R. Karpagam vs The Inspector of Police, The Commissioner of Police and Mariammal

R. Balasubramanian, J.—The petitioner is before this court in the Habeas Corpus jurisdiction for a direction to the respondents to produce

her minor child namely, R. Vasanthakumar, aged about three years. In the affidavit itself, there is an averment that the petitioner has given birth to

seven children, out of her wedlock with her first husband; her first husband deserted her; thereafter she joined the fold of Sri. Ranjith; they as such

could not maintain the seven children born to the petitioner through her first husband; she had given birth to a male child through Ranjith and in the

above stated circumstances - poverty being the predominant factor, her child through her second husband was handed over to the third respondent

for being maintained, till such time the petitioner is in a position to take back the child. The affidavit proceeds to state that as on date, since the

petitioner is in a position to take the child into her fold, she want to take back. The third respondent is represented by a counsel. We examined the

third respondent, who is present with the child. Her case is that when the child in issue was hardly ten days old, the petitioner was about to drown

him in a lake; she was present at that site and since she did not have a male child at all, she wanted to give the child to be given in adoption to her,

so that she would maintain the child for the rest of her life. According to her, the petitioner accepted that offer; took some money and then legally

handed over the child to her. The third respondent would state that she named the child as Srinivasan. The petitioner and the third respondent are

admittedly illiterate and living below poverty line.

There is no dispute that on one of the earlier hearings (one of us namely, M. Thanikachalam, J was constituting the quorum of the Bench) the

petitioner was permitted to approach the child in open court to take custody and the child raised a hue and cry on he going to the fold of the

petitioner. In other words, the child resisted the attempt made by the petitioner to take him into her custody. Mr. T. Karunakaran, learned counsel

appearing for the petitioner would affirm that the child cried when he came into the hands of the petitioner.

In such circumstances and having regard to the tender age of the child namely, three years, we are bound to have the welfare and good being of

the child utmost in our mind in deciding the case one way or the other. Admittedly, the petitioner claims to have parted with the custody of the child

when he was ten days old and it is the case of her counsel that she was refused earlier her right to visit the child at all times when she made a

request. Therefore it is clear and it cannot be ruled out that the child would not be remembering the petitioner''s face as his mother. The fact that

the child has been continuously living with the third respondent from the time when he was ten days old, cannot be lost sight of and there cannot

any doubt that during such long stay, the child would have developed love and affection for respondent No. 3. Under these circumstances,

exercising the power of writ of Habeas Corpus, if the custody of the child concerned in this case is given to the petitioner, the emotional turmoil,

which the child may undergo due to change of atmosphere namely, from the custody of respondent No. 3 to the custody of the petitioner, would

have to be necessarily borne in mind by this court in deciding the case. The welfare and good being of the child is the utmost criterion to exercise

the power of writ of Habeas Corpus. Therefore, we have to necessarily state that this is not a fit case where a writ can be issued. In other words,

we have no doubt at all that if the custody of the child is given at the moment to the petitioner, then the sufferer would be only the child, both

mentally and emotionally, which we want to avoid. Under these circumstances, we are not inclined to issue a writ of Habeas Corpus as prayed for.

Accordingly, the Habeas Corpus Petition is dismissed. However liberty is given to the petitioner to work out her rights in a manner known to law

before the competent civil forum.