D. Vaidyalingam vs Kuppuswamy Reddi and others

K. M. Natarajan, J.—This writ petition is filed under Article 226 of the Constitution of India seeking for the issuance of a Writ of Habeas

Corpus directing respondent 3 and 4 to produce the minor children (male child Haribaskar, aged about 7 years, and female child Lavanya, aged

about 5 years) before this Court and direct their custody to the petitioner.

The brief facts which are necessary for the disposal of this writ petition are as follows: It is the admitted case of both parties that the petitioner''s

daughter Pustipalatha was married to one Dhandapani who is the son of respondents 1 and 2, on 12-12-1982. The petitioner''s daughter died on

18-3-1988. Subsequently, in the writ petition filed by the petitioner, W.P. No. 10945 of 1988, for issue of a Writ of Habeas Corpus, this Court

gave direction for admitting minor Haribaskar in Bala Mandir, Madras, till the question also who is entitled to custody of him is decided by

competent civil Court. The petitioner filed O.P, No. 10 of 1989 against the father of the minor children claiming custody of the children, before the

District Court, West Thanjavur. While the said O.P. No. 10 of 1989 was pending, Dhandapani, the father of the minor children, died in a road

accident on 29-11-1989. Thereupon, the District Judge, West Thanjavur, allowed the said O.P. No. 10 of 1989 and appointed the petitioner as

guardian of the minors, without impleading the legal representatives of Dhandapani, who is the father of the children. On a revision petition filed by

the first respondent herein in C.R.P. No. 918 of 1990, this Court set aside the said order and directed impleading of respondents 1 and 2 herein as

parties to O.P. No. 10 of 1989. Respondents 1 and 2 filed O.P. No. 28 of 1990 on the file of the District Court, South Arcot at Cuddalore, for

appointing them as guardian of the minor children. O.P. No. 10 of 1989 filed by the petitioner on the file of the District Court, West Thanjavur was

transferred to the file of the District Court, Cuddalore, and both the O.Ps. were tried jointly. While the said Original Petitions were pending, the

petitioner filed W.P. No. 16051 of 1989 for custody of the children from respondents 1 and 2. This Court dismissed the said writ petition directing

the learned District Judge, Cuddalore, to dispose of the O.P. within three months, since the civil Court has taken cognizance of the matter and a

petition for appointment of guardian is pending before competent Court and the said Court has to decide the issue after taking into consideration all

the circumstances with regard to the welfare of the minors and to decide the question as to who would be entitled to custody of the children. Since

the petitioner did not appear in Court in spite of number of adjournments granted, he was set ex parte, and the District Judge, Cuddalore,

appointed respondents 1 and 2 as guardians for minors. It was further ordered that it is open to respondents 1 and 2 to take the minor Haribaskar

from Bala Mandir, Madras, and bring him along with them while the second child is already in the custody of respondents 1 and 2. It is stated that

the petitioner has filed a petition to set aside the ex parte order passed in the said O.P. He has also filed a petition for stay of the orders and the

matter is pending now before the said Court. But, no orders have been passed. In pursuance of the order of the learned District Judge Cuddalore,

respondents 1 and 2 got custody of the minor Haribaskar from Bala Mandir. According to the petitioner, respondents 1 and 2 are aged and they

are not in a position to look after the children. He has reliably learnt that the children were not given proper education and care and if the children

are allowed to stay in the village, the safety of the children will be seriously in jeopardy and as such the custody of the children should be handed

over to him.

The said petition was stoutly opposed by respondents 1 and 2 and they have stated that even since the birth of the children, they were staying

only in their house and that they were look after them properly. Admittedly the second child was with them even when the impugned order was

passed by the District Judge and even the first child was in their custody till he was admitted in Bala Mandir in pursuance of the order passed by

this Court. Bala Mandir is only an institution for homeless wards and it cannot be called an educational institution. On the other hand, the child

Lavanya joined Fatima Matriculation School, Vridhachalam, an excellent and well reputed school run by Christian Missionaries even on 15-6-

1990. She is now in the 1 Standard and the said school is only a few kilometers from their house. Haribhaskar was also admitted in the same

school in March, 1992 immediately on his leaving Bala Mandir. He has not wasted any time academically. As his standard of education was very

poor, the school authorities wanted him to continue in the same class this year also to coup up with his studies. It is also contended that even when

the boy was in Bala Mandir, they used to visit him and provide all the necessary requirements. On the other hand, the petitioner has no love and

affection for the children. They stoutly opposed the petition contending that the subject matter is pending before a competent civil Court and the

competent civil Court has also already passed orders in their favour appointing respondents 1 and 2 as guardian of the minors. The remedy of the

petitioner is only to challenge the said order. Even according to the petitioner, he has filed a petition to set aside the ex parte order and also moved

for interim orders for restoring the status quo ante. It is for him to work out his remedy in the said proceedings. In fact, even during the pendency

of the said proceedings, the petitioner has come forward with a writ petition in W.P. No. 16051 of 1989 and this Court took the same view and

directed the District Judge to dispose of the matter within three months. But, the petitioner was not co-operating in the disposal of the matter and

he absented himself for number of hearings and the Court had no other go except to dispose of the matter on the available materials. Respondents

1 and 2 also submitted that they are not interested in the properties of the minors and that they are interested only in the welfare of the minors.

