Back
HIGH COURT OF KERALA
K.T.SANKARAN, M.L.JOSEPH FRANCIS, JJ
K PRASAD – Appellant
Versus
RAJAGOPALA PILLAI Advocate -SRI BABU S NAIR – Respondent
WRIT PETITION (CRIMINAL) 317/2012
Custody - Child Custody - Hindu Marriage Act - Section 26 - The court emphasized the procedural pathway under Section 26 of the Hindu Marriage Act for custody determination, affirming that the petitioner should seek interim orders from the Family Court rather than pursuing habeas corpus.
Fact of the Case:
The petitioner, Pooja, returned to India with her child and sought to regain custody after Mahesh, her estranged husband, filed a habeas corpus petition to secure the child's custody, which had earlier been granted to him by the court.
Finding of the Court:
The court found that Pooja's appropriate remedy was to seek interim custody through the Family Court where divorce proceedings were ongoing, rather than through habeas corpus.
Issues: Whether Pooja could seek custody of her child through a writ of habeas corpus instead of utilizing the provisions of the Hindu Marriage Act.
Ratio Decidendi: The court held that the proper remedy for custody disputes lies within the provisions of the Hindu Marriage Act, specifically Section 26, and that individuals must adhere to established legal processes for custody applications.
Final Decision: The Writ Petition (Criminal) was disposed of, directing the petitioner to pursue interim custody through the Family Court.
J U D G M E N T
K.T.Sankaran, J.
Mahesh, the son of the third respondent married the first petitioner (Pooja). A child (Surya Sankar), now aged 5 years was born in that wedlock. Pooja and Mahesh were in a Gulf country for quite some time. It is stated that on 21.3.2012, Pooja and the child returned to India. According to Pooja, she was compelled to leave for India under certain compelling circumstances. On 23.3.2012, Mahesh filed W.P.(Crl) No.140 of 2012 before this Court for the issue a Writ of Habeas Corpus directing Pooja to produce the child before Court. This Court disposed of W.P.(Crl) No.140 of 2012, as per the judgment dated 12.4.2012. The operative portion of the judgment reads as follows :
“3. In the result, we order that the child involved in this petition by name Surya Sankar shall go with the father, i.e., the petitioner and will be with him in his custody, control and guardianship until otherwise ordered following due procedure by any jurisdictional family court in India. We direct the first respondent to hand over to the petitioner's counsel forthwith the passport, birth certificate and any other belongings of the child in question. We clarify that this judgment will not stand in the way of the first respondent moving appropriate family court for necessary orders, including for visitorial or custody rights. Until any such orders are obtained the present situation will continue as ordered hereby.”
2. Thereafter, Mahesh filed O.P.(HMA) No.582 of
2012 before the Family Court, Thiruvananthapuram, praying for divorce. He also prayed for permanent custody of the child.
O.P.(HMA) No.582 of 2012 is pending.
3. According to the petitioner, after the judgment in W.P.(Crl) No.140 of 2012, a change of circumstance has occurred. It is stated in the Writ Petition (Crl) thus:
“Now a serious change of circumstance occurred in the matter. Sri.Mahesh went abroad on 16.6.2012 leaving the child to the custody of his father, the 3rd respondent herein. It is against the judgment of this Hon'ble Court in W.P.(Crl) No.140/2012 dated 12.4.2012.”
4. If Pooja wanted to have interim custody of the child, she could have very well filed an application for interim custody in O.P.(HMA) No.582 of 2012, under Section 26 of the Hindu Marriage Act. Had such an application been filed, the Family Court would have disposed of the same in accordance with law. Why Pooja did not file such a petition is stated in paragraph 6 of the Writ Petition (Crl), which reads as follows :
“In the meantime Sri.Mahesh, the husband of the
1st petitioner herein filed O.P.(HMA) No.582/2012 before the Family Court, Thiruvananthapuram for getting divorce and also prayed for permanent custody of the minor child Surya Sankar. The petitioners herein approached the counsel before the Family Court, Thiruvananthapuram and requested to file a custody application of the child in their favour. The counsel advised them that only an application for permanent custody of the child can be filed before the Family Court, since the judgment of the Hon'ble High Court granting custody of the child to his father is existing. It is also advised that it will take more time since the father of the child went abroad. During that time gap anything will be happened to the child. Hence the petitioners herein are approached this Hon'ble Court for the production and granting custody of the minor child.”
5. The prayer in the Writ Petition (Crl) is to issue a Writ of Habeas Corpus commanding the respondents to produce the minor child Surya Sanker before Court and to release him to the petitioners. Petitioners 2 and 3 are the parents of Pooja. We passed an interim order directing the third respondent to produce the child before Court. The child was produced and Pooja had an opportunity to fondle the child.
6. We are of the view that the remedy of Pooja is to move the Family Court for appropriate interim orders. It is made clear that she can do so in terms of the judgment dated 12th April, 2012 in W.P.(Crl) No.140 o
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
