~~~~~~~~~~~ Antony Dominic, J.
The petitioner and the 6th respondent are a divorced couple. In the wedlock, she gave birth to a male child by name Abdul Muthaleev @ Ali Hyder, aged 1½ years. According to the petitioner, at the time of Talaq, as agreed by both sides in Ext.P1, custody of the child was given to her. It is stated that while she was thus enjoying the custody of her minor child, on 3.5.2014, the 6th respondent along with others trespassed into her house, attacked her parents and kidnapped the child. Her complaints to the police were of no help. Therefore, she filed this Writ Petition with the prayer to issue a writ of habeas corpus to trace out the child and to set him at liberty. On 13.5.2014, the child was produced before this Court, when this Court passed the following interim order.
“The petitioner, her parents and sixth respondent are present. The sixth respondent produced before Court Ali Hyder, the son of the petitioner and the sixth respondent. Ali Hyder is aged less than two years.
2. It is admitted by the sixth respondent that he took Ali Hyder from the residence of the petitioner. According to him, the petitioner had married another man belonging to another community and she had left the house. The sixth respondent stated that he found the child in an abandoned state in the house of the petitioner and, therefore, he took the child. Immediately, he appeared before the Family Court, Attingal, filed O.P.No.477 of 2014 and got an interim order, which reads as follows:
“Heard. The petitioner is present with the child. Petitioner has a primafacie case. The respondent or anybody under her are restrained from taking the custody of the child from the petitioner without reason to law until further orders.
Comply with Or.39 R.3 of CPC. Return of notice to 17.05.2014.”
3. During the course of hearing, we directed the sixth respondent to handover the child to the petitioner. The petitioner took the child and fondled him. The petitioner's parents also fondled the child. The child is calm and quiet and he is comfortable with them.
4. We are of the view that, in the facts and circumstances, the petitioner should be permitted to take the child subject to the orders that may be passed by the Family Court, after hearing both parties. The petitioner shall produce the child before the Family Court, Attingal on 17.5.2014. The Family Court, Attingal shall hear the parties and take a decision as to the interim custody of the child, as expeditiously as possible. Till a decision is taken by the Family Court with respect to the interim custody of the child, the child shall remain with the petitioner.
Post the Writ Petition (Criminal) on 23.6.2014.”
2. Accordingly, the child was left in the custody of the petitioner with directions to her to produce him before the Family Court on 17.5.2014. It is now submitted by both sides that O.P.No.477/2014 filed by the 6th respondent before the Family Court, Attingal was dismissed by the Family Court on 17.5.2014.
3. As at present, the child is now restored to the custody of the petitioner. However, as far as the 6th respondent is concerned, counsel states that he has rescued the child for his proper bringing and according to him, subsequent to the divorce the petitioner got remarried and has also converted to Hinduism. He therefore says that it is necessary that the child should be left in the custody of the father.
4. In our view, the issues canvassed by the counsel for the 6th respondent, which are disputed by the learned counsel for the petitioner, are disputed questions of fact and are incapable of resolution in a Writ Petition. Therefore, if at all the 6th respondent is desirous of getting permanent custody of the child, the proper course which he has to adopt is to move the concerned Family Court, under the Guardians and Wards Act. As far as the petitioner is concerned, now the child is restored in her custody and therefore she does not need any further orders.
5. In such circumstances, we dispose of this Writ Petition directing that the child will remain in the custody of the petitioner and that such custody of the child shall be without prejudice to the right of the 6th respondent to move the concerned Family Court with an appropriate application for the permanent custody of the child.
Writ Petition is disposed of as above.
Sd/- ANTONY DOMINIC, JUDGE.
Sd/- ALEXANDER THOMAS, JUDGE.
Ps/24/6/2014