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2024 Supreme(Online)(MAD) 30423
HIGH COURT OF MADRAS
Hon`ble Ms.Justice R.N.MANJULA
Kalaiyarasi – Appellant
Versus
The Superintendent of Police – Respondent
The court upheld the principle that the wishes and welfare of the minor must be paramount in custody matters, particularly in cases involving allegations of kidnapping.
Headnote:
Habeas Corpus - Minor Custody - IPC, POCSO Act - Court Order for Investigation
Fact of the Case:
The petition was filed by a mother seeking custody of her 17-year-old daughter, who had been kidnapped. The daughter had been traced by police and subsequently faced a second kidnapping by the same perpetrator after being returned to her mother's custody.
Finding of the Court:
The court found that the daughter expressed her desire not to return to her mother due to personal grievances. The court decided to place her in a Children's Home and instructed a Child Welfare Committee to decide on her custody.
Issues: Whether the minor should be returned to her mother or placed under the care of a Child Welfare Committee due to her expressed wishes and surrounding circumstances.
Ratio Decidendi: The court emphasized the importance of considering the wishes of the minor and the surrounding circumstances affecting her well-being in custody decisions.
Final Decision: The court ordered the child to be placed in a Children's Home while the Child Welfare Committee conducts an enquiry into her custody.
[Order of the Court was made by R.N.MANJULA, J.] This Habeas Corpus Petition has been filed by the mother of the detenu seeking to produce her daughter namely Kayalivizhi, D/o.Rengasamy, aged about 17 years, before this Court.
2. Heard Mr.S.Krishnan, learned counsel appearing for the petitioner and Mr.RMS.Sethuraman, learned Additional Public Prosecutor appearing for the respondents 1 to 4.
3. Mr.S.Krishnan, learned counsel for the petitioner submitted that when the fifth respondent kidnapped the minor daughter of the petitioner on 15.02.2024, based on the complaint given by the petitioner, the 3rd respondent police traced out the petitioner-s daughter and registered an FIR against the fifth respondent in Crime No.46 of 2021 on 16.02.2024 on the file of the third respondent police for the offence under Sections 363 IPC and 5(h), 5(i) r/w 6(1) of the Protection of Children from Sexual Offences Act, 2012 and the same was transferred to the fourth respondent police and investigation is going on. The 3rd respondent arrested the 5th respondent and remanded him before Judicial Magistrate, Alangudi on 24.02.2024 and the petitioner-s daughter was produced before the District Child Welfare Committee on 27.02.2024 and thereafter handed over the custody to the petitioner on condition that the petition shall produce the detenu once in a month till she attains majority. Thereafter, the 5th respondent came out on bail and again on 29.04.2024, he kidnapped the petitioner-s daughter from her sister-s house at knife point. Therefore, the petitioner lodged a complaint before the 2nd respondent, but the 2nd respondent did not take any fruitfulsteps to find out the petitioner-s daughter. Hence, this petition.
4. When the matter is taken up for hearing today, the alleged detenu was produced before this Court. Her birth certificate was produced before this Court and it states that her date of birth is 10.09.2006 and hence, she has not attained majority. The petitioner is also present before this Court. However, the detenu expressed strong objection to go along with the petitioner though she admits that the petitioner is her mother.
5. The detenu-s parents appeared to have got some misunderstanding and they got separated. It is the allegation of the detenu that the mother has developed some illegal intimacy with a third person and she is being harassed by both of them. As she is in love with the 5th respondent, she went along with the 5th respondent on her own volition. Hence, she prefers to stay in the Children-s Home instead of going along with her mother/petitioner herein.
However, it is learnt that a criminal case is pending against the 5th respondent under the POCSO Act. In the above varied circumstances, it is appropriate to produce the detenu before the Child Welfare Committee, Pudukkottai and on her production the Chid Welfare Committee shall decide the custody of the child by making an enquiry and by thoroughly appreciating the circumstances surrounding the child. The petitioner is at liberty to make her representation to the Child Welfare Committee when the child is produced before the Committee for conduting an enquiry.
