Subbarathnammal vs Seshachalam Naidu

Horace Owen Compton Beasley, Kt., C.J.—The petitioner here is the mother of an illegitimate minor son and she has presented this petition

praying for the issue of a writ of habeas corpus directing the respondent to hand over the custody of that child to her. The child was born on the

11th April last year. It would appear that the petitioner had been living as the respondent''s mistress for some two or three years in the

respondent''s house in which also the respondent''s wife lived. The latter was incapable of bearing any children. There had been previously born to

the petitioner two other children both of which died in very early infancy. After the birth of this child the petitioner went to Mysore, it is said, in

order to visit her sister who was very ill; and she alleges that she was prevented by the respondent from taking her child with her, and upon her

return to Madras early in July that he has refused to hand over to her this child. Accordingly she has presented this petition for a writ of habeas

corpus.

Some important matters must be referred to. The petitioner presented a petition under the Guardian and Wards Act to the District Court of

Chittoor, namely, O.P. No. 18 of 1930. In that petition she prayed to be appointed the guardian of the person of the minor child. The. respondent

here was the respondent in that petition. He put in a counter-petition alleging that the petitioner was not by reason of her immoral character and

other matters a fit and proper person to be appointed the, guardian of the person of the minor child. He added also that he was a fit and proper

person and that he was willing to be appointed the guardian of the person of the minor child and prayed to be so appointed. The District Judge of

Chittoor went into the merits of the case and decided that the petitioner was not the right person to be appointed guardian of the person of the

infant and decided at the same time that the respondent was; and he was accordingly appointed the guardian of the person of the child. The

petitioner then brought the matter up to the High Court in C.M.A. No. 459 of 1930 See Subbaratnammal Vs. Seshachala Naidu, and it was

decided by the Division Bench, in that case that as it appeared that the appellant was a resident of Mysore and therefore residing outside the

jurisdiction of British India, she could not be appointed the guardian of the minor as over such a guardian the Court could not exercise a proper

control and in support of that view reference was made to Batcha Chetty v. Ponwuswami Chetty (1911) 22 M.L.J. 68.

The order of the Appellate Bench then goes on as follows:

The appellant therefore cannot herself be appointed guardian of the minor under the Act. For this reason without going into any of the other

questions raised, we find it unnecessary to interfere in the appellant''s favour with the order of the learned District Judge. This will not preclude the

appellant from seeking any other remedy open to her.

It is clear that the Appellate Bench did not go into the merits of the case. On the question of jurisdiction they dismissed the appeal at the same

time making the order of the District Court a final one. With regard to the concluding words of that order, we have had addressed to us an

argument by Mr. Rajah Aiyar that he has come here really with the benediction of the Division Bench. But it appears to us that those words mean

nothing more than that if the petitioner has got some other remedy, the decision of the Appellate Bench is not to be taken to be a bar to her

adoption of such a remedy. The question is whether she has got any such remedy as she seeks here. We have here an order of the Court of

competent jurisdiction declaring on the petitioner''s own petition the respondent to be the fit and proper person to be appointed guardian of the

person of the minor child. That order is still subsisting. The respondent therefore is declared to be the fit person entitled to the custody of the minor

child. The question is whether under such circumstances, in the face of that subsisting order, it is open to the petitioner to come here by way of

habeas corpus and obtain custody of the child. It is quite clear to us that there is no remedy by way of habeas corpus unless it is shown that the

retention of the minor child is illegal or improper. When a Court of competent jurisdiction has declared a person to be a fit and proper person to

exercise guardianship over the infant, how can it be argued here that the retention by that person legally appointed is either illegal or improper? We

are quite satisfied that it was never intended that the procedure by way of habeas corpus should be utilized for the purpose of going behind such an

order as we have here; and it is only in cases where it can be shown that a minor child is illegally or improperly retained that Courts will interfere by

way of habeas corpus. We have been referred to the authority of King v. Greenhill (1836) 4 Ad. & E. 624 : 111 E.R. 922. But that case really is

an examination of other cases into the question as to which party, the husband or the wife as the case may Se, was the best person or the better

person to have the guardianship or custody of the child and it is quite clear from a reading of that case that where a child is in the legal or proper

custody of another person, others, be those persons mother, father or relatives, have no right to come by way of habeas corpus for a writ directing

the return of the child from the person in whose proper or legal custody the infant is. The only remedy, if any--indeed there may be none in this

case--open to the petitioner is to apply u/s 39 of the Guardian and Wards Act. If the petitioner is able to satisfy the Court that the conditions

mentioned therein are present in the case, that will be a good reason for asking the Court to take the guardianship of this infant away from the

respondent and to put it with the petitioner. Section 25 of the same Act does not assist the petitioner in the least degree. Section 25 merely deals

with the case of a child which has been in the custody of or should be in the custody of a person appointed guardian and which leaves or is

removed from such custody. Under such circumstances as those when the legal guardian or the natural guardian makes an application for the return

of the child u/s 25, the question may be enquired into as to whether it is right that the child should be returned to that person on the ground that the

person who has been appointed guardian or is the natural guardian of the infant is not a fit and proper person to have the child. That section has no

application to this case.

This petition must be dismissed.