Vinu Varghsese vs The Superintendent of Police and Others

R. Basant, J.—Petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his male minor child by name Alvin, who, it was alleged, is being illegally detained and confined at some unknown place by respondents 3 to 7.

The 3rd respondent is the mother of the child. The petitioner and the 3rd respondent had admittedly entered into Ext.P1 agreement to get married to each other in accordance with law. That agreement is dated 05.01.2008. The marriage has not been solemnised admittedly. The minor male child was born in such relationship between the petitioner and the 3rd respondent. The petitioner is employed abroad. The 3rd respondent was having the custody of the child. The 3rd respondent has now secured an employment and is not available at her native place. It is the grievance of the petitioner, who has come from abroad now, that the child is illegally kept away at some unknown place by respondents 3 to 7. The 4th and 5th respondents are the parents of the 3rd respondent and the 6th and 7th respondents are the relatives of the 3rd respondent. According to the petitioner, the 3rd respondent now wants to contract another marriage. The child has become an inconvenience to her to enter such matrimony. It is, in these circumstances, that the child has been kept away at some unknown place by respondents 3 to 7. The petitioner prayed that his child may be directed to be produced before this Court and set at liberty.

This petition was filed on 14.09.2010. It was admitted on 15.09.2010. Notice was ordered to the respondents.

Today when the case is called, the petitioner is present. He is represented by his counsel. Respondents 3 to 7 are represented by a counsel. Counsel submits that the 3rd respondent is not available at her native place and has gone to Delhi to take up employment as a Nurse. The illegitimate child born to the 3rd respondent in her relationship with the petitioner, with whom she had entered into Ext.P1 agreement, is now left in the custody of respondents 4 and 5. Respondents 4 and 5 have appeared before Court along with the child. The learned Counsel for respondents 3 to 7 submits that the child is now in the custody of respondents 4 and 5. There is no question of abandonment of the child or illegal custody and confinement of the child. Respondents 4 and 5 are keeping the child in their custody on behalf of the 3rd respondent, who is at the moment not able to take the child to her place of employment. This petition for issue of a writ of habeas corpus is unnecessary and misconceived. The same may be dismissed, submits the learned Counsel for respondents 3 to 7.

In a petition for issue of a writ of habeas corpus, we are primarily concerned with the question whether there is any illegal confinement or detention of the alleged detenue. The alleged detenue in this case is an illegitimate minor child, aged about 2 years. The child is now in the custody of his maternal grandparents. The mother of the child is employed in Delhi and the father of the child, the petitioner herein, is employed abroad. We are unable to perceive any incidents of illegal detention or confinement in the custody of the minor child. If the petitioner has a grievance that he is entitled to get the child in his custody in preference to the claim of respondents 3 to 5, the mother and maternal grandparents, he must approach the Family Court and seek custody of the child. We are definitely satisfied that there are no circumstances justifying or warranting the invocation of the extraordinary Constitutional jurisdiction of this Court under Article 226 to issue a writ of habeas corpus.

This Writ Petition is, in these circumstances, dismissed. We do however hasten to observe that the dismissal of this Writ Petition will not in any way affect the right of the petitioner to seek custody of the child in accordance with law by initiating appropriate proceedings before the Family Court.