M. Karuppiah vs The State and Jothi

R. Banumathi, J.—Alleging that his minor children, Muthulakshmi (minor daughter aged 8 years) and Palanikumar (minor son aged 4 years) are in illegal detention of his wife, the petitioner/father of the minor children, has filed this Habeas Corpus Petition seeking for a direction for causing production of the minor children.

According to the petitioner, while he was in abroad, with the help of money sent by him, the third respondent got a lot of friendship and that she had not taken care of the children. He had admitted the first detenu in Vivekananda Middle School in the Second Standard and the second detenu in LKG in R.M. Meyyappa Chettiyar Matriculation School. The third respondent along with the assistance of some identifiable persons have gone to the School and kidnapped the detenus regarding which an F.I.R. Was also registered in Crime No. 18/2009 for the offence u/s 363 of the I.P.C.

The learned Counsel for the petitioner has submitted that the petitioner was working in Singapore from 2004 and that he used to send money to the wife and the children and that the petitioner had always taken interest in the welfare of the minor children/detenus and that, now the petitioner got himself relieved from the foreign job and obtained employment within his own District. In such circumstance, the learned Counsel for the petitioner submitted that continued illegal custody of the minor children with the third respondent would be prejudicial to the interest of the minor children. Placing reliance upon 2001 Scc (Crl) 841 [Syed Saleemuddin v. Dr. Rukhsana and Ors.], it was submitted that any Habeas Corpus Petition seeking transfer of custody of children from mother to father taking into consideration the welfare of the children is well maintainable.

Admittedly, the petitioner was in Singapore from 2004 till his return to India, after resigning the job and till then, the custody of the children were with the third respondent. The contention of the petitioner that the third respondent is leading a wavered life and that custody of the minor children with the mother would be prejudicial to their interest is a question of fact, which cannot be ascertained in this Habeas Corpus Petition.

The Hindu Minority and Guardianship Act, 1956 is the statute relating to the Minority and Guardianship among Hindus. Section 4 of the Act defines-

(a) "minor" means a person who has not completed the age of eighteen years;

(b) "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property, and includes - (i) a natural guardian, (ii) a guardian appointed by the Will of the minor''s father or mother, (iii) a guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards;

(c) "natural guardian" means any of the guardians mentioned in Section 6, which read as under:

Natural guardians of a Hindu minor - The natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property (excluding his or her undivided interest in joint family property, are -

(a) in the case of a boy or an unmarried girl - the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father,

(c) in the case of a married girl - the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation - In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.

Mother is supposed to have the custody of a child who has not completed the age of 5 years u/s 6(1) of the Act. If at all, if the petitioner seeks custody of a minor child, it is for him to move the appropriate forum and seek remedy in accordance with law. The basis of issuance of Habeas Corpus Petition is existence of illegal detention. In the case of such a Writ sued out for the detention of the child, the law is concerned not so much with legality of the detention but with welfare of the child. When the third respondent, mother is having custody of the child, it cannot be prima facie said that it is against the interest and welfare of the minor children. In such view of the matter, the Habeas Corpus Petition filed by the petitioner is liable to be dismissed.

Accordingly, this Habeas Corpus Petition is dismissed with an observation that the petitioner is at liberty to seek remedy before the appropriate forum in accordance with law.