1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.3.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P(MD)No.84 of 2011 Bimala Anal W/o.Suresh, 77-B RPSF Kajamalai, Trichy. .. Petitioner vs. 1.State represented by The Inspector of Police, All women Police Station, Cantonment, Trichy District. 2.Suresh 3.Raju 4.Ganeshwari 5.Jegadheesh 6.Sathishkumar .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the first respondent to produce the body of detenu named minor S.Vijay, S/o.Suresh aged 5 years who is in the illegal confinement of the second to sixth respondents and hand over the custody to the petitioner. For petitioner : Mr.V.Manoharan For respondents : Mr.P.N.Pandidurai For RR1 : Addl.Public Prosecutor For RR2 to RR6 : Mr.C.Vakeeswaran ORDER (Order of the Court was made by S.RAJESWARAN,J) This petitioner, who is the mother, filed this petition for tracing her son Vijay, the detenu, who is five years old, said to be in the illegal custody of respondents 2 to 6. She belongs to Manipur and her father is working as Head Constable in Southern Railway, Trichy. Her husband belongs to Tamil Nadu and their marriage was a love marriage and the same was opposed and therefore both of them eloped to Coimbatore and https://hcservices.ecourts.gov.in/hcservices/ 2 the marriage was solemnized on 15.07.2005. A son was born on 05.10.2006. Thereafter there was a misunderstanding between them, and her husband went to Goa for work and because of the persistent misunderstanding between the petitioner and her husband, her husband's parents persuaded her to give divorce to him and also to have him married to somebody else. Thereafter she along with her husband and the child came to Trichy and lived with her parents. It is the contention of the petitioner that the second respondent/husband treated her cruelly and their life was miserable. Thereafter he left her and went to his parents place leaving her and her child. However, in the month of September 2010, the respondents 2 to 6 trespassed into their house and took away the son Vijay. A complaint has been given to the respondent police and since no action has been taken, the petition has been filed. 2. The second respondent is her husband and respondents 3 and 4 are in-laws and the respondents 5 and 6 are the brother-in-laws of the petitioner herein. Now, the detenu-son is said to be in the custody of the respondents 3 to 6 and her husband is not living with them and he is living with his new wife somewhere. 3. On notice, the respondents 2 to 6 entered appearance through a counsel and they have filed their counter. The case of the respondents is that after at the marriage between the petitioner and the second respondent on 15.07.2005 and the birth of the child on 05.10.2006, the petitioner left the house on her own. The child is a sick and suffering from fits. Now, the minor child is in the custody of the husband/second respondent and he is studying in L.K.G. and the second respondent is taking care of his child's treatment also. Moreover, it is the case of the second respondent that a petition for divorce in HMOP No.93 of 2011 has been filed before the Principal Sub Court, Trichy against the petitioner and an application has also been filed in GWOP No.21 of 2011 before the District Court, Trichy for guardianship of the minor child Vijay. Now, the case has been transferred to Fast Track No.I, Trichy and the same is pending. 4. Today, we have heard the learned counsel for the petitioner and the learned counsel for the respondents 2 to 6. We have also heard the learned Additional Public Prosecutor appearing for the respondent police. 5. The second respondent-husband of the petitioner is produced before this court along with the minor child, Vijay, who is in the custody of his father/second respondent. Admittedly, the child has been with the father from September 2010 and he is also taking care of the welfare of the child. Moreover, a divorce petition has also been filed by the second respondent before the Principal Sub Court, Trichy and GWOP has also been filed before the District Court, Trichy, which was subsequently transferred to Fast Track Court No.I, Trichy for guardianship of the minor child. Therefore, it is our view that there is no illegal custody of the minor child by the second respondent husband and the child has been with the second respondent since September 2010. The issue as to whether the child is to be continued with the second respondent/husband or to be given to the petitioner/mother could be decided before the appropriate forum, where a petition for guardianship of the minor child has been filed by the second respondent. Admittedly, HMOP filed by the second respondent/husband is pending. Therefore, https://hcservices.ecourts.gov.in/hcservices/ 3 pending final adjudication of these two cases, it is not for this Court to decide with regard to the interim custody, what has been sought for by the petitioner herein in this petition. Now the question is whether the child is under the illegal custody of the petitioner's husband/second respondent or not. But taking note of the fact that the child is admittedly with the second respondent from September 2010 and he is also taking care of his interest and the custody of the minor child can never be termed as illegal. Therefore, in the given facts, we do not find any merit in this petition and the petition stands dismissed with a direction to the petitioner to work out her remedy in the cases pending before the appropriate forum. In the result, the Habeas Corpus Petition stands closed. RR Sd/- Assistant Registrar[CO] /True copy/ Sub Assistant Registrar To 1.The Inspector of Police, All women Police Station, Cantonment, Trichy District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 cc to Mr.C.Vakeeswaran, Advocate SR.No.8276. +1 cc to Mr.V.Manoharan, Advocate SR.No.7975. H.C.P.(MD)No.84 of 2011 Dated:24.3.2011 3P/5C RPB 18.04.2011 https://hcservices.ecourts.gov.in/hcservices/