IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 W.P.(Crl.).No. 382 of 2008(S) PETITIONERS: ----------------------- 1. VIJU P. JOHN PLAKKAL HOUSE, VENGINISSERY DESAM, THRISSUR DISTRICT. 2. SRI.C.A.POULOSE, CHACKALACKAL HOUSE, KUREECHIRA, UNITY ROAD, THRISSUR. 3. SMT. LALITHA POULOSE, W/O. C.A. POULOSE, CHACKALACKAL HOUSE, KUREECHIRA, UNITY ROAD, THRISSUR. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.M.P.ASHOK KUMAR RESPONDENTS: -------------------------- 1. ADV. BABY JOHN, S/O. DEVASSY, PALLIKUNNATH HOUSE, VIYYUR P.O. THRISSUR DISTRICT. 2. HONEY @ HARITHA (MINOR CHILD), D/O. VIJU P. JOHN AND LATE SUNITHA, NOW UNDER THE ILLEGAL CUSTODY OF THE 1ST RESPONDENT. 3. THE STATION HOUSE OFFICER, VIYYOOR POLICE STATION, THRISSUR DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1-2 SRI.T.C.SURESH MENON FOR R1-2 SRI.JIBU P THOMAS FOR R1-2 SRI.P.S.APPU FOR R1-2 PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl)No.382 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of January, 2009 JUDGMENT Basheer, J: 1. A minor girl, aged 13 years is unwittingly caught in a legal cross fire exchanged between her father and step father. 2. The prayer in this petition filed under Article 226 of the Constitution of India is to issue a writ of habeas corpus commanding the step father (respondent No.1) to produce the minor girl from his illegal detention and to hand over her custody to petitioner No.1, her father. 3. The question that has cropped up for consideration is : Are “custody parameters” in relation to custody of a minor alien or taboo to a “habeas corpus jurisdiction” under Article 226 of the Constitution? 4. A brief reference to some of the essential facts leading to this imbroglio is necessary to consider the question whether any relief can be granted to petitioner No.1 as prayed for. 5. Petitioner No.1 had married Sunitha, daughter of petitioners 2 and 3 in January 1995, initially under the Special Marriage Act W.P.(CRL)No.382/08 :: 2 :: and thereafter allegedly in accordance with religious rites and ceremonies. The minor girl Honey @ Haritha, (now aged 13 years) was born in the said wedlock in November, 1995. It appears that the marital relationship between petitioner No.1 and Sunitha was not very smooth. Ultimately the marriage was dissolved at the intervention of the Family Court, Trichur. The joint application for divorce under Section 28 of the Special Marriage Act was allowed by the court. A copy of the order dated December 22, 2005 passed by the Family Court is available on record as Ext.P1. 6. It was agreed between the parties, as is discernible from Ext.P1 order itself, that the minor child Haritha, who was 10 years old at that point of time, would be allowed to remain in the custody of Sunitha. It was further agreed that temporary custody of the minor child would be given to the husband (petitioner No.1) on 4th Sunday of every month between 3 p.m and 6 p.m. It was also agreed by the husband (petitioner No.1) that he would deposit Rs.1,000/= every month in the name of the minor child in a Nationalised Bank towards her maintenance. All the cases pending between the parties at that time were agreed to be withdrawn. W.P.(CRL)No.382/08 :: 3 :: 7. It is on record that Sunitha got married to respondent No.1 in April 2006. But Sunitha passed away in April, 2008, shortly after she gave birth to twin babies. 8. It is beyond controversy that Haritha, the minor child had all along been in the care and custody of Sunitha and respondent No.1 after their marriage. She continues to be in the custody and care of respondent No.1 after the death of Sunitha. 9. This writ petition has been filed by the former husband (father of the minor) and the parents of Sunitha alleging that the continued custody of the minor girl with respondent No.1 would be prejudicial and detrimental to her interest and welfare. It is further alleged that petitioners have received information from reliable sources that the child is being “brain washed” by respondent No.1 to develop animosity towards petitioner No.1 and that respondent No.1, who is a stranger to the minor child, has no right or authority to keep her in his custody. According to the petitioners, respondent No.1 is detaining the child with an ulterior motive to grab the properties standing in her name, and not because of any love and affection towards her. Petitioners have a further case that the child longs to be in the custody of W.P.(CRL)No.382/08 :: 4 :: petitioner No.1, who is her father and natural guardian. 10. In his counter affidavit, respondent No.1 has stoutly denied the allegations made against him. It is contended by him that after his marriage with Sunitha, he had been regarding the minor child as his own daughter. The child also has been treating him as her own father. He further asserts that he had “mentally adopted” the minor girl as his daughter even at the time of the marriage. It is further contended by him that the issue relating to custody of the minor child is a matter to be adjudicated by the Family Court in appropriate proceedings. In fact petitioner No.1 had moved the Family Court, Trichur under the Guardians and Wards Act for custody of the minor child in G.O.P.No.750/2008. However, the said petition was dismissed as “not pressed” on October 21, 2008, a week before filing this writ petition. 