The natural guardian's custody rights over infants in a Habeas Corpus Petition.

JUDGMENT

(Prayer: Petition filed under Article 226 of the Constitution of India, seeking for issuance of a Writ of Habeas Corpus directing the respondents 1 to 5 to produce the body or person of the infants namely Chithra Jeevi(Girl) and Chithra Jeevan(Boy) aged about six months, born on 04.04.2023 to the petitioner's daughter, Chithra, who are in the custody of the sixth respondent and hand over the custody of the infants to the petitioner as per the representation dated 13.07.2023 within a time frame that may be stipulated by this Court.)

J. NISHA BANU, J.

1. This Habeas Corpus Petition has been filed by the petitioner seeking for a direction to the respondents 1 to 5 to produce the body or person of the infants namely Chithra Jeevi(Girl) and Chithra Jeevan(Boy) aged about six months, born on 04.04.2023 to the petitioner's daughter, Chithra, who are in the custody of the sixth respondent and hand over the custody of the infants to the petitioner as per the representation dated 13.07.2023 within a time frame that may be stipulated by this Court.

2. Factual matrix in a nutshell is that the marriage between the petitioner's daughter Chithra and the sixth respondent was solemnized on 17.06.2018 at Vasudevanallur, Tenkasi District. Out of the wedlock, they were blessed with twins on 04.04.2023. Subsequently, Chithra died on 09.05.2023. After the demise of Chithra, there is a dispute between the petitioner and the sixth respondent. In this regard, the petitioner has made a representation to the first respondent on 24.07.2023 seeking the custody of her grandchildren. The same has not been considered. In such circumstances, this Habeas Corpus Petition has been filed by the petitioner.

3. Earlier, when the matter came up for hearing on 06.10.2023, the parties were present before this Court and considering the facts and circumstance of the case, the matter was referred for mediation. Subsequently, when the matter was listed on 06.11.2023, it was reported that the mediation has failed.

4. Today, when the matter came up for hearing today, the parties are present before this Court.

5. The learned counsel appearing for the petitioner would submit that the sixth respondent failed to protect and save the life of his own wife. Now, he is working as an Assistant in the Revenue Department and therefore, he cannot look after the infants personally and the infants are at present in the custody of strangers under the guise of relatives and therefore, for the welfare of the infants, the custody of the infants is to be handed over the petitioner, who is the grandmother of the infants.

6. The learned counsel appearing for the petitioner in support of his submission, relied on the following decisions:

(i) In Rosy Jacob v. Jacob A.Chakramakkal reported in (1973) 1 Supreme Court Cases 840;

(ii) In Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashankar Joshi reported in (1992) 3 Supreme Court Cases 573;

(iii) In Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another reported in (1984) 3 Supreme Court Cases 698; and

(iv) In S.Annapoorni vs. K.Vijay reported in 2022 (5) CTC 689.

7. The sixth respondent filed a counter affidavit stating that his marriage with the daughter of the petitioner was a love marriage and there was no dispute between them. After marriage, the fact that the deceased was chronic TB patient came to light. Suppressing the said fact, the marriage was solemnized. However, the sixth respondent took steps at his level best to save his wife. However, she died due to multiple diseases after giving birth to the twins. After the demise of his wife, he being the natural guardian of the children, is taking care of the children with the help of his mother and the writ petitioner is not entitled to get the custody of his children and therefore, this writ petition is liable to be dismissed.

8. Heard the learned counsel appearing on either side and perused the materials available on record.