G. Hari Padma vs G. Sridhar and Others

Motilal B. Naik, J

This is a writ petition filed under Article 226 of the Constitution of India for issuance of a writ of Habeas Corpus to direct the respondents to produce Vamsee Krishna, the son of the petitioner, aged 6 months, before this Court and to deliver the custody of the child to her.

At the threshold itself we have heard Smt. C Jayashree Sarathy, learned Counsel appearing on behalf of the petitioner. Learned Counsel tried to persuade us by contending that a writ of Habeas Corpus could still be entertained by this Court for causing production of the child before this Court and after due enquiry the Court can grant custody of the child to the petitioner keeping in view the paramount welfare of the child. In support of her submission she cited the decision of the Supreme Court in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, . Relying on the principle laid down by the apex Court in the above decision, the learned Counsel contended that the respondents could be directed to be present in Court bringing the child and the custody of the child could be handed over to the petitioner being the natural mother.

It is no doubt true that the Courts have held that while granting custody of the minor child, the Courts arc to take into consideration the paramount interest of the minor child. In this case the child is said to beabout six months old. In the decision cited before us, the Apex Court lias held that the dismissal of the Writ Petition which is filed for Habeas Corpus is incorrect inasmuch as the Courts held that unless there is an enquiry as to whether the petitioner is entitled to the custody of the minor children, the High Court ought not to have dismissed the Writ Petition. While holding so, the Supreme Court directed the District Judge concerned to make an enquiry and give a finding as to who is entitled for the custody of the minor children,

In the back ground of the view expressed by the Supreme Court, we are ofthe view that in order to find out the paramount interest of the minor child, on the basis of evidence alone the question could be resolved. Since this Court is not able to make an enquiry, we permit the petitioner to move the appropriate forum by filing such application seeking custody of the minor child and on such application being filed, this Court shall enquire into the matter and decide the relief sought in the petition as expeditiously as possible.

In the view we have taken, the Writ Petition is disposed of.