ORDER

S.VAIDYANATHAN, J., and A.D.JAGADISH CHANDIRA, J., This habeas corpus petition has been filed to direct the second respondent to produce the petitioner's minor child Kavipriyan, aged 4 years, from the custody of third respondent herein and handover the child to the petitioner.

2. The case of the petitioner is he married the daughter of third respondent one Priyanka on 10.03.2016 and out of wedlock a male child was born. It is stated by the petitioner that his wife had died on 24.04.2018 due to illness. He further stated that he recently came from abroad. The third respondent herein is none other than the mother-in-law of the petitioner. It is contended by the learned counsel for the petitioner that since his wife had passed away, before going abroad, he had left his child with the third respondent with a hope that the child will be returned to him. Unfortunately, the child is retained by the third respondent and she is refusing to hand over the child to the petitioner. Hence, the petitioner filed the present habeas corpus petition.

3. A reading of the pleading would make it very clear that the child was in custody of the third respondent from the age of 10 months and brought up by his grandmother, the third respondent. The child is aged 4 years now. During the pendency of the matter, this Court has earlier passed an order on 05.04.2022, referring the matter for mediation, apart from granting visitation right, as an interim measure, which is in force as on date. The learned counsel for the petitioner submitted that as per the order of this Court, he is visiting the child and now he wants the custody of the child from the third respondent.

4. From the pleadings, it is clear that the third respondent is the grandmother of the minor child and that there is no illegal custody of the child. Though it has been contended that the father is the natural guardian of the child after the demise of the mother, we are not inclined to decide that issue in a Habeas Corpus Petition filed under Article 226 of the Constitution of India, as it is for the petitioner to workout his remedy before the appropriate forum by filing G.W.O.P. and it is for the lower Court to decide the issue.

5. Since the petitioner has been enjoying the benefit of visiting the child, we are of the view that the minor child Kavipriyan, aged 4 years, Son of the petitioner, is not in illegal custody of the third respondent. Till the issue is resolved by the competent Court with regard to the custody of the child, the interim visitation right granted by this Court on 05.04.2022 shall be continued.

6. In view of the above, the Habeas Corpus Petition is closed.

(S.V.N.,J.) (A.D.J.C.,J.)

13.07.2022 Index: Yes/No bkn To:

3.The Public Prosecutor, High Court, Madras.

S.VAIDYANATHAN, J., and A.D.JAGADISH CHANDIRA, J., bkn H.C.P. No. 447 of 2022

13.07.2022