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Judgment
N. Paul Vasanthakumar, J.—This habeas corpus petition is filed by the mother of the detenu by name Monit, aged 13 years, seeking direction to the respondents to produce the minor detenu before this Court and hand over his custody to the petitioner. The case of the petitioner is that on 29.4.1998 she got married to one Kumar of Sivankoil, Nedunkudi, Pudukkottai District and after marriage they shifted to Bangalore; that the detenu Monit was born on 2.3.1999; that on 12.5.2004 petitioner''s husband Kumar died and thereafter the petitioner along with the detenu Monit stayed with her in-laws; that later on petitioner''s mother-in-law and father-in-law also expired; and that, thereafter petitioner and the minor detenu Monit are living with the mother of the petitioner by name Kalyani.
It is the further case of the petitioner that on 3.12.2011 respondents 2 and 3 kidnapped the minor detenue Monit and the petitioner made a complaint to the police, which was registered as Crime No. 4/2012 on the file of Aranthangi Police Station u/s 365 IPC. As no action was taken by the first respondent on the said complaint, petitioner has filed this habeas corpus petition, which was admitted on 13.12.2011.
On 19.1.2012, the paternal uncle, the third respondent herein produced the detenu Monit before this Court. After hearing bothside parties, on 19.1.2012, we have passed an interim order, which reads as follows:
Mr. P. Thirumahilmaran, learned Counsel undertakes to file vakalat for the third respondent and to file counter. The petitioner and the detenu -K. Monit are present. The detenu is a minor, who studied upto 6th standard in S.B.O.A. Matric and Higher Secondary School at Chennai. The petitioner, who is none other than the mother of the detenu, has produced the receipts issued by the said school showing the fee paid by her on 24.5.2011. The petitioner has stated that she is employed in a B.P.O. Company in Chennai and she is earning Rs.25,000/- per month.
Taking note of the above, the custody of the detenu -K. Monit is directed to be handed over to the petitioner till 23.1.2012. The detenu and the petitioner shall reside at Kottai First Street, Aranthangi, Pudukkottai District. The first respondent police is directed to give protection to the petitioner and the detenu.
Registry is directed to post this matter on 23.1.2012.
In compliance with the said order, when the case came up for hearing today, petitioner, third respondent and the detenu Monit are present before this Court.
The learned counsel for the petitioner submitted that the petitioner is the natural guardian of the detenu and has sufficient means to look after the welfare of her minor son/the detenu herein. The learned counsel also submitted that the third respondent is blessed with two children.
The learned Senior Counsel appearing for the third respondent submitted that the views of the detenu, who is aged 13 years may be ascertained and if the detenu is willing to go with his mother, the petitioner herein, the third respondent will not have any objection to send the detenu along with the petitioner. The learned Senior Counsel also submitted that the respondents 2 and 3 send money to the petitioner for paying school fee, etc.
This Court ascertained the wish of the detenu, who has categorically stated in the open Court that he is willing to go with his mother, the petitioner herein, who is now living with her mother Kalyani. The above said submissions of the learned Senior Counsel for the third respondent as well as the minor detenu Monit are recorded.
While considering the guardianship of the minor, welfare of the minor shall be the paramount consideration of the Court.
In a writ of habeas corpus, the question as to whether custody of a child can be ordered to be given, was considered by the Supreme Court in the decision in Syed Saleemuddin Vs. Dr. Rukhsana and Others, . The Supreme Court, noticing the welfare of the child, ordered the custody of two children to remain with the mother on the ground of welfare of the children. In paragraphs 10 and 11 of the said judgment, it has been held as under:-
10.... This Court further held that in issuing writs of habeas corpus the courts have power in the case of an infant to direct its custody to be placed with a certain person.
From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of habeas corpus for custody of minor children the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. Unfortunately, the judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother....
In the decision reported in (2010) 1 SCC 174 (V. Ravi Chandran (Dr.)(2) v. Union of India), the Supreme Court held that the jurisdiction under Articles 32 and 226 of the Constitution of India can be invoked in a given case for the production of the minor child, and appropriate direction can be given.
A Full Bench of this Court in the decision in T. Sivakumar v. The Inspector of Police, Thiruvallur Town Police Station, reported in 2011 (5) CTC 689, in paragraph-57 Clause (iv), held that in a Habeas Corpus Proceeding, while granting custody of a minor girl, the Court shall consider the paramount welfare including the safety of the minor girl notwithstanding the legal right of the person who seeks custody and grant of custody in a Habeas Corpus proceeding shall not prejudice the legal rights of the parties to approach the Civil Court for appropriate relief.
In the following decisions,
(i) Rajesh K. Gupta Vs. Ram Gopal Agarwala and Others,
(ii) Nil Ratan Kundu and Another Vs. Abhijit Kundu,
(iii) Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam, and
(iv) Ruchi Majoo Vs. Sanjeev Majoo, , the Supreme Court held that while deciding the custody, interim or permanent, the welfare of the child should be the paramount consideration. In Nil Ratan Kundu and Another Vs. Abhijit Kundu, , guidelines are given by the Supreme Court to decide the guardian of a minor in paragraph-52 which reads as under:
In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child''s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.
The petitioner being the natural guardian and she having sufficient means, and being affectionate with her son, this Court is of the firm view that the petitioner is entitled to get custody of the detenu. Further, the third respondent is unable to point out any disqualification towards the petitioner for not getting custody of her son/the detenu, aged 13 years.
The learned Senior Counsel for the third respondent submitted that the petitioner may be directed to withdraw the complaints made by her against the respondents 2 and 3. When this Court asked as to whether the parties can settle the issue amicably without making further issue on the custody of the detenu, the learned Senior Counsel for the third respondent as well as learned counsel for the petitioner agreed for filing separate Affidavit of Undertaking. Accordingly, the petitioner as well as the third respondent filed separate Affidavit of Undertaking.
The Affidavit of Undertaking filed by the third respondent reads as follows:
I Vasudev, S/o. Late K. Muthu, Hindu, aged about 35 years, residing at 76/B, 5th cross, T.R. Nagar, Bangalore-560028, temporarily come down to Madurai, do hereby solemnly affirm and sincerely state as follows:
I am the third respondent herein and as such I am well acquainted with the facts and circumstances of the case.
I respectfully submit that I undertake that I will not interfere with the custody of Minor Monith with mother in future and thus render justice.
The Affidavit of Undertaking filed by the petitioner reads as follows:
I, Rajani Kumar, w/o. Kumar, Hindu, aged about 31 years, residing at Kottai 1st Street, Aranthangi, Pudukkottai District, now temporarily come down to Madurai, do solemnly affirm and sincerely state as follows:
I am the petitioner herein and as such I am well acquainted with the facts and circumstances of the case.
I respectfully submit that the 3rd respondent herein gave undertaking that he will not interfere with the peaceful life of myself and my son the detenu in the present H.C.P., hence I am herewith giving undertaking to withdraw the complaints given before the 1st respondent police as against the respondents 2 and 3 on 3.12.2011 and 7.12.2011.
It is therefore prayed that this Hon''ble Court may be pleased to record my statement of undertaking and pass such further or other orders as this Hon''ble Court may deem fit and proper in the circumstances of the case and thus render justice.
The said Affidavits of Undertaking filed by the third respondent as well as petitioner are recorded. This habeas corpus petition is disposed of directing custody of the minor detenu Monit (aged 13 years) with the petitioner.