R.Nirmala v. Y.Shanthi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :23.04.2009CORAMTHE HONOURABLE MR JUSTICE ELIPE DHARMA RAO andTHE HONOURABLE MR JUSTICE C.T.SELVAMHabeas Corpus Petition No.501 of 2009Tmt.R.Nirmala ... PetitionerVs1. Tmt.Y.Shanthi2. The Inspector of Police, Pallikaranai Police Station, Chennai.3. G.Yuvanesh Pradeep Kumar ... Respondents(Third respondent impleaded as per the order of the Court dated 23.4.2009, made in M.P.No.1 of 2009)Prayer: Petition under Article 226 of the Constitution of Indiapraying for the issuance of a writ of Habeas Corpus for therelief as stated therein. For Petitioner : Mr.V.ParthibanFor Respondents : Mr.AR.L.Sundaresan, S.C., for Mrs.AL.Gandhimathi, for R1 and R3. Mr.N.R. Elango, Addl. Public Prosecutor for R2.O R D E R(Order of the Court was made by ELIPE DHARMA RAO, J.)The petitioner has filed this Habeas Corpus Petition for adirection to the respondents to produce the petitioner'ssister's minor child viz., Deepak Kumar, Son of YuvaneshPradeep Kumar, aged about 8 years, alleged to be in the illegaldetention of the 1st respondent, who is the second wife of thesaid Yuvanesh Pradeep Kumar, before this Court and hand overthe custody of the detenu to the petitioner. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the petitioner is that the marriagebetween her sister Sumathi and one Yuvanesh Pradeep Kumar tookplace on 22.10.1990 and out of the said wedlock, two children,viz., Manoj Kumar and Deepak Kumar (the detenu herein), wereborn on 22.01.1992 and 11.10.2000 respectively. It is statedthat the father of the children used to work abroad mostly insea oil field and at that time, the mother and the childrenused to live along with the petitioner and her family.According to the petitioner, her sister Sumathi, the mother ofthe children, died due to cancer on 24.01.2001 and thereafter,the petitioner took care of both the children. It is statedthat the father of the children, Yuvanesh Pradeep Kumar,remarried on 31.03.2004 and took his first son from the custodyof the petitioner, leaving the second minor son with thecustody of the petitioner and from the date of birth, the minorchild is with her, i.e. for a period of about eight years.According to the petitioner, now, all of a sudden, on03.04.2009, when the child was returning from School, the 1strespondent, with the help of some bad elements, kidnapped thechild and to that effect, a complaint was lodged before the 2ndrespondent police on 04.04.2009, which was registered as a casein Crime No.248 of 2009 under Section 363 IPC. According to thepetitioner, a property measuring 5283 sq.ft. in Survey No.549/1at Pallikkaranai Village, stands in the name of the mother ofthe children, who handed over the said property to her brotherfor the welfare of the children and in order to grab the saidproperty, the father of the children filed civil suit againstthe petitioner. The petitioner also filed a petition beforethe Principal District and Sessions Judge, Chengalpattu, inG.W.O.P.No.72 of 2007 against the father of the minor childunder the Guardian and Wards Act for permanent custody of thechild, wherein, an order of injunction was passed inI.A.No.633 of 2007, which was in force till 23.10.2007, andthereafter, it was not extended. Since no purpose is served byfiling the aforesaid complaint, the petitioner has approachedthis Court by filing the present Habeas Corpus Petition.3. After receipt of notice, on 20.04.2009, the father ofthe minor child along with the child appeared before the Court.We have examined the child, Deepak Kumar. The child expressedthat he is happy with the writ petitioner and her daughter andafter spending some time with his father, he will go back tothe writ petitioner. The father of the child sought thepermission of the Court to file an impleading petition forimpleading him as party respondent No.3, and also requestedtime to file counter affidavit on the ground that the child iswith him and he is the natural guardian of the minor child.Hence, the case was adjourned today.4. Today, an impleading petition to implead the father ofthe minor as party respondent No.3 in the Hebeas CorpusPetition is filed. We have ordered the impleading petition. Acounter affidavit has also been filed by the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/

