Rama Prabha vs The Inspector of Police and Others

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 the Petitioner, alleging that the detenue has been illegally

detained by the Respondents 3 to 7 herein.

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.

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 Anr. (1995 (II) CTC 510),

b) Subba Reddy v. Commissioner of Police, Chennai (2006) 2 M.L.J. 201 and

c) B. Kamsala v. Bommi and Ors. (2005 1 L.W. 297).

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 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 Vs. Dr. Rukhsana and

Others, , the Apex Court has held in paragraphs-9 and 10 as under:

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:

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 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.

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 Code of Criminal Procedure. 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 Vs. Ram Gopal Agarwala and Others, , the Apex Court has considered the scope of HCP for the custody of the

minor child and held in paragraph-7 as under:

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 SCC 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:

Proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of 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.

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.

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 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.