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Judgment
M. Karpagavinayagam, J.—The prayer in this petition is, for a direction to fourth respondent, to cause production of the body and person of
Darrius Samuel John, minor, aged about three years, who is now under the illegal custody of first respondent, who is residing at Muscat, Sultante
of Oman.
According to the petitioner, she was married to John Samuel Jayachandran, first respondent herein, on 24.08.2001. On 21.04.2002, she gave
birth to a male child, who was named as Darrius Samuel John. Her husband/first respondent got a job in a Government Hospital at Muscat and left
India in January,2003 and, thereafter, he came to India on 12.01.2005, for attending his relative''s marriage. When her mother asked her mother-
in-law as to when she would be taken to Muscat, her mother-in-law told that there was no chance of her joining with the husband. On
02.02.2005, when she woke up from the bed, she was shocked to see that her child was missing. She came to know that her mother-in-law and
husband took the child to a hospital, saying that she had administered poison to the child and also taken sleeping tablets, for committing suicide.
Sometime later, she came to know, that on 10.03.2005, her husband had left to Muscat, along with the child. Hence, she has come forward with
this Habeas Corpus Petition, to direct the first respondent, who is at Muscat, to produce the child.
When this matter had come up before this Court on 29.03.2005, we questioned the learned counsel for the petitioner, whether this Habeas
Corpus Petition is maintainable, when the child is in the custody of father, who is at Muscat. With regard to that, the learned counsel wanted time
to produce some citations. Accordingly, the matter was adjourned. Again, when the matter came up for hearing on 06.04.2005, the learned
counsel would cite Mohd. Ikram Hussain Vs. State of U.P. and Others, ; Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, and Dr.
(Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, .
We have carefully considered the submissions made by the learned counsel for the petitioner and also gone through the citations.
In Mohd. Ikram Hussain Vs. State of U.P. and Others, , the Supreme Court ordered in a Habeas Corpus Petition to release the petitioner''s
wife from the unlawful detention of her father and for delivery of the said wife to the petitioner. This order was made on the basis of the finding that
the wife of the petitioner, a major, was unlawfully detained by her father, against her will.
In Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, , a question was considered, as to whether under Article 32 of the Constitution
of India, the production of the body of the person, alleged to be unlawfully detained, is an essence, before the application for a writ of habeas
corpus can be finally heard and disposed of by the Court. As such, the issue relates to the power of the Supreme Court, under Article 32 of the
Constitution of India, to give a direction to produce the body of the person, unlawfully detained.
The other decision in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, would show, that there is an observation, that in matters
regarding the custody of the minor child, the paramount consideration is the welfare of the minor child and not the legal right of this or that
particular party.
Thus, all the above decisions would not go into the question raised by this Court, with reference to the maintainability of the petition. On the
other hand, even according to the petitioner, allegations were levelled against her by her husband and in-laws that she attempted to kill the child by
administering poison and to commit suicide. Hence, the child was taken by the husband of the petitioner to Muscat, in order to save the child from
the hands of the petitioner.
Under those circumstances, especially when there is no material to show that the child is in unlawful detention of the husband and that the said
unlawful detention of the child by the husband is within the jurisdiction of this Court, we cannot entertain this H.C.P.
Habeas Corpus Petition is dismissed.