IMPORTANT POINT
The court established that custody decisions must prioritize the child's welfare and that unfounded allegations should not impede a parent's rights.

ORDER :

(Order of the Court was made by M.S.RAMESH, J.)

PRAYER: Habeas Corpus Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus, to direct the respondents to produce the body of the petitioner's minor daughter Navambikaa, aged about 5½ years, before this Court and hand over to the petitioner forthwith.

Heard Mr.Abudu Kumar Rajarathinam, learned senior counsel, appearing for the petitioner, Mr.A.Gokulakrishnan, learned Additional Public Prosecutor, appearing for the respondents 1, 2 and 5 and Mr.S.Prabakaran, learned senior counsel, appearing for the 3rd and 4th respondents.

2. The petitioner herein is the mother of a 5½ years old minor girl child, born through her husband K.Subramani. While the 3rd respondent herein is the elder sister of the petitioner, who ordinarily resides at Singapore, the 4th respondent is her mother, who resides at Mannargudi, Tamil Nadu.

3. When the petitioner got an employment at Chennai and was not able to locate a residential accommodation in time and also since both herself and her husband were employed, she had temporarily left her minor daughter in the custody of her mother/4th respondent herein on 14.10.2023 at Mannargudi. Thereafter, she used to visit her child every weekend. On 30.11.2023, when the petitioner was informed that her daughter was brought to Chennai, she had visited her in the presence of both the 3rd and 4th respondents. On the next day, i.e., on 01.12.2023, the petitioner's husband was arrested by the 1st respondent Police in connection with Crime No.477/2023 for the offences under Sections 5(m)(n)(l) and 6(1) of the Protection of Child from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') and remanded to judicial custody, based on the 3rd respondent's complaint that he had sexually assaulted his daughter. After this incident, both 3rd and 4th respondents had retained custody of the child and refused to hand her over to the petitioner. In this connection, the petitioner had given a written complaint dated 08.12.2023 to the Deputy Commissioner of Police, Adyar, for retrieving her child and for taking action against the 3rd and 4th respondents. Since there was no response to the complaint given, she has filed the present Habeas Corpus Petition (HCP), seeking for securing her child and handing over the custody to her.

4. When the HCP was listed before this Court on 10.01.2024, the learned counsel for the 4th respondent undertook to produce the minor child before us and accordingly, the minor child was produced on 12.01.2024. The 3rd and 4th respondents, accompanied by the 1st respondent Police, were also present before us. We had interacted with the petitioner, respondents 3 and 4, as well as the minor child, in our Chambers.

5. While the petitioner/mother informed us that the 3rd respondent herein is a divorcee and has no children and since she is emotionally attached to the petitioner's daughter, she had colluded with the 4th respondent and gave a false complaint against her husband, in order to retain the custody of the child. However, the 3rd and 4th respondents stated that the child had clearly narrated the incident to them that her father had sexually assaulted her by touching her private parts, which prompted the 3rd respondent to give a complaint before the jurisdictional Police. They further stated that it is only under the orders passed by the Child Welfare Committee, the custody of the child was handed over to them and that it is unsafe to hand over the custody to the petitioner, who was aware of the crime committed by her husband and has not reported the same to anyone.

6. We interacted with the petitioner's minor daughter, who was aged about 5½ years. Though very young, she had interacted with us with much clarity and maturity. As per her version, she intends to live under the care and protection of her mother/petitioner only, although she likes the 3rd and 4th respondents. She also stated that she likes her father