Dr. G. Veeralakshmi vs State of Tamilnadu and Srinivasagam

S. Nagamuthu, J.—The petitioner is the wife of the fourth respondent. They have got a child, by name, Rakitha Rai Melkiba, who is now aged 7 years. The petitioner and the fourth respondent are living separately due to some matrimonial dispute between them. Admittedly, the petitioner filed Crl. M.P. No. 1010 of 2008 on the file of the learned Judicial Magistrate No. 2, Virudhunagar u/s 23(2) of the Protection of Women from Domestic Violence Act, 2005, seeking a direction to the fourth respondent herein to entrust the custody of the child (hereinafter referred to as "detenue") to the petitioner for safe custody. The said petition was contested by the fourth respondent herein before the learned Judicial Magistrate No. 2, Virudhunagar. Having considered the rival contentions, the learned Judicial Magistrate, by an order dated 20.5.2008 allowed the petition and directed the fourth respondent to hand over the custody of the child to the petitioner for safe custody. The fourth respondent being aggrieved by the said order, filed an appeal against the same in C.A.No. 49 of 2009 before the learned Principal Sessions Judge, Virudhuangar at Srivilliputhur. The petitioner herein appeared before the learned Sessions Judge and contested the case. By judgment dated 16.11.2009, the learned Principal Sessions Judge, Virudhunagar, dismissed the appeal thereby confirming the order of the learned Judicial Magistrate No. 2, Virudhuangar. As against the same, now it is submitted by the fourth respondent that he has filed a Revision in Crl.R.C.(MD)No. 176 of 2010 and the same is pending before this Court. It appears that the petitioner herein has not made appearance in the Criminal Revision Case. So far, this Court has also not granted any interim order in the Criminal Revision Case in favour of the fourth respondent herein. The Criminal Revision Case is still pending.

It is also submitted by the fourth respondent that in the mean while, the petitioner has filed a petition in Guardian OP No. 29 of 2011 before the District Court, Theni, declaring that she is the natural guardian of the detenue. But no petition has been filed seeking interim relief in the said Guardian OP. The Guardian OP is also pending.

In these circumstances, the petitioner has come up with the present Habeas Corpus Petition seeking a direction to the respondents 1 to 3 to secure the custody of the detenue and to hand over custody of her to the petitioner.

In pursuance of the notice issued, the fourth respondent has appeared before this Court today and he has also produced the detenue/child. He is represented by Mr. Veera Kathiravan, learned counsel.

On enquiries, it came to light that no interim order has been granted in respect of the custody of the detenue in the Guardian OP filed on the file of the District Court, Theni. Similarly, the order granting custody of the detenue in favour of the petitioner has not been stayed by means of any interim order of this Court in the Criminal Revision Case. When it was pointed out that the fourth respondent needs to obey the order passed by the Judicial Magistrate No. 2, Virudhunagar and confirmed by the appellate Court, the learned counsel for the fourth respondent submitted that the final question regarding the custody of the detenue will be agitated by the fourth respondent before the Revisional Court.

The learned counsel for the fourth respondent would submit that without going into the factual as well as legal issues involved in this matter, the fourth respondent is prepared to give visitation rights to the petitioner on all Sundays. He would further state that this offer is without prejudice to his contention before the other forums where the Guardian OP and Criminal Revision Case are pending.

The petitioner though initially insisted for custody of the child for ever with her, later on, on the advice of her counsel, Mr. K. Govindarajan, she would state that she is agreeable for the above interim arrangement. The learned counsel, Mr. K. Govindarjan, would submit that it may be made clear that this interim arrangement is being ordered on the offer made by the fourth respondent and therefore, this shall not have any bearing in the other pending proceedings, namely, Guardian OP and Criminal Revision Case. The said statement is recorded.

In view of the rival submissions made, without going into the issues both legal and factual, we are inclined to dispose of this Habeas Corpus Petition on the following terms:

(i) On all Sundays, as agreed upon between the parties, the fourth respondent shall produce the detenue/child at 10.00 a.m., at the office of the learned counsel, Mr. Veera Kathiravan, at Madurai. Mr. Veera Kathiravan, under take to hand over the child to Mr. K. Govindarajan, the learned counsel appearing for the petitioner.

(ii) Mr. K. Govindarajan, the learned counsel or one of his juniors, may accompany the petitioner to take the custody of the child.

(iii) The child will be kept either in the office of Mr. K. Govindarajan, or in and around his office and in any event, the child shall not be taken out of the said area for any purpose. The petitioner shall not cause any harm to the child.

(iv) At 5.00 p.m., Mr. K. Govindarajan, the learned counsel or any one of his juniors will take the child accompanied by the petitioner and hand over the child to Mr. Veerakathiravan, the learned counsel, at his office, from where the fourth respondent will be at liberty to take the child into his custody.

It is made clear that this interim arrangement is based on agreement between the parties and the same has not been passed on merits. Therefore, this interim arrangement will not have any bearing in other proceedings like the Criminal Revision Case or Guardian OP or in any other matrimonial proceedings. This interim arrangement will be in implementation from 25.12.2011 (Sunday) onwards. Parties will be at liberty to agitate their respective cases before the other forums in the manner known to law uninfluenced by any of the observations/directions issued. This interim arrangement will be in force until any interim order or final order is passed by any forum either in the Criminal Revision Case or in the Guardian OP or in any other matrimonial proceedings. Accordingly, the Habeas Corpus Petition stands closed.