5. We have perused the affidavit filed by the 3rdrespondent, the father of the minor child, in support of theimpleading petition, wherein it is stated that the habeascorpus petition is filed by making false allegations and hetook an objection for not impleading him as a party respondent.It is further asserted that the minor child is not in thecustody of the writ petitioner and the child is in his lawfulcustody and the child is happy with him along with his elderbrother, Manoj Kumar, aged about 17 years studying XIIStandard. It is also stated in the affidavit that the writpetitioner had filed a false and frivolous complaint againstthe father of the child in Crime No.248 of 2008 under Section363 IPC. on the file of the Inspector of Police, PallikaranaiPolice Station, on 04.04.2009. It is further stated that thefather of the petitioner purchased the property in the name ofhis first wife, viz., the mother of the minor child and havingan eye on the said property, the brother of the mother of theminor child fabricated a Will and claimed right, title andinterest in the said property to the prejudice of the minorchildren and in order to safeguard the said property and ensurethat the rights of his minor children were not lost, the fatherof the children filed a suit in O.S.No.406 of 2003 on the fileof the Additional Sub Court, Chingleput, which was subsequentlytransferred to the file of Principal District Court, Chingleputand numbered as O.S.No.669 of 2004. 6. It is stated in paragraph No.7 of the affidavit by thepetitioner, who is the father of the child, that when the childwas detained by the writ petitioner, his second wife used tovisit the minor child and provide money to take care of hisneeds and the writ petitioner did not do anything for the minorchild out of her exertion. It is also averred that thehusband of the writ petitioner is always abroad and the writpetitioner is alone at home and she has a daughter aged about25 years, who may get married and go to her in-laws house. Itis further stated that the writ petitioner is utilising aportion of the rental income derived from the property of hisfirst wife, which was purchased by him in the name of his firstwife, for the minor child. It is further stated that apetition in G.W.O.P.No.72 of 2007 for permanent custody of theminor child was filed by the writ petitioner and an order ofinjunction was granted initially in I.A.No.633 of 2007 andthereafter, after entering appearance of the impleadingpetitioner, the interim injunction was not extended from23.10.2007. It is further interesting to note the avermentmade in paragraph No.9 of the affidavit filed by the impleadingpetitioner that in spite of the fact that the learned DistrictJudge did not extend the order of interim injunction, the writpetitioner continued to illegally detain the minor child and inspite of his repeated and humble request to hand over thecustody of the child to the father of the child so that thechild may have love and affection of the natural father, havethe companionship of his elder brother and get to live in his https://hcservices.ecourts.gov.in/hcservices/ natural home and society, the writ petitioner did not hand overthe custody of the minor child to him. It is also stated inthe affidavit that the writ petitioner herein, with obviousreasons, having an eye on the property and the income derivedtherefrom to which the minor child would be entitled to,refused to even allow the father to see the child freely.7. On the above stated averments made in the affidavitfiled by the father of the minor child, we have heard thelearned counsel appearing for the petitioner as well as thelearned Senior Counsel appearing for the respondents 1 and 3and the learned Additional Public Prosecutor appearing for the2nd respondent.8. As seen from the averments made in the impleadingpetition, it could be gathered that from the date of birth till03.04.2009, the date on which, the minor child was allegedlytaken away by the first respondent, while he was returningfrom his school, the child was with the writ petitioner and tohave permanent custody of the child, a petition inG.W.O.P.No.72 of 2007 was also filed praying for permanentcustody of the child. Though it is stated that at the instanceof the impleading petitioner, the interim injunction was notextended from 23.10.2007, till the date of 03.04.2009, the dateon which, the minor child was taken away by his father, thechild was under the custody of the writ petitioner. 9. The learned Senior Counsel appearing for the petitionerhas submitted that the impleading petitioner, who is thenatural father, has got right to claim custody of the child.But it is an admitted case that the writ petitioner has broughtup the child from the date of birth till the date of hisremoval from her custody, i.e, 03.04.2009. It is also statedthat in order to get benefit over the alleged property, thewrit petitioner filed G.W.O.P.No.72 of 2007 for permanentcustody of the minor child. But we are of the opinion that theimpleading petitioner has taken away the minor child withoutthe knowledge of the writ petitioner, when he was admittedlystaying with the writ petitioner, only to defeat the writpetition. Though the learned Senior Counsel has come forwardwith a contention that purposely the father of the petitionerwas not made as a party respondent in the Habeas CorpusPetition, as he is the natural father and he is entitled totake the child, we are unable to agree with this contention putforth by the learned Senior Counsel for the simple reason thatthe case of the petitioner is that the child was forcibly takenby the 1st respondent and not by the father. It is her caseeven in the complaint lodged under Section 363 IPC. Therefore,we cannot find fault with the writ petitiner in not impleadingthe father of the minor child as a party respondent to theseproceedings. https://hcservices.ecourts.gov.in/hcservices/