11. Sri.K. Ramkumar, learned Senior Counsel, who appears for the petitioners contends that respondent No.1, who is a total stranger to the minor girl, cannot resist, or take exception to, the prayer made by the petitioners in the writ petition at all. He points out that petitioner No.1, being the father and natural guardian of the minor, particularly after the death of her mother, is entitled to W.P.(CRL)No.382/08 :: 5 :: get her custody. As it is the admitted position that respondent No.1 is keeping custody of the minor child, without any sanction or authority of law, this Court need not strain much to grant the relief prayed for in the writ petition. He further submits that welfare of the minor is of no relevance in a habeas corpus proceeding under Article 226 of the Constitution of India. Sympathy for the minor will also be totally misplaced. Similarly, wishes of the minor need not be ascertained at all in this jurisdiction. 12. The thrust of the argument of the learned senior counsel is that “legal niceties” governing custody jurisdiction of minors, are alien to habeas corpus jurisdiction. This Court need only look at the question whether the detenu is in illegal detention or not. All other statutory parameters, be them falling under the Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act 1956 etc., will pale into insignificance if the minor is kept out of custody of its natural guardian. The issue assumes gigantic legal proportions especially if the minor child is in the custody of a stranger. The contention of the learned senior counsel appears to be that if the person who seeks release of the minor from the alleged illegal detention is the natural guardian, there is no other option for the W.P.(CRL)No.382/08 :: 6 :: court but to put the minor child in the custody of its natural guardian. 13. If we trace the historical development of the writ of Habeas Corpus, it can be seen that the phrase “Habeas Corpus” (meaning “you have the body”) simply represented a command, issued as a means or interlocutory process, to have the defendant to an action brought physically before the court. In the early stages, this Latin phrase was not indicated with the idea of liberty. The process involved an element of the concept of “due process of law” only in so far as it mirrored the refusal of the courts to decide the matter without having the defendant present, (The Law of Habeas Corpus by R.J.Sharpe). Before the development of 'Habeas Corpus' as a potent weapon to get release of the detenu from illegal detention or confinement, Habeas Corpus was considered as a quick efficient remedy which may be used at any stage of the legal process. 14. Habeas Corpus had long been used to gain custody of infants also. But later the foreign courts generally took the view that matters relating to custody of minors have to be decided by Family Courts. As the learned author points out, it has always been recognised that “the habeas corpus in custody cases differs W.P.(CRL)No.382/08 :: 7 :: fundamentally from its use to secure personal liberty”. It is seen to involve 'not a question of liberty, but of nurture, control, and education', Barnardo v.Mc Hugh (1891)1 Q.B.194 at 204 per Lord Esher M.R.(aff'd[1891]A.C.388). 15. Further, as observed in Recarroll(1931)1 K.B.317 at 331, per Scrutton L.J. “it is being used not for the body, but for the soul of the child”. The learned author has also, while tracing the history of development of Habeas Corpus, referred to various enactments which preceded the High Court Act, 1640 and other successor acts of 1679, 1816 and 1862. As rightly noted by H.M.Seervai in his Constitutional Law of India, (fourth edition) many purposes for which the writ was granted in the past, are now only of “historical interest”. 16. It is true that the Supreme Court and several High Courts in this country have had occasion to consider whether writ of Habeas Corpus can be issued in the matter of custody of minor children. 17. In Capt.Dushyant Somal v. Smt.Sushama Somal & anr. (1981) 1 SCC 277) their Lordships of the Apex Court held that a writ of habeas corpus can be issued against the father of the minor W.P.(CRL)No.382/08 :: 8 :: child if it was established that he had taken away the child unlawfully from the custody of the mother. But the court cautioned that a writ of habeas corpus is not to be issued as a matter of course, particularly when it is sought against a parent. 18. The minor child in the above case was forcibly taken away by the father while it was in mother's custody , pursuant to an ex parte order obtained by her from the court under the Guardians and Wards Act. The Police could not trace out the child. When the mother moved the High Court under Article 226 for issue of a writ of a habeas corpus, the father raised a preliminary objection as to the maintainability of the writ. The High Court, after considering the evidence on record, issued a writ of habeas corpus and directed the father to produce the child. He disobeyed. In contempt proceedings he was found guilty. 19. The Supreme Court confirmed the orders of the High Court; but reduced the sentence imposed on the father in the contempt proceedings. The plea raised by the appellant-father that the mother ought to have taken recourse to the alternate remedies available to her under the Guardians and Wards Act and the Code of Criminal Procedure, instead of seeking issue of a writ of habeas W.P.(CRL)No.382/08 :: 9 :: corpus was repelled by the Supreme Court. The plea based on Article 20(3) of the Constitution was also not entertained. 