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2009 Supreme(Mad) 1356
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE C.T. SELVAM
R. Nirmala
Versus
Y. Shanthi & Others
Habeas Corpus Petition No.501 of 2009
Decided on: 23-04-2009
For the Petitioner:V. Parthiban, Advocate.
For the Respondents:AR.L. Sundaresan, S.C, R1, to R3, AL. Gandhimathi, Advocates. R2, N.R. Elango, Addl. Public Prosecutor.
The welfare of the minor child and the actions of the parties involved are paramount in determining custody disputes.
Headnote:
Habeas Corpus - Custody Dispute - Guardians and Wards Act - Section 363 IPC - G.W.O.P.No.72 of 2007 - [Guardians and Wards Act, 1890, Section 363 IPC] - The court discussed the custody dispute over a minor child and the application of the Guardians and Wards Act, as well as Section 363 of the Indian Penal Code. The judgment highlighted the importance of the welfare of the minor child and the rights of natural guardians, while emphasizing the specific circumstances of the case and the actions of the parties involved.
Fact of the Case:
The petitioner filed a Habeas Corpus Petition seeking custody of her sister's minor child, who was allegedly in the illegal detention of the first respondent, the second wife of the child's father. The petitioner claimed that she had been taking care of the child since the death of the child's mother and that the father had taken the elder son from her custody, leaving the minor child with her. The father contested the allegations and sought custody of the child.
Finding of the Court:
The court found that the minor child had been in the custody of the petitioner from birth until the father took the child without her knowledge. The court emphasized the importance of the child's welfare and the actions of the parties involved, ultimately ruling in favor of the petitioner's custody of the minor child, subject to the pending legal proceedings.
Issues: The main issue was the custody dispute over the minor child, involving allegations of illegal detention and conflicting claims between the petitioner and the child's father.
Ratio Decidendi: The court emphasized the significance of the child's welfare and the actions of the parties involved in determining custody. It highlighted the specific circumstances of the case and the rights of natural guardians, while considering the pending legal proceedings.
Final Decision: The Habeas Corpus Petition was allowed, granting custody of the minor child to the petitioner, with provisions for the father to have custody during weekends, subject to the pending legal proceedings.
Elipe Dharma Rao, J.
1. The petitioner has filed this Habeas Corpus Petition for a direction to the respondents to produce the petitioners sisters minor child viz., Deepak Kumar, Son of Yuvanesh Pradeep Kumar, aged about 8 years, alleged to be in the illegal detention of the 1st respondent, who is the second wife of the said Yuvanesh Pradeep Kumar, before this Court and hand over the custody of the detenu to the petitioner.
2. The case of the petitioner is that the marriage between her sister Sumathi and one Yuvanesh Pradeep Kumar took place on 210. 1990 and out of the said wedlock, two children, viz., Manoj Kumar and Deepak Kumar (the detenu herein), were born on 22.01.1992 and 110. 2000 respectively. It is stated that the father of the children used to work abroad mostly in sea oil field and at that time, the mother and the children used to live along with the petitioner and her family. According to the petitioner, her sister Sumathi, the mother of the children, died due to cancer on 24.01.2001 and thereafter, the petitioner took care of both the children. It is stated that the father of the children, Yuvanesh Pradeep Kumar, remarried on 31.03.2004 and took his first son from the custody of the petitioner, leaving the second minor son with the custody of the petitioner and from the date of birth, the minor child is with her, i.e. for a period of about eight years. According to the petitioner, now, all of a sudden, on 03.04.2009, when the child was returning from School, the 1st respondent, with the help of some bad elements, kidnapped the child and to that effect, a complaint was lodged before the 2nd respondent police on 04.04.2009, which was registered as a case in Crime No.248 of 2009 under Section 363 IPC. According to the petitioner, a property measuring 5283 sq.ft. in Survey No.549/1 at Pallikkaranai Village, stands in the name of the mother of the children, who handed over the said property to her brother for the welfare of the children and in order to grab the said property, the father of the children filed civil suit against the petitioner. The petitioner also filed a petition before the Principal District and Sessions Judge, Chengalpattu, in G.W.O.P.No.72 of 2007 against the father of the minor child under the Guardian and Wards Act for permanent custody of the child, wherein, an order of injunction was passed in I.A.No.633 of 2007, which was in force till 210. 2007, and thereafter, it was not extended. Since no purpose is served by filing the aforesaid complaint, the petitioner has approached this Court by filing the present Habeas Corpus Petition.
3. After receipt of notice, on 20.04.2009, the father of the minor child along with the child appeared before the Court. We have examined the child, Deepak Kumar. The child expressed that he is happy with the writ petitioner and her daughter and after spending some time with his father, he will go back to the writ petitioner. The father of the child sought the permission of the Court to file an impleading petition for impleading him as party respondent No.3, and also requested time to file counter affidavit on the ground that the child is with him and he is the natural guardian of the minor child. Hence, the case was adjourned today.
4. Today, an impleading petition to implead the father of the minor as party respondent No.3 in the Hebeas Corpus Petition is filed. We have ordered the impleading petition. A counter affidavit has also been filed by the 1st respondent.
5. We have perused the affidavit filed by the 3rd respondent, the father of the minor child, in support of the impleading petition, wherein it is stated that the habeas corpus petition is filed by making false allegations and he took an objection for not impleading him as a party respondent. It is further asserted that the minor child is not in the custody of the writ petitioner and the child is in his lawful custody and the child is happy with him along with his elder brother, Manoj Kumar, aged abo
