Kabeer vs State

S. Nagamuthu, J.—The petitioner is the father of the minor child, by name, Ahammed Afsar, aged 6 years (hereinafter referred to as "detenu"). One Aaisha Begam is his wife. There has been some matrimonial dispute between the petitioner and his wife and therefore, she has been living separately. The third respondent is the sister of his wife. The detenu, according to the petitioner, was all along in his care and custody. He was also studying in a local School. While so, according to the petitioner, on 15.7.2011, from the school, the third respondent has taken the detenue and she has been keeping the detenu in illegal custody. With these allegations, the petitioner has preferred a complaint to the first respondent on 16.7.2011. Since no action whatsoever was taken on the same, the petitioner has come up with this Habeas Corpus Petition seeking a direction to the respondents 1 and 2 to secure the custody of the minor detenu and to hand over him to the petitioner. Today, the learned Additional Public Prosecutor, on instructions from the second respondent, would submit that through enquiry, it has come to light that the detenu was not taken from the School by the third respondent but the detenu was taken only by the wife of the petitioner. To that effect, the petitioner''s wife Aaisha Begam has also given a statement u/s 161(3) of Cr.P.C.. A xerox copy of the statement is also produced before this Court. The learned Additional Public Prosecutor would submit that it has been ascertained by the second respondent that the detenu is very much in the custody of his mother, namely, Aaisha Begam. The said statement is recorded.

In view of the above statement of the learned Additional Public Prosecutor and the statement of Aaisha Banu recorded u/s 161 (3) of Cr.P.C., we are of the view that there is no illegal detention of the detenu in the custody of the third respondent as projected by the petitioner. Therefore, the question of issuing a Writ of Habeas Corpus does not arise at all. If the petitioner has any remedy regarding the custody of the child, it lies before a competent Civil Court. In this Habeas Corpus Petition, the same cannot be granted. In such view of the matter, the Habeas Corpus Petition is dismissed.