on that day and the petitioner was directed to file reply affidavit, if any, against the counter affidavit filed by the contesting respondent and adjourned the case to this date. Today also the children are produced by the contesting respondents.
3. We have heard the learned counsel for the petitioner and Senior counsel Sri.Ibrahim Khan appearing for the respondent.
4. Learned counsel for the petitioner submitted that the petitioner is entitled to get the custody of the children as per law, particularly when the children were allegedly taken forcefully from her custody and possession. In order to substantiate the above contention of the counsel, he placed reliance upon a decision reported in Jumaila v. Abdul Gafoor and others [2012 (2) KHC 770]. The learned Senior Counsel appearing for the respondent submitted that by virtue of Section 7(g) of the Family Courts Act,1984, the dispute regarding the custody of the children has to be raised before the Family Court concerned.
5. Having regard to the facts and circumstances involved in the case, it appears to us that so far, the petitioner has not approached the Family Court for the custody of the children. As rightly pointed out by the learned Senior Counsel, by virtue of Section 7(g) of the Family Courts Act,1984, specific jurisdiction is conferred upon the Family Court with respect to the guardianship of the person, or custody of, or access to any minor. In the decision relied on by the learned counsel also, the mother approached the Family Court, Malappuram and the said court has decided that the wife should have the custody of her children. However, in the present case, the petitioner directly approached this Court by invoking jurisdiction of this Court under Article 226 of the Constitution of India. When an effective alternative remedy is provided under the Family Court Act, we are of the view that this Court will not be justified in usurping such powers of the Family Court, particularly when the court is confronted with the question of custody of minor children, paramount consideration must be of the welfare of such children, which has to be considered only on the basis of the appropriate pleadings and evidence on record. So, under Article 226 of the Constitution of India, this Court will not be able to effectively exercise such jurisdiction in the absence of any evidence or materials. The additional fourth respondent, being the father of the children and respondents 2 and 3, being the brother and sister of the additional fourth respondent, it cannot be said that the custody of the children with them, is illegal unless appropriate decision is taken by the competent authority, based upon evidence.
In the result, we find no merit in this writ petition and accordingly, we do not propose to proceed with the same, especially when the petitioner is left with an effective remedy to redress her grievance, if any. So, we are inclined to dispose of this writ petition relegating the petitioner to approach the Family Court, Nedumangad. The petitioner is free to have custody and interaction with the children till 4.30 p.m. today.
V.K.MOHANAN, Judge K. HARILAL, MBS/ Judge.