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2010 Supreme(Mad) 1036
High Court of Judicature at Madras
THE HONOURABLE MR.J USTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE C.S. KARNAN
Vijay Augustine
Versus
The Sub Inspector of Police, Chennai & Others
H.C.P.No.457 of 2010
Decided On :17-03-2010
For the Petitioner:B. Vijayakumar, Advocate.
For the Respondents: R1, V.R. Balasubramanian, A.P.P.
Pending family court proceedings should address custody issues, and filing a Habeas Corpus petition based on alleged hiding of the child is not a valid ground.
Headnote:
Habeas Corpus - Child Custody - The court rejected the petitioner's request for the production of his minor son, stating that the pending divorce and restitution of conjugal rights petitions in the family court should address the custody issue.
Fact of the Case:
The petitioner sought the production of his minor son through a Habeas Corpus petition, claiming that the child was hidden by the second respondent after visitation rights were granted to the petitioner.
Finding of the Court:
The court found that the pending divorce and restitution of conjugal rights petitions should address the custody issue, and rejected the petitioner's request for Habeas Corpus relief.
Issues: Custody of the minor child in the context of pending divorce and restitution of conjugal rights petitions.
Ratio Decidendi: The court held that the pending family court proceedings should address the custody issue, and filing a Habeas Corpus petition based on the alleged hiding of the child was not a valid ground.
Final Decision: The Habeas Corpus petition for the production of the minor son was dismissed by the court.
M. Chockalingam, J.
Invoking the writ jurisdiction of this Court one Mr.B. Vijay Augustine has brought forth this petition for production of his minor son Tarun Vaarin, aged 5 years.
2. The Court perused the affidavit filed in support of the petition and heard the learned counsel for the petitioner and the learned Additional Public Prosecutor.
3. As could be seen from the averments made, it is not in controversy that the marriage between the petitioner and the second respondent took place in the year 2004 and a child was born. They lived together till 2005 and thereafter, the second respondent developed intimacy with the third respondent. When the matter stood thus, the second respondent filed a petition for divorce before the Family Court, Coimbatore in S.M.O.P.No.787 of 2006 and the petitioner filed S.M.O.P.No.533 of 2007 for restitution of conjugal rights. While both the petitions are pending, the petitioner/husband has filed an interlocutory application for interim custody of the child in the Original Petition and the same was disposed of by giving visitation rights to the petitioner. Even though visitation rights was given to the petitioner, he was not allowed to see the child. Hence, this Writ of Habeas Corpus has brought forth before this Court.
4. The only contention urged by the learned counsel for the petitioner is that when the proceedings have been taken and the interlocutory application was disposed of giving visitation rights to the petitioner, the child was hidden by the second respondent. Under such circumstances, the petitioner has filed this Habeas Corpus petition.
5. After hearing the submissions made and looking into the materials available, the Court is of the considered opinion that the request of the petitioner does not require any consideration by this Court.
6. Admittedly, divorce petition and the petition for restitution of conjugal rights are pending before the Court of law. While the matter stood thus, in the interlocutory application for custody of child, visitation rights was granted in favour of the petitioner. Now, the petitioner has come forward with this petition as if the child was hidden by the second respondent. This cannot be a ground for filing a Habeas corpus petition before this Court. Such a ground cannot be considered for grant of the relief asked for by the petitioner. Hence, the request made by the petitioner is rejected. The Habeas Corpus Petition is dismissed.