10. The learned senior counsel for the third respondent(father) has argued that habeas corpus petition is not theappropriate remedy regarding custody of the child andtherefore, this habeas corpus petition is liable to bedismissed. In support of his contentions, the learned seniorcounsel for the petitioner has relied on the followingjudgments of the Division Bench of this Court:i. V.Veerapandian -vs- Kalaiselvi and another (1995 (II) C.T.C.510);ii.B.Kamsala -vs- Bommi and others (2005-1-L.W. (Crl.) 297) andiii.Subba Reddy -vs- Commissioner of Police, Greater Chennai,and others (2006) 2 M.L.J. (Crl.) 201).11. In the first judgment cited above, when the father ofa seven year old minor girl has filed habeas corpus petitionalleging wrongful confinement of the child by his estrangedwife, a Division Bench of this Court has held that 'right ofnatural guardian to have custody of minor child above fiveyears has to be agitated before proper forum and such rightcannot be determined in Habeas Corpus proceedings' and thusdismissed the habeas corpus petition. 12. In the second judgment cited above, the paternal grandmother of the minor child has filed the habeas corpus petitionseeking custody of the minor child from the maternal grandmother of the minor child. A Division Bench of this Court hasheld the said habeas corpus petition is not maintainable andfurther held that the 'right to custody of the minor childshould be agitated before the appropriate forum by adducingevidence as to the interest of the minor child and others'. 13. In the third judgment cited above also, the father ofthe minor girl has filed the habeas corpus petition allegingwrongful confinement of his daughter by his parents-in-law anda Division Bench of this Court has held that habeas corpuspetition is not an appropriate forum for such a relief and hasfurther held that the father is free to move appropriate forumto vindicate his grievance.14. All these cases can be factually distinguished. Inall the above matters, either the fathers of the minor childrenor other relatives have approached this Court under habeascorpus jurisdiction seeking custody of the children, withoutfiling necessary proceedings under the Guardians and Wards Actbefore appropriate forums and therefore, the Division Benchesof this Court have dismissed such habeas corpus petitions.But, in the case on hand, for the custody of the child, thewrit petitioner, who is the fostered mother of the minor child,has filed G.W.O.P.No.72 of 2007 before the Principal DistrictCourt, Chengalpattu, as against the natural father of thechild, and the same is still pending. When admittedly, thecustody of the minor child was taken away by the second wife of https://hcservices.ecourts.gov.in/hcservices/ the natural father or the natural father himself (as has beenaverred by him in his counter affidavit), from the custody ofthe writ petitioner, without her knowledge and information,left with no option, besides lodging a criminal complaint forthe offence under Section 363 IPC, the writ petitioner has comeforward to file this habeas corpus petition, wherein we find noillegality. Therefore, all the above relied on cases by thelearned senior counsel for the respondents do not apply to thefacts of the case on hand.15. The learned counsel for the third respondent furtherargued that father, being the natural guardian, is entitled tothe custody of the child and in support of his suchcontentions, the learned senior counsel has garnered supportfrom the following decisions:-(i)Krishna Raj -vs- Rajasekar and another (1997 (II) C.T.C.92);and(ii)T.Kochappi -vs- R.Sadasivam Pillai(2006 (5) C.T.C. 337).16. In both the above matters, arose under the Guardianand Wards Act, 1890, the Division Benches of this Court haveheld that paramount importance would be the welfare of minorchildren and when there is no allegation that the father isacting against the interests of the minor children, it is notproper to remove him from his guardianship. We have no quarrelwith the above well established proposition of law. But, everycase has to be decided on its own facts. In the case on hand,on a thorough perusal of the entire materials placed on record,the undisputed fact that comes to light is that the minor childis being brought up by the writ petitioner from the date of hisbirth till he was removed from the custody of the writpetitioner by the respondents. Even in his counter affidavit,the father of the child has admitted that the minor child wastaken away by him in his car, further stating that the childaffectionately came to him, but it is not his case that he hastaken the