IMPORTANT POINT
The court affirmed that children's rights and their expressed wishes are paramount in custody disputes, overriding parental claims.

ORDER :

S.M.SUBRAMANIAM, J.

Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Habeas Corpus to direct the 6th respondent to produce the corpus or body of the detenus (petitioner's children) Adhithi & Aditya aged 14 years and 12 years respectively before this Court who are in the custody of the 7th respondent and hand over the custody of them to the petitioner, so that the children can be taken to the United States of America where they were living and studying in school.

The lis on hand is a habeas corpus petition seeking direction to the sixth respondent to produce the corpus or body of detenus, Adhithi aged 14 years and Aditya aged 12 years respectively.

2. The learned counsel for the petitioner Mr.Chandrasekaran would mainly contend that the minor children aged about 14 years and 12 years are under the illegal custody of the seventh respondent, who is the then husband of the petitioner. The petitioner and the seventh respondent married at Tirupathi, State of Andhra Pradesh on 01.09.2008 and their marriage was registered on the file of Sub Registrar at Valasaravakkam, Chennai. From and out of wedlock, two children born, one female and male. The daughter is now aged about 15 years, studying 9th standard. The son is aged about 13 ½ years, studying 8th standard. Both are studying in a CBSE school at Chennai and are under the custody of the seventh respondent who is none other than the father of the two children.

3. The learned counsel for the petitioner would submit that the marriage between the petitioner and the seventh respondent was dissolved by the Court in the United States of America-Texas. The Court made an observation that the primary residence of the children shall within the State of Texas until such time as Senthil Manalan's criminal appeal under Cause No.14-17-00088-CR, currently pending before the Fourteenth Court of Appeals is rendered on and thereafter within the United States of America, and the parties shall not remove the children from out of the State of Texas.

4. Relying on the said order, the learned counsel for the petitioner would submit that the seventh respondent had forcibly taken away the children from Texas to India and therefore, it is to be construed as an illegal detention. The seventh respondent, as per the petitioner, had taken the children forcibly in April 2023.

5. The learned counsel for the seventh respondent, Mr.Janakiram, would oppose by stating that no appeal is pending before the Court at United States of America. The seventh respondent has not been convicted and the punishment was waived-off. He has not forcibly taken away the children, but the children willingly accompanied the seventh respondent and are now staying along with him at Chennai wherein the paternal grand parents are taking care of the children.

6. For the limited purpose of deciding the habeas corpus petition, we have examined the children, namely Adhithi and Aditya. Adhithi, aged about 15 years and Aditya, aged about 13 ½ years, are bright students and they say they are the toppers in the school at Chennai. They continue to be the toppers and are feeling happy, both in the school as well as at the residence. They are being taken care of by their father/seventh respondent and grand parents who are residing with them at Valasaravakkam, Chennai. Both the children, while raising certain allegations against their mother, express their consent to live along with their father and the paternal grand parents. Their expressions are spontaneous and despite no questions raised by this Court, they have said that they are not willing to join with their mother. They are not even ready to see their mother, who is also present before this Court. When the children, with clear mind, express their wishes to stay along with their father and paternal grand parents, this Court is bound to consider the wishes and best interest of the children.

7. The best interest of the children cannot be considered