1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.11.2011 CORAM: THE HONOURABLE MR.JUSTICE.M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE.S.NAGAMUTHU H.C.P.(MD)No.973 of 2011 A.Hema : Petitioner Vs 1.State rep.by the Superintendent of Police, Office of the Superintendent of Police, Madurai District, Madurai. 2.The Inspector of Police, Oomatachikulam Police Station, Madurai City. 3.R.K.Balasubramanian 4.R.K.Rajeswari 5.R.K.Jai Ganesh 6.S.Saraswathi 7.S.Mohanraj : Respondents Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, to direct the respondents to produce the person or body of the petitioner's minor daughter Vamika, aged about 5 years, who is under the illegal custody of the respondents 3 to 7 before this Court and handover her custody to the petitioner. For Petitioner : Mr.Siva Ayyappan For R.1&2 : Mr.A.Ramar Addl.Public Prosecutor ORDER [Order of the Court was made by S.NAGAMUTHU,J.] The petitioner is the mother of one minor girl Vamika, aged five years. The petitioner's husband is one K.Sivagurunathan. The petitioner married the said Sivagurunathan on 11.05.2005. The petitioner and her husband were staying in Australia. Thereafter, they came to India, where the petitioner gave a birth to a child, by name Vamika. Unfortunately, her husband died on 04.08.2011. But, during the month of December, 2009, it is alleged that the petitioner's daughter was illegally taken away by the respondents 3 to 7. The third and the fifth respondents are the brothers- in-law of the petitioner. The fourth respondent is the mother-in-law of the petitioner and the sixth respondent is a relative. It is specifically alleged that the fifth respondent has taken the child to Australia and he is illegally detaining her in Sydney. In this regard, a complaint was preferred by the petitioner before the respondent police and upon which, no case has been registered so far. According to her, no steps have been taken by the respondents police to secure the child from Australia and to restore her to India. With these allegations, the petitioner has come up with the Habeas Corpus petition seeking a direction to the first and the https://hcservices.ecourts.gov.in/hcservices/ 2 second respondents to secure the custody of the minor child and hand over the custody to her. 2. The learned Additional Public Prosecutor would submit that it is true that the child is in the custody of the fifth respondent in Australia. However, he would submit that the fifth respondent has filed a petition before the Family Court, Australia, seeking a relief of declaration of parentis. The case is now pending before the Australian Court. The petitioner herein is the sole respondent therein. The case was filed on 05.10.2011 3. The learned counsel for the petitioner has vehemently argued that though there are allegations of kidnapping and illegal detention of the child, no case has been registered by the police, on the compliant preferred by the petitioner. He would further contend that as per provisions of Criminal Procedure Code, the second respondent ought to have taken steps to secure the minor from Australia and restored to India and handed over the custody to the petitioner. 4. We have considered the submissions of the learned counsel for the petitioner as well as the learned Additional Public Prosecutor. 5. Admittedly, the child was taken into the custody of the fifth respondent during the month of December,2009. The petitioner's husband died only on 04.08.2011. The child has along been in the custody of the fifth respondent, more particularly, even during the life time of the petitioner's husband too. Apart from that, it has been brought to our notice that proceedings were pending before the Australian Court in respect of parentis of the child, in which the petitioner herein is the sole respondent therein. In those circumstances, we are of the view that the remedy for the petitioner lies before the appropriate Civil Court. Added further, the dispute raised in this Habeas Corpus petition cannot be gone into in detail and adjudicated upon before this Court. Since, as of now, the child is in the safe custody of the fifth respondent, who is none else than the brother-in-law of the petitioner, the prayer sought for by the petitioner cannot be considered and therefore, this Habeas Corpus petition is dismissed. However, it is open to the petitioner to workout her remedy in a manner known to law. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar(C.S) To 1.The Superintendent of Police, Office of the Superintendent of Police, Madurai District, Madurai. 2.The Inspector of Police, Oomatachikulam Police Station, Madurai City. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1. CC to Mr.Siva Ayyappan, Advocate, SR.No. 41704 ssm Order made in H.C.P.(MD)No.973 of 2011 Dated:- 23.11.2011 TR : 01.12.2011: 2p/5c https://hcservices.ecourts.gov.in/hcservices/