child after informing the writ petitioner, in whosecustody the child was on that day, thereby compelling her tofile a criminal case under Section 363 IPC. Though on the partof the father it has been contended that he purchased theproperty in the name of his deceased first wife for the welfareof his children and only to grab the same, the writ petitioneris resorting to all illegal things, we cannot go into thataspect of the case, since a civil suit and even a petition forthe custody of the child are pending, wherein the parties haveto establish their respective pleas by adducing evidence.17. But, what we want to impress upon in this habeascorpus petition is that when admittedly, the writ petitioner isfostering the minor child as her own son right from the date ofhis birth and is having the custody of the child till 3.4.2009i.e. the date on which the father has taken away the child withhim (as has been admitted by him in his counter affidavit), https://hcservices.ecourts.gov.in/hcservices/ without any order or direction for him to do so in the pendingG.W.O.P.NO.72 of 2007 or in any other legal proceeding andwithout even informing the writ petitioner. It is also to bestressed that at no point of time, the impleading petitionerclaimed custody of the minor child and even after the non-extension of the order of interim injunction granted earlierbeyond 23.10.2007, the father of the child has not taken anystep to have the custody of the minor child by filing anypetition. Instead of making such a claim for the legal custodyof minor child, the father of the minor child has swung intoaction and took away the child on 03.04.2009 without any orderor direction for him to do so in the pending G.W.O.P.NO.72 of2007 or in any other proceeding and without even informing thewrit petitioner. It is also not explained as to why theyounger son was not in the custody of the father, when theelder one is in his custody and how and why the younger son wasallowed to be in the custody of the fostered mother, the writpetitioner. In the peculiar circumstances of the case, asaforestated, and given the desire expressed by the minor child,the conscious of this Court cannot but we touched. At thisjuncture, as a passing remark, we want to mention that it isthe Indian Mythology that foster Mother will love the childmore than even the natural mother. Therefore, for all theabove reasons, we have no hesitation to hold that the writpetitioner is entitled to the custody of the minor child DeepakKumar, of course, subject to the result and other orders to bepassed in G.W.O.P.No.72 of 2007 pending on the file of thePrincipal District Court, Chingleput.18. We make it clear that nothing stated in this ordershall be taken as a binding precedent or a guiding factor bythe Courts below while deciding either the civil suit inO.S.No.406 of 2003 on the file of the Additional Sub Court,Chingleput or the G.W.O.P.No.72 of 2007, pending on the file ofthe Principal District Court, Chingleput, wherein the claims ofboth parties have to be decided on merits and in accordancewith law. The same principle will apply to the case inCr.No.248/2009 of Pallikaranai Police Station, registered forthe offence under Section 363 IPC.19. Therefore, we direct the impleading petitioner/fatherof the child to hand over the custody of the minor child,Deepak Kumar, to the writ petitioner. However, it is open tohim to work out his remedies before appropriate forum inaccordance with law. Accordingly, the Habeas Corpus Petitionis allowed.After dictating the above order in the open Court,the learned Senior Counsel appearing for the thirdrespondent/father has requested the Court to allow the fatherof the minor child, Deepak Kumar, to have the custody of theminor child during weekends, for which course, the writpetitioner has also agreed. Accordingly, the 3rd https://hcservices.ecourts.gov.in/hcservices/ respondent/father of the minor child is permitted to have thecustody of the minor child Deepak Kumar on all Saturdays andSundays and on the early hours of every succeeding Monday, heshall hand over the custody of the minor child Deepak Kumar tothe writ petitioner. The third respondent/father of the childis at liberty to collect the minor child from the custody ofthe writ petitioner either on the night of every Friday or onthe morning of every Saturday. At the cost of repetition, wemake it clear that this arrangement is subject to the resultand other orders to be passed in G.W.O.P.No.72 of 2007, pendingon the file of the Principal District Court, Chengalpattu.bs/RaoSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Inspector of Police, Pallikaranai Police Station, Chennai.2. The Public Prosecutor, High Court, Chennai. 3. The Principal District Judge, Chengalpattu4. The Additional Subordinate Judge, Chengalpattu + 1 cc to Mrs. A.L. Ganthimathi, Advocate, SR No. 17693+ 1 cc to Mr. V. Parthiban, Advocate, SR No.17333H.C.P.No.501 Of 2009GV(CO)SR/15.6.2009