Custody decisions prioritize child welfare, especially under coercive circumstances requiring judicial intervention.

O R D E R

(Order of the court was delivered by G.R.Swaminathan, J.)

Heard both sides.

2.The petitioner got married to one Sudha on 01.12.2014. Two children were born through the wedlock. The elder one is a daughter by name Silambarasi. The younger one by name Mukil Aarav is aged about 2 ½ years. The relationship between the petitioner and his wife came under strain. The petitioner's wife left the matrimonial home along with the younger son. The petitioner gave a complaint before All Women Police Station, Tenkasi on 29.10.2024. Enquiry was conducted on the same day. The petitioner had gone to the station along with his daughter. The petitioner's wife was also summoned to the station. The specific case of the petitioner is that under coercive circumstances, he was made to part with the custody of the daughter. The learned Additional Public Prosecutor would however deny the said allegation. Seeking custody of the children, this habeas corpus petition has been filed.

3.On 03.01.2025, the following order was passed:-

“The petitioner is the father of the minor children. His wife Sudha / fourth respondent had eloped with Jebastin (R5). The specific case of the petitioner is that after the fourth respondent eloped, the petitioner went to the Inspector of Police, All Women Police Station, Tenkasi to lodge a complaint on 29.10.2024. He was accompanied by his elder child who is the daughter aged about 4 ½ years. The petitioner alleges that he was made to part with the children in the station itself. In this background, the present Habeas Corpus Petition came to be filed.

2. Notice was ordered. The fourth respondent had told the Inspector of Police, All Women Police Station that she would herself produce the children before this Court. She had also engaged a counsel. But today, she had made herself scarce. Her phone has been switched off. She is presently not reachable. We deprecate the conduct of the fourth respondent. We direct the second respondent to ensure that the minor children are produced before us on 06.01.2025.

3. Call on 06.01.2025 at 10.30 a.m.”

When the matter was taken up on 06.01.2025, the petitioner's wife appeared before us along with the children.

4.In normal circumstances, we would have relegated the petitioner to go before the jurisdictional Family Court or Civil Court for getting custody of the children.

5.In this case, we are constrained to take a different approach. The petitioner has made a specific allegation that his wife is in illicit intimacy with the fifth respondent.

6.A host of photographs have been enclosed in the typed set of papers. The learned counsel for the petitioner even asserted that there are even more disturbing videos indicating that the petitioner's wife was found in a compromising position with the fifth respondent. The petitioner's wife has not filed any affidavit before us alleging that they are morphed photographs. Therefore, for the purpose of this habeas corpus petition, we proceed on the footing that there is considerable force in the allegations made by the petitioner.

7.Vide order dated 05.12.2024 in H.C.P.(MD)No.1244 of 2024, we had held as follows : -

3. The only question that calls for consideration is whether the custody of the minor children should be given to the petitioner. Though the father is the natural guardian, custody of the children with the mother cannot be said to be illegal. In normal circumstances, we would have relegated the petitioner to go before the civil Court / Family Court and file GWOP for getting relief. But the special facts and circumstances of this case demand a departure. The petitioner has been running an electronic service center at Sayalkudi, Ramanathapuram. Priya and the petitioner were residing therein along with their children. The matrimoni