1994 Supreme(Mad) 190

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE ABDUL HADI
Kamashi - Appellant
Versus
A. Radhakrishnan and Others - Respondents
H.C.P. No. 2265 of 1993
Decided On : 17 February 1994

The welfare of the child is the paramount consideration in determining the custody of a child.

Headnote:

HABEAS CORPUS - CUSTODY OF CHILD - WELFARE OF THE CHILD - MOTHER'S RIGHT TO CUSTODY - FACTORS TO BE CONSIDERED - FINANCIAL STATUS OF THE PARTIES - ABILITY TO PROVIDE PROPER CARE AND EDUCATION - MORAL CHARACTER OF THE PARTIES - RELATIONSHIP BETWEEN THE PARTIES - AGE OF THE CHILD - BREAST-FEEDING - PENDING CRIMINAL CASE - JURISDICTION OF THE COURT.

Fact of the Case:

The petitioner, the mother of a 16-month-old child, filed a writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus directing the respondents to produce the child and hand over the same to her. The petitioner alleged that she was ill-treated by the respondents, who demanded dowry, and that she was forced to live with her parents for about five months prior to the filing of the petition. She further alleged that her husband took away the child about two months prior to the petition and that she caused a lawyer's notice to be issued asking for the return of the child, but he did not do so. After the death of her husband, she approached the respondents to get back the child but it was of no avail. The respondents, in their counter-affidavit, denied the allegations of dowry demand and ill-treatment. They stated that the petitioner deserted her husband on or about April 15, 1993 and that the child was only with them since then. They claimed that they were bringing up the child with all affection and care. They also alleged that the petitioner had poisoned her husband and that she was having an illicit relationship with one Raja Bahadur, the husband of her sister Mallika.

Finding of the Court:

The Court held that the petitioner had not placed the entire truth before the Court and that she had not made out a case for the issue of a writ of habeas corpus. The Court noted that the petitioner had not disclosed the full facts about the Panchayat held on 4-11-1993, in which she allegedly stated that she did not want to live with her husband and left the child in her husband's place. The Court also noted that the petitioner had not provided any evidence to support her claim that she was ill-treated by the respondents or that her mother was beaten badly by them. The Court further held that the petitioner had not proved her financial status or her ability to maintain the child. The Court also noted that the child was not being breast-fed by the petitioner and that it was being properly cared for by the respondents.

Issues: 1. Whether the petitioner had made out a case for the issue of a writ of habeas corpus. 2. Whether the petitioner was entitled to the custody of the child. 3. Whether the respondents were entitled to the custody of the child.

Ratio Decidendi: 1. The Court held that the petitioner had not made out a case for the issue of a writ of habeas corpus because she had not placed the entire truth before the Court and had not provided sufficient evidence to support her claims. 2. The Court held that the petitioner was not entitled to the custody of the child because she had not proved that she was a fit and proper person to have custody of the child. The Court noted that the petitioner had not disclosed the full facts about the Panchayat held on 4-11-1993, in which she allegedly stated that she did not want to live with her husband and left the child in her husband's place. The Court also noted that the petitioner had not provided any evidence to support her claim that she was ill-treated by the respondents or that her mother was beaten badly by them. The Court further held that the petitioner had not proved her financial status or her ability to maintain the child. 3. The Court held that the respondents were entitled to the custody of the child because they were the natural guardians of the child and they had been properly caring for the child.

Final Decision: The petition was dismissed with the observation that it was open to the petitioner to approach the ordinary Courts under the Hindu Minority and Guardianship Act as well as the Guardians and Wards Act and obtain the appropriate reliefs.