Full Judgment Text
2026:KER:37511
W.P.(Crl.)No.820 of 2026
1
“C.R”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. SOUMEN SEN
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
ST
MONDAY, THE 1 DAY OF JUNE 2026 / 11TH JYAISHTA, 1948
WP(CRL.) NO. 820 OF 2026
PETITIONER/S:
HAYARUNISA ABDUL HAKKIM
AGED 35 YEARS, D/O ABDUL HAKKIM,
HAFEEZ VILLA, DECENT VILLA, KALLAMBALAM,
THIRUVANANTHAPURAM DISTRICT, PIN – 695605.
BY ADVS.
SRI.NAVANEETH.N.NATH
SMT.ABHIRAMI S.
SRI.ABDUL LATHEEF P.M.
SMT. KRUPA SAJI
SRI. ARUN GOPI G. L.
RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE,
STATE POLICE CHIEF HEADQUARTERS, VELLAYAMABALAM,
THIRUVANANTHAPURAM, PIN – 695010.
2 STATION HOUSE OFFICER,
KALLMABALAM POLICE STATION,
SALEM-KANYAKUMARI HIGHWAY, MANAMBUR, KARAVARAM,
KALLAMABALAM, THIRUVANANTHAPURAM, PIN – 695605.
3 AJEEB, S/O. ASANARU PILLAI,
OWNER OF THASNI BAKERY AND FRUITS,
NEAR KALLARA BUS STAND, KALLARA,
THIRUVANANTHAPURAM, PIN – 695608.
BY ADVS.
SRI. REGINALD VALSALAN
SMT. ANN MARIA FRANCIS
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OTHER PRESENT:
BY PUBLIC PROSECUTOR SRI.K.A.ANAS
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
01.06.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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“C.R”
JUDGMENT
st
Dated this the 1 day of June, 2026
Soumen Sen , C.J.
We have heard Mr. Navaneeth N. Nath, learned counsel for
the petitioner, Mr. K.A. Anas, learned Public Prosecutor for re-
spondents 1 and 2 and Mr. Reginald Valsalan, learned counsel
rd
for the 3 respondent.
2. This Habeas Corpus petition has been filed by the
mother, the natural guardian of the minor child, inter alia on
the ground that despite a decree passed by the Family Court
granting permanent custody to her, the father of the child ille-
gally removed the child from her custody while the child was in
school and without informing her. It is prayed that the child be
returned to the mother in terms of the decree of the Family
Court. Although it was open to the mother to seek execution of
the decree of the Family Court, she has filed the present petition
in the nature of Habeas Corpus seeking custody of the child.
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3. We have independently interacted with the minor, the
father and mother of the minor and also the minor in the pres-
ence of his father and mother separately. The minor, in his in-
teraction with us, clearly expressed his desire to be with the
mother, although he initially stated that he would like to go with
the father, which, in our view, does not appear to have been a
statement made in free will. Moreover, there can be no doubt
that the father had taken custody of the child in violation of the
decree passed by the Family Court.
4. It has been contended by the father that the child had
complained about the mother while he was interacting with the
child at the school. However, the father ought to have filed an
application for modification of the compromise decree and could
not have taken the law into his own hands by removing the
child from the custody of the mother, in utter violation of the
decree. There may be circumstances warranting modification of
a decree or order passed by the Family Court; however, the due
legal process must be followed.
5. The learned counsel for the father had read out one of
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the orders passed in the pending execution application filed by
the father, wherein it was alleged that the father was not being
allowed access to the child and the visitation rights clearly pro-
vided in the compromise decree. In the said order, the Family
Court appears to have observed that the child may be returned
to the mother after the minor stays with the father for a few
th
days. The said order was passed on 24 April, 2026. More than
a month had passed, but the child was not returned to the
mother. The said order was passed on 24th April 2026. More
than a month has elapsed, but the child has not been returned
to the mother.
th
6. This petition was filed on 24 May 2026. We are of the
prima facie view that the father acted in breach of the assurance
given to the Family Court by failing to return the child to the
mother. It is unfortunate that the child is being treated like a
pawn in the hands of the parents. The parents are not expected
to behave irresponsibly. In our view, the child should now be
returned to the mother, who shall continue to be the guardian
of the child unless and until the order of the Family Court is
modified.
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7. We, however, make it clear that the observations made
in this order shall not influence the execution proceedings
pending before the Family Court. We further make it clear that
keeping in view the welfare of the child, the Family Court may
pass appropriate direction taking into consideration the Guide-
lines (for child access, child custody along with parental plan)
as formulated with the participation of several stakeholders and
rd
approved by the Calcutta High Court on 23 September, 2025
in W.P.A (P) 257 of 2021 (Ayushman Initiative for Child Rights)
and W.P.A.(P) 166 of 2022 (Antara). This comprehensive child
access and custody guidelines along with the parenting plan
may for the time being be followed by the Family Courts in Ker-
ala till the committee constituted to consider the said plan has
finally placed its recommendations.
8. Keeping in mind the welfare of the child, we also direct
the Child Welfare Officer to file a social investigation report with
regard to the child in the pending execution proceedings for the
court to pass appropriate orders. It is needless to mention that
all the terms of the compromise decree as it stands shall be
strictly followed by the parents. The child is present in court
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and his custody is given to the mother in court itself.
9. We have been informed that the mediation is pending in
respect of a matrimonial dispute between the parties. We hold
and trust that the parties would take an informed decision in
the said proceedings, keeping in mind the welfare of the child.
The Registrar General is directed to circulate the guidelines (for
child access, child custody along with parental plan) to all the
District Judges, Family Courts, and Magistrates in the State ex-
ercising jurisdiction in the matters relating to custody, matrimo-
nial dispute and Protection of Women from Domestic Violence
Act, 2005 , to be applied by the said courts till the Rules are
made by the Rule Committee and approved.
The petition is disposed of.
Sd/-
Soumen Sen
Chief Justice
Sd/-
Syam Kumar V.M.
Judge
vpv
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APPENDIX OF WP(CRL.) NO. 820 OF 2026
PETITIONER’S EXHIBITS:-
EXHIBIT P-1 FREE COPY OF THE DECREE PASSED BY THE HONORABLE FAM-
ILY COURT ATTINGAL DATED 24.06.2025 IN OP (G & W)
NO. 529/2025 ALONG WITH COMPROMISE PETITION.
EXHIBIT P-2 A TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE
2ND RESPONDENT DATED 11.04.2026.
EXHIBIT P-3 A TRUE COPY OF THE ACKNOWLEDGMENT/EVIDENCE PERTAIN-
ING TO THE SAID COMPLAINT DATED 13.04.2026.
RESPONDENTS’ EXHIBITS:-
EXHIBIT-R3(B) TRUE COPY OF THE EA NO.1 OF 2026 IN EP NO.6 OF 2026
IN OP(GW) NO.529 OF 2026 FILED BEFORE THE FAMILY
COURT, ATTINGAL ALONG WITH AFFIDAVIT
EXHIBIT-R3(A) TRUE COPY OF THE EXECUTION PETITION NO.6 OF 2026 IN
OP(GW) NO.529 OF 2025 FILED BEFORE THE FAMILY COURT
ATTINGAL.
EXHIBIT-R3(C) TRUE COPY OF THE EA NO.3 OF 2026 IN EP NO.6 OF 2026
IN OP(GW) NO.529 OF 2026 FILED BEFORE THE FAMILY
COURT, ATTINGAL.
EXHIBIT-R3(D) TRUE COPY OF THE EA NO.5 OF 2026 IN EP NO.6 OF 2026
IN OP(GW) NO.529 OF 2026 FILED BEFORE THE FAMILY
COURT, ATTINGAL ALONG WITH AFFIDAVIT.
EXHIBIT-R3(E) TRUE COPY OF THE SCREEN SHORT OF THE ORDER DATED
24.4.2026 PASSED BY THE FAMILY COURT ATTINGAL IN EP
NO.6 OF 2026 IN OP(GW) NO.529 OF 2026 TAKEN FROM THE
E-COURT SERVICES APPLICATION.
EXHIBIT-R3(F) TRUE COPY OF THE SCREEN SHORT OF THE ORDER DATED
30.4.2026 PASSED BY THE FAMILY COURT ATTINGAL IN EP
NO.6 OF 2026 IN OP(GW) NO.529 OF 2026 TAKEN FROM THE
E-COURT SERVICES APPLICATION.