1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.08.2011 CORAM: THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA and THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Habeas Corpus Petition(MD)No.476 of 2011 Rama Prabha ..Petitioner Vs. 1.The Inspector of Police, All Women Police Station, Kumbakonam, Thanjavur District. 2.The Sub-Inspector of Police, Thiruneelakudi Police Station, Thiruvidaimaruthur Taluk, Thanjavur District. 3.A.Varadharajan 4.A.C.Arivarasu 5.A.Andal 6.A.Saradha 7.S.Krishnaveni .. Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus directing the respondents 1 and 2 herein to produce the body or person of the detenue namely Vajra, aged 6 years and handover the custody to the petitioner from the illegal custody of respondents 3 to 7 herein. For petitioner : Mr.K.Srinivasan, Senior Advocate for Mr.V.Perumal For respondents : Mr.C.Ramesh, Addl.Public Prosecutor for R1 and R2 Mr.M.Ajmal Khan for Mr.G.Prabhakar for R3 Mr.S.Karthik for R4 to R7 ORDER (Order of the Court was made by P.P.S.JANARTHANA RAJA, J.) This Habeas Corpus Petition has been filed by the petitioner to direct the respondents 1 and 2 to produce her daughter by name Vajra, aged 6 years, before this Court and handover the custody to https://hcservices.ecourts.gov.in/hcservices/ 2 the petitioner, alleging that the detenue has been illegally detained by the respondents 3 to 7 herein. 2.The petitioner is the wife of the third respondent herein. Both the petitioner and the third respondent got married in the year 2003. Since the third respondent/husband of the petitioner got a job at Dhamam, Saudi Arabia, the petitioner went with her husband to Saudi Arabia. Subsequently, the petitioner returned to India to deliver a baby. Now the child is 6 years old. There was misunderstanding between the petitioner and the third respondent and the allegations were made against the husband by the petitioner-wife. Therefore, the petitioner came to India along with her child in February 2011 and the child was admitted in I Standard in G.S.K. Matriculation School at Pattiswaram, Kumbakonam, Thanjavur District. Later the child was taken by the third respondent/the petitioner's husband. It is also alleged by the petitioner that the child is being illegally detained by her husband. Therefore, the petitioner has made a complaint to the first respondent-Police. Since no action has been taken by the first and second respondent-Police in spite of repeated reminders, the petitioner has come forward to file the above HCP with the prayer as already stated supra. 3.Learned counsel for the third respondent has filed a counter affidavit and submitted that the allegations made by the petitioner are baseless and without any basis and justification. Further he stated that the detenue-child was admitted in New Middle East International School, Riyadh, Saudi Arabia and the child is a bright student in the school. He further stated that both the petitioner as well as the third respondent were living in Saudi Arabia happily and after coming to India, the petitioner refuses to go to Saudi Arabia for the reasons best known to her. Further he stated that the child cannot be said to be under the illegal custody of her father, who is the natural guardian. Therefore, he submitted that the Habeas Corpus Petition itself is not maintainable and relied on the following judgments of this Court in support of his contention. a)V.Veerapandian v. Kalaiselvi and another (1995 (II) CTC 510), b)Subba Reddy v. Commissioner of Police, Chennai (2006) 2 M.L.J. (Crl.) 201 and c)B.Kamsala v. Bommi & others (2005-1-L.W.(Crl.)297). 4.Heard the learned counsel on either side and perused the materials available on record. When the matter came up earlier, we called both the petitioner and the third respondent in the chambers along with the child. We have also enquired and interacted with the child. The allegations between the petitioner and the third respondent is matrimonial in nature. The petitioner-wife has categorically stated that she is not willing to go to Saudi Arabia and that it is not safe to go along with her husband to Saudi Arabia. The detenue-child, who is 6 years old, stated before us that she want to study and stay only in Saudi Arabia and further she want to live with both father and mother. It is well settled principle that in a https://hcservices.ecourts.gov.in/hcservices/ 3 Habeas Corpus Petition, the right to custody of the minor child has to be agitated before the appropriate Court by adducing evidence, but the Apex Court, considering the nature and scope of the writ of habeas corpus, laid down certain guidelines with regard to the custody of the child. The Apex Court has also stated that the paramount consideration should be the welfare of the children. In the case of Syed Saleemuddin v. Dr.Rukhsana and others, reported in (2001) 5 SCC 247, the Apex Court has held in paragraphs-9 and 10 as under:- “9. A Constitution Bench of this Court in the case of Kanu Sanyal v. District Magistrate, Darjeeling dealing with the nature and scope of a writ of habeas corpus, observed: “4. It will be seen from this brief history of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, ‘in order that appropriate judgment be rendered on judicial inquiry into the alleged unlawful restraint’. The form of the writ employed is ‘We command you that you have in the King's Bench