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Judgment
Elipe Dharma Rao, J.—The petitioner has filed this Habeas Corpus Petition for a direction to the respondents to produce the petitioner''s
sister''s minor child viz., Deepak Kumar, Son of Yuvanesh Pradeep Kumar, aged about 8 years, alleged to be in the illegal detention of the 1st
respondent, who is the second wife of the said Yuvanesh Pradeep Kumar, before this Court and hand over the custody of the detenu to the
petitioner.
The case of the petitioner is that the marriage between her sister Sumathi and one Yuvanesh Pradeep Kumar took place on 22.10.1990 and out
of the said wedlock, two children, viz., Manoj Kumar and Deepak Kumar (the detenu herein), were born on 22.01.1992 and 11.10.2000
respectively. It is stated that the father of the children used to work abroad mostly in sea oil field and at that time, the mother and the children used
to live along with the petitioner and her family. According to the petitioner, her sister Sumathi, the mother of the children, died due to cancer on
24.01.2001 and thereafter, the petitioner took care of both the children. It is stated that the father of the children, Yuvanesh Pradeep Kumar,
remarried on 31.03.2004 and took his first son from the custody of the petitioner, leaving the second minor son with the custody of the petitioner
and from the date of birth, the minor child is with her, i.e. for a period of about eight years. According to the petitioner, now, all of a sudden, on
03.04.2009, when the child was returning from School, the 1st respondent, with the help of some bad elements, kidnapped the child and to that
effect, a complaint was lodged before the 2nd respondent police on 04.04.2009, which was registered as a case in Crime No. 248 of 2009 u/s
363 IPC. According to the petitioner, a property measuring 5283 sq.ft. in Survey No. 549/1 at Pallikkaranai Village, stands in the name of the
mother of the children, who handed over the said property to her brother for the welfare of the children and in order to grab the said property, the
father of the children filed civil suit against the petitioner. The petitioner also filed a petition before the Principal District and Sessions Judge,
Chengalpattu, in G.W.O.P.No.72 of 2007 against the father of the minor child under the Guardian and Wards Act for permanent custody of the
child, wherein, an order of injunction was passed in I.A.No.633 of 2007, which was in force till 23.10.2007, and thereafter, it was not extended.
Since no purpose is served by filing the aforesaid complaint, the petitioner has approached this Court by filing the present Habeas Corpus Petition.
After receipt of notice, on 20.04.2009, the father of the minor child along with the child appeared before the Court. We have examined the
child, Deepak Kumar. The child expressed that he is happy with the writ petitioner and her daughter and after spending some time with his father,
he will go back to the writ petitioner. The father of the child sought the permission of the Court to file an impleading petition for impleading him as
party respondent No. 3, and also requested time to file counter affidavit on the ground that the child is with him and he is the natural guardian of the
minor child. Hence, the case was adjourned today.
Today, an impleading petition to implead the father of the minor as party respondent No. 3 in the Hebeas Corpus Petition is filed. We have
ordered the impleading petition. A counter affidavit has also been filed by the 1st respondent.
We have perused the affidavit filed by the 3rd respondent, the father of the minor child, in support of the impleading petition, wherein it is stated
that the habeas corpus petition is filed by making false allegations and he took an objection for not impleading him as a party respondent. It is
further asserted that the minor child is not in the custody of the writ petitioner and the child is in his lawful custody and the child is happy with him
along with his elder brother, Manoj Kumar, aged about 17 years studying XII Standard. It is also stated in the affidavit that the writ petitioner had
filed a false and frivolous complaint against the father of the child in Crime No. 248 of 2008 u/s 363 IPC. on the file of the Inspector of Police,
Pallikaranai Police Station, on 04.04.2009. It is further stated that the father of the petitioner purchased the property in the name of his first wife,
viz., the mother of the minor child and having an eye on the said property, the brother of the mother of the minor child fabricated a Will and
claimed right, title and interest in the said property to the prejudice of the minor children and in order to safeguard the said property and ensure that
the rights of his minor children were not lost, the father of the children filed a suit in O.S. No. 406 of 2003 on the file of the Additional Sub Court,
Chingleput, which was subsequently transferred to the file of Principal District Court, Chingleput and numbered as O.S.No.669 of 2004.
It is stated in paragraph No. 7 of the affidavit by the petitioner, who is the father of the child, that when the child was detained by the writ
petitioner, his second wife used to visit the minor child and provide money to take care of his needs and the writ petitioner did not do anything for
the minor child out of her exertion. It is also averred that the husband of the writ petitioner is always abroad and the writ petitioner is alone at home
and she has a daughter aged about 25 years, who may get married and go to her in-laws house. It is further stated that the writ petitioner is utilising
a portion of the rental income derived from the property of his first wife, which was purchased by him in the name of his first wife, for the minor
child. It is further stated that a petition in G.W.O.P. No. 72 of 2007 for permanent custody of the minor child was filed by the writ petitioner and
an order of injunction was granted initially in I.A. No. 633 of 2007 and thereafter, after entering appearance of the impleading petitioner, the
interim injunction was not extended from 23.10.2007. It is further interesting to note the averment made in paragraph No. 9 of the affidavit filed by
the impleading petitioner that in spite of the fact that the learned District Judge did not extend the order of interim injunction, the writ petitioner
continued to illegally detain the minor child and in spite of his repeated and humble request to hand over the custody of the child to the father of the
child so that the child may have love and affection of the natural father, have the companionship of his elder brother and get to live in his natural
home and society, the writ petitioner did not hand over the custody of the minor child to him. It is also stated in the affidavit that the writ petitioner
herein, with obvious reasons, having an eye on the property and the income derived therefrom to which the minor child would be entitled to,
refused to even allow the father to see the child freely.
