IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-6-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU HCP No.705 of 2008 V.Sadagoban .. Petitioner vs 1.The State of Tamilnadu rep. By its Secretary to Government Home Department, Secretariat, Chennai 9. 2.The Deputy Inspector General of Police Salem, Salem District. 3.The Additional Superintendent of Police (Crime), Namakkal Namakkal District. 4.K.Prabaharan .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus to direct the respondents to produce the body and set him at liberty viz. Nimiz Prabharan before this Court. For Petitioner : Mr.Jayaraman Senior Counsel for Mr.G.Elanchezhiyan For Respondents : Mr.M.Babu Muthu Meeran Additional Public Prosecutor for RR1 to 3 Mr.R.Karthikeyan for M/s.Sairaj Associates for R4 https://hcservices.ecourts.gov.in/hcservices/ ORDER (Order of the Court was made by M.CHOCKALINGAM, J.) Seeking a writ of habeas corpus for the custody of a minor child aged 8, the petitioner grandfather has brought forth this petition. 2.The affidavit in support of the petition is perused. The Court heard the learned Counsel for the petitioner, the learned Counsel for the fourth respondent, the father of the minor child, and also the learned Additional Public Prosecutor for the State. 3.Concededly, the marriage between the daughter of the petitioner and the fourth respondent took place, and thereafter, they were actually residing at U.S.A. While they were carrying on the matrimony, a male child was born, and now, the child is 8 years old. Due to the disturbance in the matrimony, they were living apart for sometime. She moved the American Court for the custody of the child, where an order was passed transferring the child from the custody of the father to the mother. 4.According to the petitioner, while the said order was in force, the fourth respondent father came to India, and actually, the child was in the custody of the fourth respondent, and while the matter stood thus, the daughter of the petitioner came over to his house on 4.5.2008 to attend a function, where she was able to see the child, and thereafter, the child was taken by the fourth respondent, and instead of handing over custody of the child to the petitioner's daughter, he took the child, and she was also to leave for U.S.A., and accordingly, she left. Under the circumstances, this petition was moved by the petitioner who is the father of the wife of the fourth respondent. 5.Advancing arguments on behalf of the petitioner, the learned Senior Counsel Mr.Jayaraman would submit that the child is now 8 years old; that the custody of the child has actually been ordered in favour of the petitioner's daughter by the American Court; that the fourth respondent in obedience of the order, should have handed over custody; but, he has taken the child to India; that when she came over to India, he should have handed over the custody; that even then, he did not do so; that the interest of the child is paramount; that since the natural guardian is the mother, the child has got to be brought up by her; that for that purpose, custody has got to be handed over to the petitioner, who, in turn, would send the child to USA where she is living, and under the circumstances, orders have got to be passed. https://hcservices.ecourts.gov.in/hcservices/ 6.The Court heard the learned Additional Public Prosecutor for the respondents 1 to 3 and also the learned Counsel for the fourth respondent. 7.At the time when the matter was argued, the decision of the High Court of Kerala reported in AIR 1970 KERALA 1 (MARGGARATE V. CHACKO) was relied on by the learned Senior Counsel for the petitioner. 8.After looking into the materials available and hearing the rival submissions, this Court is of the considered opinion that it is not a fit case where a writ of habeas corpus as one asked for, could be issued for more reasons than one. Now, as on today, admittedly, the petitioner's daughter is in U.S.A. Though it is urged that an order transferring custody of the child from the fourth respondent to the petitioner's daughter was passed by the American Court, it was actually not put in execution. It is true that an order passed by the competent Court in America in respect of the custody of the child, has got to be respected. But, the decision relied on by the learned Senior Counsel for the petitioner and referred to above would make it clear that that petition was made by the mother and none else. In the case on hand, the petition has been brought forth by the grandfather. Admittedly, she is the wife of the fourth respondent. The circumstances would require that a petition if at all to be filed, should be filed by her. No complaint is made in the course of the affidavit why the custody of the child should not be with the father. Unless and until any specific complaint is made, this Court is unable to appreciate the contention that for the welfare of the child, transfer of custody should be made. Apart from that, so long as it is not made, and no grievance is ventilated by the mother of the child who is the daughter of the petitioner herein, this Court is unable to appreciate the contentions now coming from the mouth of the grandfather, the petitioner herein. Under the circumstances, this Court is of the opinion that the custody as asked for by the grandfather of the child, cannot be ordered. There cannot be any impediment for the petitioner's daughter who is the mother of the child, to approach this Court with necessary allegations if so advised. 9.With the above observation, this habeas corpus petitions is disposed of. Nsv/ Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Secretary to GovernmentThe State of Tamilnadu Home Department, Secretariat, Chennai 9. 2.The Deputy Inspector General of Police Salem, Salem District. 3.The Additional Superintendent of Police (Crime), Namakkal Namakkal District. 4.The Public Prosecutor High Court, Madras. • 1 cc to M/s. Sai Raj Associates, Advocate SR No. 29416 • 1 cc to Mr. G. Elanchezhiyan, Advocate SR No.29752 HCP No.705 of 2008 JSV(CO) SR/20.6.2008 https://hcservices.ecourts.gov.in/hcservices/