20. In Dr.(Mrs.)Veena Kapoor v. Shri.Varinder Kumar Kapoor ((1981)3 SCC 92), the order passed by the High Court dismissing the habeas corpus petition filed by the mother of a minor child was under challenge. The High Court held that the custody of the child with the respondent-father cannot be said to be illegal. The three Judge Bench of the apex court held that it would be difficult to make an assessment of the welfare of the minor in a habeas corpus petition without taking evidence. Therefore the court directed the District Judge, Chandigarh to submit a report after examining the parties. While doing so, the court observed that the paramount consideration in matters concerning the custody of minor children was the “welfare of the minor and not the legal right of this or that particular party” (emphasis supplied). 21. In Rajiv Bhatia v. Govt. of NCT of Delhi (1999)8 SCC 525), the question that came up for consideration was whether the High Court was entitled to examine the legality of an adoption deed in a petition seeking writ of habeas corpus for custody of a minor girl child aged about 5 years, allegedly adopted by the elder brother W.P.(CRL)No.382/08 :: 10 :: of the natural father. The Supreme Court upheld the order passed by the High Court holding that the adoption deed did not inspire any confidence and that the possibility of fraud as alleged by the natural mother could not be over ruled. The Supreme Court gave custody of the minor child to the mother till an appropriate civil court decided the issue in appropriate proceedings. 22. As mentioned earlier, the thrust of the argument of the learned senior counsel appearing for the petitioners is that scope of “preferences” or likes and dislikes of the minor, nay, even the welfare of the minor, is totally irrelevant when a natural guardian is pitted against a step father who can only be termed as an imposter. It is contended by the learned senior counsel that in such instances there is no scope for an adjudication under the Guardians and Wards Act also, inasmuch as the right of the natural guardian can never be disputed or challenged by a stranger. 23. Several decisions have been cited before us touching upon the broad principles to be kept in view while deciding the question of custody of a minor. 24. In C. Madhavan Nair v. M.Viswanathan (1977 KLT 479) a Division Bench of this Court held that only if the court is W.P.(CRL)No.382/08 :: 11 :: convinced that it would be in the best interest of the child that he should be with the natural guardian, will the court be inclined to accede to the prayer of the natural guardian for the custody of the minor by taking him away from his present custodians. The court further held thus: “However there is a presumption in favour of the natural guardian as opposed to the claims of persons who are not considered to be natural guardians in law. Unless there is evidence to suggest that the natural guardian is not a fit person to be the guardian of his child or that for other reasons it will not be in the interests of the child's welfare to entrust his custody to the natural guardian, the court would ordinarily be inclined to accept his claim in preference to the claim of any other person” (emphasis supplied) 25. In Kurian C. Jose v. Meena Jose (1992 (1) KLT 818, a Division Bench of this Court disallowed the claim for custody of minor made by the father since it was found that he was living with a concubine who was none other than the youngest sister of the mother of the child. The court held that the preferential claim of the natural guardian cannot override the welfare of the minor. The court reiterated that the paramount consideration is the welfare of the minor and not the “legal right of this or that particular party” as observed by the Apex Court in Veena Kapoor's case (supra). W.P.(CRL)No.382/08 :: 12 :: 26. Indisputably the right of a natural guardian to get custody of his/her ward as against a stranger is unassailable. A natural guardian can assert his right of custody of the minor against the whole world, if he is not declared to be unfit for any legally valid reasons. Petitioner No.1, the father of the child, may be justified in contending that the claim for custody of his daughter cannot be frustrated by a step father. He may yet again be justified in asserting that he can seek a writ of habeas corpus since admittedly the minor girl is now in the Custody of the step father. 27. But the short question is whether or not the girl in this case, who is about 13 years old and who appears to be mature enough to assess the pros and cons of the tricky situation at this crucial juncture in her life, should be given an option to express her views. 28. Obviously the ultimate authority to decide the issue of custody must be the court competent to decide such issues under the Guardians and Wards Act. This Court cannot decide that issue, especially since such a decision will have to be on the basis of evidence to be adduced by the parties. The contention raised by the learned senior counsel that the court under the Guardians and Wards W.P.(CRL)No.382/08 :: 13 :: Act need not be drawn into the picture, cannot be sustained at all, since the welfare of the minor being paramount in such matters, the competent court has to necessarily decide the issue of custody after assessing the entire circumstances. 