On the above stated averments made in the affidavit filed by the father of the minor child, we have heard the learned Counsel appearing for the
petitioner as well as the learned Senior Counsel appearing for the respondents 1 and 3 and the learned Additional Public Prosecutor appearing for
the 2nd respondent.
As seen from the averments made in the impleading petition, it could be gathered that from the date of birth till 03.04.2009, the date on which,
the minor child was allegedly taken away by the first respondent, while he was returning from his school, the child was with the writ petitioner and
to have permanent custody of the child, a petition in G.W.O.P.No.72 of 2007 was also filed praying for permanent custody of the child. Though it
is stated that at the instance of the impleading petitioner, the interim injunction was not extended from 23.10.2007, till the date of 03.04.2009, the
date on which, the minor child was taken away by his father, the child was under the custody of the writ petitioner.
The learned Senior Counsel appearing for the petitioner has submitted that the impleading petitioner, who is the natural father, has got right to
claim custody of the child. But it is an admitted case that the writ petitioner has brought up the child from the date of birth till the date of his removal
from her custody, i.e, 03.04.2009. It is also stated that in order to get benefit over the alleged property, the writ petitioner filed G.W.O.P. No. 72
of 2007 for permanent custody of the minor child. But we are of the opinion that the impleading petitioner has taken away the minor child without
the knowledge of the writ petitioner, when he was admittedly staying with the writ petitioner, only to defeat the writ petition. Though the learned
Senior Counsel has come forward with a contention that purposely the father of the petitioner was not made as a party respondent in the Habeas
Corpus Petition, as he is the natural father and he is entitled to take the child, we are unable to agree with this contention put forth by the learned
Senior Counsel for the simple reason that the case of the petitioner is that the child was forcibly taken by the 1st respondent and not by the father.
It is her case even in the complaint lodged u/s 363 IPC. Therefore, we cannot find fault with the writ petitiner in not impleading the father of the
minor child as a party respondent to these proceedings.
The learned senior Counsel for the third respondent (father) has argued that habeas corpus petition is not the appropriate remedy regarding
custody of the child and therefore, this habeas corpus petition is liable to be dismissed. In support of his contentions, the learned senior Counsel for
the petitioner has relied on the following judgments of the Division Bench of this Court:
i. V. Veerapandian Vs. Kalaiselvi and Another, ;
ii. B. Kamsala v. Bommi and Ors. 2005 1 L.W. (Crl.) 297 and
iii. Subba Reddy v. Commissioner of Police, Greater Chennai, and Ors. (2006) 2 M.L.J. (Crl.) 201.
In the first judgment cited above, when the father of a seven year old minor girl has filed habeas corpus petition alleging wrongful confinement
of the child by his estranged wife, a Division Bench of this Court has held that ''right of natural guardian to have custody of minor child above five
years has to be agitated before proper forum and such right cannot be determined in Habeas Corpus proceedings'' and thus dismissed the habeas
corpus petition.
In the second judgment cited above, the paternal grand mother of the minor child has filed the habeas corpus petition seeking custody of the
minor child from the maternal grand mother of the minor child. A Division Bench of this Court has held the said habeas corpus petition is not
maintainable and further held that the ''right to custody of the minor child should be agitated before the appropriate forum by adducing evidence as
to the interest of the minor child and others''.
In the third judgment cited above also, the father of the minor girl has filed the habeas corpus petition alleging wrongful confinement of his
daughter by his parents-in-law and a Division Bench of this Court has held that habeas corpus petition is not an appropriate forum for such a relief
and has further held that the father is free to move appropriate forum to vindicate his grievance.
All these cases can be factually distinguished. In all the above matters, either the fathers of the minor children or other relatives have
approached this Court under habeas corpus jurisdiction seeking custody of the children, without filing necessary proceedings under the Guardians
and Wards Act before appropriate forums and therefore, the Division Benches of this Court have dismissed such habeas corpus petitions. But, in
the case on hand, for the custody of the child, the writ petitioner, who is the fostered mother of the minor child, has filed G.W.O.P. No. 72 of
2007 before the Principal District Court, Chengalpattu, as against the natural father of the child, and the same is still pending. When admittedly, the
custody of the minor child was taken away by the second wife of the natural father or the natural father himself (as has been averred by him in his
counter affidavit), from the custody of the writ petitioner, without her knowledge and information, left with no option, besides lodging a criminal
complaint for the offence u/s 363 IPC, the writ petitioner has come forward to file this habeas corpus petition, wherein we find no illegality.
Therefore, all the above relied on cases by the learned senior Counsel for the respondents do not apply to the facts of the case on hand.
The learned Counsel for the third respondent further argued that father, being the natural guardian, is entitled to the custody of the child and in
support of his such contentions, the learned senior Counsel has garnered support from the following decisions:
(i) Krishna Raj Vs. Rajasekar and Another, ; and
(ii) T. Kochappi Vs. R. Sadasivam Pillai, .
In both the above matters, arose under the Guardian and Wards Act, 1890, the Division Benches of this Court have held that paramount
importance would be the welfare of minor children and when there is no allegation that the father is acting against the interests of the minor children,
it is not proper to remove him from his guardianship. We have no quarrel with the above well established proposition of law. But, every case has to
be decided on its own facts. In the case on hand, on a thorough perusal of the entire materials placed on record, the undisputed fact that comes to
light is that the minor child is being brought up by the writ petitioner from the date of his birth till he was removed from the custody of the writ
petitioner by the respondents. Even in his counter affidavit, the father of the child has admitted that the minor child was taken away by him in his
car, further stating that the child affectionately came to him, but it is not his case that he has taken the child after informing the writ petitioner, in
whose custody the child was on that day, thereby compelling her to file a criminal case u/s 363 IPC. Though on the part of the father it has been
contended that he purchased the property in the name of his deceased first wife for the welfare of his children and only to grab the same, the writ
petitioner is resorting to all illegal things, we cannot go into that aspect of the case, since a civil suit and even a petition for the custody of the child
are pending, wherein the parties have to establish their respective pleas by adducing evidence.
But, what we want to impress upon in this habeas corpus petition is that when admittedly, the writ petitioner is fostering the minor child as her
own son right from the date of his birth and is having the custody of the child till 3.4.2009 i.e. the date on which the father has taken away the child
with him (as has been admitted by him in his counter affidavit), without any order or direction for him to do so in the pending G.W.O.P. No. 72 of
2007 or in any other legal proceeding and without even informing the writ petitioner. It is also to be stressed that at no point of time, the impleading
petitioner claimed custody of the minor child and even after the non-extension of the order of interim injunction granted earlier beyond 23.10.2007,
the father of the child has not taken any step to have the custody of the minor child by filing any petition. Instead of making such a claim for the
legal custody of minor child, the father of the minor child has swung into action and took away the child on 03.04.2009 without any order or
direction for him to do so in the pending G.W.O.P. No. 72 of 2007 or in any other proceeding and without even informing the writ petitioner. It is
also not explained as to why the younger son was not in the custody of the father, when the elder one is in his custody and how and why the
younger son was allowed to be in the custody of the fostered mother, the writ petitioner. In the peculiar circumstances of the case, as aforestated
and given the desire expressed by the minor child, the conscious of this Court cannot but we touched. At this juncture, as a passing remark, we
want to mention that it is the Indian Mythology that foster Mother will love the child more than even the natural mother. Therefore, for all the above
reasons, we have no hesitation to hold that the writ petitioner is entitled to the custody of the minor child Deepak Kumar, of course, subject to the
result and other orders to be passed in G.W.O.P. No. 72 of 2007 pending on the file of the Principal District Court, Chingleput.
We make it clear that nothing stated in this order shall be taken as a binding precedent or a guiding factor by the Courts below while deciding
either the civil suit in O.S. No. 406 of 2003 on the file of the Additional Sub Court, Chingleput or the G.W.O.P. No. 72 of 2007, pending on the
file of the Principal District Court, Chingleput, wherein the claims of both parties have to be decided on merits and in accordance with law. The
same principle will apply to the case in Cr. No. 248/2009 of Pallikaranai Police Station, registered for the offence u/s 363 IPC.
Therefore, we direct the impleading petitioner/father of the child to hand over the custody of the minor child, Deepak Kumar, to the writ
petitioner. However, it is open to him to work out his remedies before appropriate forum in accordance with law. Accordingly, the Habeas Corpus
Petition is allowed.
After dictating the above order in the open Court, the learned Senior Counsel appearing for the third respondent/father has requested the Court to
allow the father of the minor child, Deepak Kumar, to have the custody of the minor child during weekends, for which course, the writ petitioner
has also agreed. Accordingly, the 3rd respondent/father of the minor child is permitted to have the custody of the minor child Deepak Kumar on all
Saturdays and Sundays and on the early hours of every succeeding Monday, he shall hand over the custody of the minor child Deepak Kumar to
the writ petitioner. The third respondent/father of the child is at liberty to collect the minor child from the custody of the writ petitioner either on the
night of every Friday or on the morning of every Saturday. At the cost of repetition, we make it clear that this arrangement is subject to the result
and other orders to be passed in G.W.O.P. No. 72 of 2007, pending on the file of the Principal District Court, Chengalpattu.