They only requested the Court to appoint them as guardian of the person of the minors and not the properties. Hence, they prayed for dismissal of

the writ petition.

The petitioner filed a reply-affidavit wherein he has reiterated the averment already made and further submitted that his daughter died in

suspicious circumstances and when this was brought to the notice of the Court, the Court directed investigation of the case by the Director General

of Police. It was further contended that he is the fit and proper person to be appointed as guardian of the minors and in any event the minor

Haribhaskar should be re-admitted in Bala Mandir, and the Court which appointed respondents 1 and 2 as guardian of the minors has no

jurisdiction to pass the order directing them to take custody of the boy Haribaskar from Bala Mandir.

After hearing the arguments of the learned counsel appearing on either side and after going through the materials we find from the certified copy

of the order, produced before this Court, passed by the District Judge, Cuddalore in O.P. No. 28 of 1990 dated 4-3-1992, that the District Court

appointed respondents 1 and 2 as guardian of the minors, and while appointing them, the Court further ordered that it is open to respondents 1 and

2 to take Haribaskar from Bala Mandir and bring him along with them. It is only in pursuance of the said order, they got custody of minor

Haribaskar from Bala Mandir. Respondents 1 and 2 also produced school records to show that Haribaskar was admitted in Fatima Matriculation

School, Vriddhachalam and the child Lavanya was already admitted in the said school and she was promoted from U.K.G. to I Standard this year.

According to them, the said school is a reputed school run by Christian Missionaries and the pupils are being given proper education. They

contended that the minor wards were throughout only with them from their birth except for a short period during which Haribaskar was admitted in

Bala Mandir as per order of the High Court on the petition filed by the petitioner. According to them, that too was made by way of temporary

arrangement till the question as to who is entitled to the custody of the children is decided. Respondents 1 and 2 have submitted that now by virtue

of the order passed by the District Court, Cuddalore, they have also got custody of the minor Hanbaskar. It is stated by the petitioner that he has

already filed a petition to set aside the ex parte order passed by the District Judge, Cuddalore, appointing respondents 1 and 2 as guardian of the

minors and also plead the petition to restore the petition filed by him which was dismissed for default. He also moved for stay of operation of the

said order and for a direction to maintain status quo ante. Those matters are pending before the said court. Instead of prosecuting those

applications, the petitioner has chosen the wrong remedy and has come forward with this petition. A competent civil court has passed orders

appointing respondents 1 and 2 as guardian of the minors. Respondents 1 and 2 are no other than the paternal grand-father of the minors while the

petitioner is the maternal grand-father. The petitioner who is aggrieved by the order of the District Court has already instituted proceedings for

setting aside the ex parte order and for granting necessary interim orders. The petitioner has to work out his remedy only in those proceedings. It is

not for this Court to sit over the judgment passed by the competent civil Court and grant any interim relief against the order passed by the said

Court, There is absolutely nothing to show that the life of the children was in danger or they were about to be taken outside the jurisdiction of this

Court, so as to attract the jurisdiction of this Court, In view of the admitted facts already set out, we feel that the petitioner has not made out any

case for issue of a Writ of Habeas Corpus directing respondents 1 and 2 to hand over custody of the minor children to the petitioner contrary to

the lawful order passed by the Civil Court. The petitioner has of work out his remedy only in the said Court, where proceedings are pending for

setting aside the ex parte order and granting interim relief. In case, the petitioner is ultimately aggrieved by any order passed by the said Court, his

remedy is only to challenge the said order in the manner known to law before the competent Court and not to file a writ petition of this nature

which can be filed only when no alternative remedy is available. We do not propose to go into the truth or otherwise of the allegations with regard

to the alleged suspicious circumstances under which the daughter of the petitioner met with her death and also the other allegations and counter-

allegations levelled against each other in this writ petition. We also do not propose to make any observation with regard to the custody of the

children in view of the fact that a competent Civil Court has taken cognisance and passed orders. Suffice it to say that the petitioner has

misconceived his remedy in filing this writ petition.

In the result, the writ petition fails and stands dismissed. However, we direct the District Judge, Cuddalore, before whom the proceedings

relating to setting aside the ex parte order appointing respondents 1 and 2 herein as guardian of the minors are pending, to dispose of the same

according to law as expeditiously as possible and in any event within two months from the date of receipt of the copy of this order and the parties

are directed to co-operate in the disposal of the said petition.

Petition dismissed.