29. In this context, Sri.Chithambaresh, learned Senior counsel appearing for respondent No.1 has pointed out that petitioner No.1 had in fact moved the Family court under the Guardians and Wards Act seeking custody of the minor girl in question. But admittedly the matter was not pursued by him and the petition for custody was dismissed as “not pressed”. It is one week thereafter that the petitioner has come before this Court seeking a writ of habeas corpus. 30. It is true that prayer in this writ petition is to issue a writ of habeas corpus to produce before this court the minor girl who is allegedly in the illegal custody of her step-father. As has been noticed already, the minor girl had been living with her mother (till her death) and respondent No.1, approximately for the last three years. Ever since the death of her mother in April 2008, the minor has been admittedly living with her step father, respondent no.1. W.P.(CRL)No.382/08 :: 14 :: 31. We have talked to the minor, who is present in court. She is a reasonably grown up girl. She is studying in Standard VII in a school near her residence. We have interacted with the girl in order to find out how she reacts to this entire episode. She informed us, in no uncertain terms, that she does not want to go with petitioner No.1 though he is her father. She further went on to say that she is quite happy to live with respondent No.1. She also asserted that she is not under any kind of pressure from respondent No.1. In short, she insisted that she is not under confinement or illegal custody of respondent No.1 as alleged by the petitioners. She appears to be quite mature for her age (13 years). 32. We have referred to the above aspect only to refer to the argument advanced by the learned Senior Counsel that a minor's likes or dislikes in a petition for habeas corpus is not significant or relevant at all. It is in this context that the learned Senior Counsel has contended before us that “sympathy factor” has no role to play in a habeas corpus jurisdiction. 33. We are unable to agree with the above proposition. The power of the High Courts to issue prerogative writs under Article W.P.(CRL)No.382/08 :: 15 :: 226 is plenary in nature and is not limited or controlled by any other provisions of the Constitution. (See ABL International Ltd. vs. Export Guarantee Corporation of India Ltd. (2004) 3 SCC 553). The said power cannot be bridled or narrowed down, especially by trying to camouflage an individual right provided under a statute as a constitutional safeguard. The individual right must be pursued and established in the manner prescribed under that particular statute. No litigant can take a short cut to judicial remedy by refusing to proceed on the right royal road provided by the special statute. No shackles can be placed on the powers of the writ court to stretch its hand and reach out wherever there is injustice. In any view of the matter, we have no hesitation to hold that the High Court is vested with the power to protect the interest and welfare of a minor child, even in a Habeas Corpus proceeding if the situation so warrants. However, it will always be prudent and proper to leave the ultimate question of custody to the competent court having jurisdiction. 34. It is trite that question of custody of a minor child has to be necessarily adjudicated and decided by a competent civil court in terms of the provisions contained in the Guardians and Wards Act and the other relevant laws governing the field. While W.P.(CRL)No.382/08 :: 16 :: deciding such issues, the court may have to keep in view various parameters; and primarily the welfare of the child. Obviously in a writ jurisdiction, issues are decided on the basis of affidavits, and ordinarily, this Court is not expected to direct the parties to adduce evidence in a proceeding under Article 226. In a case relating to custody of a minor, various inputs may have to be considered to decide the issue. Parties have to necessarily approach the competent authority - Family Court having jurisdiction to try the case. This court will be loathe to consider such an issue and that too in a writ petition for habeas corpus. 35. The minor girl who is present before us has categorically stated that she is not under confinement or illegal detention as alleged by the petitioners. Therefore the question whether the so called “custody” of the minor girl with respondent No.1 is legal or illegal need not be considered in this jurisdiction. Undoubtedly the larger and more vital issue relating to the welfare of the minor girl has to be decided by the Family Court concerned. 36. The contention raised by the petitioners that the views of the minor need not be ascertained in this petition cannot also be entertained for the simple reason that the girl does not appear to be W.P.(CRL)No.382/08 :: 17 :: too immature or incapable of taking a decision independently. We make it clear that the view taken by us in this case is only tentative, and of course, subject to the decision, if any, that may be ultimately taken by a competent Family Court. Undoubtedly this Court cannot shut its eyes and decide the issue in a mechanical or dogmatic manner ignoring the wishes expressed by the minor, before us. Such an approach will be inhuman. 37. Therefore, we have no hesitation to reject the prayer made by the petitioners. 38. The question posed in the writ petition is thus answered in the negative and against the petitioners. The writ petition is dismissed. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl