1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.11.2011 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU HABEAS CORPUS PETITION(MD).No.1064 of 2011 and M.P.No.1 of 2011 S.Jeyakannan : Petitioner Vs. 1.J.Rathi Devi 2.The Inspector of Police, All Women Police Station, Theni 625 531. : Respondents PRAYER: Petition is filed under Article 226 of the Constitution of India to direct the respondents to produce the body of the minor J.Harini, aged 9 years, now detained at No.3/8/123, Perumal Koil Street, Lakshmipuram – 625 523, Theni District, before this Court and set her at liberty so as to enable the petitioner to take care of the detenue Minor J.Harini in accordance with law. For Petitioner : Mr.S.Subbiah For Respondent 2 : Mr.A.Ramar, Additional Public Prosecutor O R D E R [Order of the Court was made by S.NAGAMUTHU, J] The petitioner is the father of the minor child, by name J.Harini, aged nine years. The first respondent is the mother of the child. According to the petitioner, earlier, there was a matrimonial proceeding pending between the parties in H.M.O.P.No.374 of 2008, on the file of the Family Court, Madurai. The said proceeding was initiated by the petitioner for divorce on the ground of cruelty. It is alleged in the affidavit filed in support of the Habeas Corpus Petition that subsequently, since a compromise was effected between them, the said H.M.O.P.No.374 of 2008 was withdrawn. It is also averred in the affidavit that the first respondent, on her part also, filed M.C.No.2 of 2008, under Section 12 of the Protection of Women From Domestic Violence Act, 2005 and the same was also withdrawn, in view of the compromise reached between the parties. Subsequently, according to the petitioner, the minor child was all along in the custody of the petitioner. While so, the child was taken by the mother and now, the child is kept by the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 2. It is also averred that over phone, the child informed the petitioner that she was treated with cruelty. It is also stated in Paragraph No.10 of the affidavit that subsequent to the above developments, the petitioner has filed yet another proceedings in H.M.O.P.No.536 of 2011, before the Family Court, Madurai, for divorce and the same is pending. In those circumstances, alleging that the child, by name, J.Harini, has been illegally detained by the first respondent, the petitioner has come up with the present Habeas Corpus Petition. 3. We have heard the learned counsel for the petitioner and we have also perused the records carefully. From the narration of the facts, as made above, it is crystal clear that matrimonial proceeding is pending between the parties before the Family Court, Madurai. When the said proceeding is pending, if at all the petitioner has got any right to have the custody of the child, he could have worked out his remedy by approaching the said Court. Instead of doing the same, the petitioner has rushed to this Court. This, in our considered opinion, cannot succeed. 4. But, the learned counsel for the petitioner would submit that having regard to the paramount interest of the child, this Habeas Corpus Petition should be entertained. However, we are not persuaded by the said contention raised by the learned counsel for the petitioner. Whether the interest of the child would best be served by keeping the child in the custody of the mother or in the custody of the father is a question to be decided by a Competent Civil Court. In a Habeas Corpus Petition, this Court cannot go into the said question. If it is a case, where the child is detained illegally by any third party, certainly, this Court would interfere with the same. However, in the case on hand, it cannot be stated that the custody of the child is illegal. When that be so, in our considered opinion, going by the facts and circumstances of the case, more particularly the fact that H.M.O.P.No.536 of 2011 is pending before the Family Court, Madurai, we are of the firm view that this Habeas Corpus Petition cannot be entertained, as the petitioner is not entitled for any relief in this Habeas Corpus Petition. Therefore, this Habeas Corpus Petition is dismissed. We make it clear that any observation, which we have made in this order, shall not cause any prejudice to any of the parties, when they make claim for custody of the child before the competent Civil Court. Consequently, connected Miscellaneous Petition is also dismissed. Sd/- Deputy Registrar (Writs) /True Copy/ Assistant Registrar NB To 1.The Inspector of Police, All Women Police Station, Theni 625 531. 2.The Addl. Public Prosecutor, Madurai Bench of Madras High Court,Madurai. DM:2011:DEC:07:: ORDER MADE IN HABEAS CORPUS PETITION(MD).No.1064 of 2011 18.11.2011 2P:3C:; https://hcservices.ecourts.gov.in/hcservices/