Division of our High Court of Justice — immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody — together with the day and cause of his being taken and detained — to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf’. The italicised words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes, ‘the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's https://hcservices.ecourts.gov.in/hcservices/ 4 freedom’ and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end.” 10. This Court in the case of Gohar Begum v. Suggi dealt with a petition for writ of habeas corpus for recovery of an illegitimate female infant of an unmarried Sunni Muslim mother, took note of the position under the Mohammedan law that the mother of an illegitimate female infant is entitled to its custody and the refusal to restore such a child to the custody of its mother would result in an illegal detention of the child within the meaning of Section 491 of the Criminal Procedure Code. This Court held that the dispute as to the paternity of the child is irrelevant for the purpose of the application and the Supreme Court will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised. This Court further held that in issuing writs of habeas corpus the courts have power in the case of an infant to direct its custody to be placed with a certain person.” In the case of Rajesh K.Gupta v. Ram Gopal Agarwala and others reported in (2005) 5 SCC 359, the Apex Court has considered the scope of HCP for the custody of the minor child and held in paragraph-7 as under:- “7. It is well settled that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. [See Veena Kapoor (Dr.) v. Varinder Kumar Kapoor1 and Syed Saleemuddin v. Dr. Rukhsana.] It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.” In the case of Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 Supreme Court Cases 479, the Apex Court considered the writ jurisdiction under Article 226 of the Constitution of India and also the Family and Personal Laws and held in paragraphs-58, 59 and 60 as under:- “58.Proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of https://hcservices.ecourts.gov.in/hcservices/ 5 the alleged detenu is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody. 59. The Court may also direct repatriation of the minor child to the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran and Shilpa Aggarwal cases or refuse to do so as was the position in Sarita Sharma case. What is important is that so long as the alleged detenu is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court’s jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenu is within its territorial jurisdiction. 60. In cases arising out of proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardians and Wards Act on the other.” From the principles enunciated in the above Apex Court judgments, it is well settled that in the matter of the custody of the minor child, the welfare of the child is of paramount importance for the Court. In the present case, when we interacted with the child who is very bright, she stated that she want to go with her father and she want to study only in Saudi Arabia and not at Mayiladuthurai. She also stated that her mother/ the petitioner herein, also should come to Saudi Arabia. Even in the Court as well as in the Chambers, the child moved freely with both her father and mother. It is also pertinent to note that when the matter came up before this Court on an earlier occasion, even though the petitioner was living with her mother, and the third respondent was living with his parents, we directed both the petitioner-wife and the third respondent-husband to live together in a separate residential house. As per our direction, both of them took out a house on rent and lived for a period of about three weeks. When the matter came up before this Court again, the petitioner-wife categorically stated that she is not willing to go along with her husband/third respondent to Saudi Arabia, but the child is very friendly and also interacted with both the father and mother. After considering the overall facts and circumstances of the case and also https://hcservices.ecourts.gov.in/hcservices/ 6 the principles enunciated in the above Apex Court judgments, we are of the considered view that the child-Vajra is not under the illegal custody of the father, who is a legal guardian. Further the child is also willing to go with her father and study at Saudi Arabia. Under the circumstances, we are of the considered view that there is no merit in this Habeas Corpus Petition and accordingly the same is dismissed. Liberty is given to the petitioner-wife to proceed against the third respondent-husband for appropriate relief before the Family Court, if so advised. It is made clear that whatever observations made for disposing of this case, will not be made use of by the parties before the Family Court. Sd/- Assistant Registrar(Writs) /True Copy/ Sub Assistant Registrar To 1.The Inspector of Police, All Women Police Station, Kumbakonam, Thanjavur District. 2.The Sub-Inspector of Police, Thiruneelakudi Police Station, Thiruvidaimaruthur Taluk, Thanjavur District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.S.Karthik, Advocate SR.No.26365 +1cc to Mr.V.Perumal, Advocate SR.No.26380 KM akm/19.08.11 /6p-6c/ HCP(MD)No.476 of 2011 05.08.2011 https://hcservices.ecourts.gov.in/hcservices/