Ker HC | Invocation of writ petition under Art. 226 not warranted in determining the custody of child

Kerela High Court: The Division Bench of K. Harilal and P. Somarajan, JJ. dismissed a writ petition regarding the determining interim custody of the child of the parties. 

In the present case, the petitioner and the first respondent are the husband and wife, respectively and they were living with their child in Qatar. On the 07.10.2019, the respondent, picked the child from his school and arrived at Kochi, India, without any prior permission or knowledge of the petitioner. Thus, the child is under illegal custody of the respondent. 

Upon issuance of a notice by the present court, the mother of the first respondent, appeared before the court and submitted that the first respondent had already filled an application before the family court, Pala and had obtained an order of injunction restraining the petitioner from taking the custody of the child during the pendancy of the original petition.

High Court upon perusal of the arguments of the parties, stated that the dispute involved in the present writ petition relates to that of the custody of the child between a father and mother, hence a family court is a more competent forum for determining the custody, considering the welfare of the child. The bench also directed the family court to advance the matter and pass an interim order determining the interim custody of the child, till the final disposal of the original petition.  [Aurif Bin Thaj v. Besse Ann George,  2019 SCC OnLine Ker 3470, decided on 22-10-2019] 

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    It is a case of transnational parental child abduction to India, which has been serving as haven for parental child abductors, using the child as an instrument to blackmail and harass the left behind parent(LBP) and preventing care,comfort,company and communication between the child and LBP. India does not recognize parental child abductions as child abuse, parental alienation and cruelty to children and LBPs. The child abductions to India, continues in exponential numbers, so long as Indian Govt. procrastinate to introduce a bill in Parliament on Civil Aspects of Parental Child Abductions from/to India. Sadly, the abducted children are the worst sufferers and permanent victims who are deprived of equal and shared parenting by both the parents.

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