Judgment:
In the High Court of Judicature at Madras Dated:
27. 06.2014 Coram :- THE HON'BLE MR.JUSTICE V.DHANAPALAN and THE HON'BLE MR.JUSTICE G.CHOCKALINGAM Habeas Corpus Petition No.1355 of 2014 G.Renukadevi ... Petitioner/Mother of detenu -vs- 1. The Superintendent of Police, Tirupur (Rural), Tirupur District.
2. The Inspector of Police, Uthiyur Police Station, Tirupur District. Crime No.56 of 2014 3. K.S.M.Karthikeya 4. K.S.Aravind ... Respondents Prayer: Habeas Corpus Petition is filed under Article 226 of Constitution of India, seeking a direction to the respondents to produce the body of the detenu by name Kundavi, aged 3= years before this Court, set her at liberty and entrust her to the lawful custody of the petitioner, who is the mother of the detenu. For petitioner : Mrs.Nalini Chidambaram, Senior Counsel For Mrs.C.Uma For R1 & R2 : Mr.M.Maharaja Addl. Public Prosecutor For R3 : Mr.N.Natarajan, Senior Counsel For Mr.R.Vivekanandan For R4 : Mr.N.R.Elango, Senior Counsel For Mr.Krishnamoorthy ******
ORDERV.Dhanapalan,J., The petitioner, who is mother of the detenue, has moved this petition for a direction to the respondents to produce the body of the detenu by name Kundavi, aged 3= years before this Court, set her at liberty and entrust her to the lawful custody of the petitioner, who is the mother of the detenue.
2. The facts pleaded by the petitioner / mother of detenue in the affidavit filed in support of the petition are as under: i) The petitioner married the 3rd respondent on 01.11.2001 at Coimbatore and at the time of marriage, her parents presented him 100 sovereigns of gold jewels, diamond bangles, ear stud, other house-hold articles, cash of Rs.3,00,000/- and also a car to the value of Rs.3,00,000/-. After marriage, they were living in a joint family at Kuttapalayam and soon after the marriage, the 3rd respondent has taken away all jewels and other articles and left her company also; ii) Out of their wedlock, they were blessed with two daughters, namely, K.Mithra, aged about 11 years and K.Kundavi, aged 3 years. She has submitted that to her shock and dismay, the 3rd respondent has not changed his attitude and he developed the habit of demanding money from her parents for each and every petty expenses. Her husband has also addicted to alcohol and was in the habit of assaulting her in front of her tender aged children; iii) She has further submitted that she underwent various kinds of torture at the hands of 3rd respondent and has undergone agony for the past 10 years. The 4th respondent herein also joined hands with her husband and started ill-treating her. Having left with no other option, she has decided to go out of the matrimonial home apprehending danger to her and children. Meanwhile, 3rd and 4th respondents have requested one Thiru Madhusudan, a childhood friend of her husband to intervene in the family dispute for settling the issue, but the problem has not come to an end. The 3rd respondent / husband has gone even to the extent of making character assassination against her and the said Madhusudan also advised the 3rd respondent to correct himself. iv) On 26.03.2014, she was with her sister at Coimbatore on account of death of her sister's mother-in-law and the 3rd and 4th respondents came there on 27.03.2014, picked up quarrel and also assaulted her. Her father made an attempt to prevent her from assaulting, due to which, he was also attacked. Owing to the said attack, she has suffered temporary loss of hearing in her left ear and the respondents 3 and 4 also threatened her to do away with her life, which resulted in lodging a complaint with the Inspector of Police, All Women Police Station, Puliyankulam and the Inspector of Police called her husband over phone and warned him. v) It was on 10.04.2014 that 3rd and 4th respondents along with few others came to her parents' house and searched her 2nd daughter Kundavi. When it was reported to them that she was not available there, they all left the house. Thus, apprehending danger, she stayed at the residence of her brother's father-in-law at Anakkadu. After coming to know the same, they came to the said house on 11.04.2014 for abduction of her daughter Kundavi, but their attempts were defeated by her relatives. In continuation of their attempt, on 27.04.2014 at about 11:00a.m., the respondents 3 and 4 along with 30 others came to her parents' house at Sankarandampalayam and forcibly snatched away her 2nd daughter Kundavi, aged 3 years at gun point under threat and coercion without even considering her age and health condition. The said occurrence was reported to the 2nd respondent, who in turn registered a case in Crime No.56 of 2014 for offences punishable under Sections 147, 148, 363, 323, 506(ii) IPC and Section 3 of the TNPPDL Act r/w Section 25(i)(A) of the Arms Act against the respondents 3, 4 and 30 others. vi) It is alleged by her that the accused persons in Crime No.56 of 2014 came in 3 vans, 2 cars and other vehicles on 27.04.2014 at about 11:00a.m., forcibly entered her house, assaulted her and finally snatched her 2nd daughter besides damaging the car of her father. Even after the FIR, the 2nd respondent has not taken any action against accused persons, which forced her to report the matter to the 1st respondent. Pursuant to which, respondents 3 and 4 have filed anticipatory bail petition before the learned Principal Sessions Judge, Tirupur and have subsequently withdrawn the same. Thereafter, they filed Crl.O.P.No.11499 of 2014 before this Court on 05.05.2014 and obtained anticipatory bail on 07.05.2014. In the petition for anticipatory bail, they have wrongly stated the age of 2nd daughter as 5 years old and has been living with her father. It was further represented as if the 3rd respondent has filed G.W.O.P., which has not been numbered so far, but to the contrary, he has not filed any such petition and she has not received any notice till date, thereby misled this Court. vii) The petitioner has firmly stated that the date of birth of her 2nd daughter is 23.11.2010 and is aged 3 = years and therefore, she is the natural guardian for the female child. From 27.04.2014 till to date, she could not be able to know the whereabouts of her daughter Kundavi and the issue relating to the custody has no matter in view of the forcible abduction of her daughter aged 3 = years. It is alleged that her attempt to trace her daughter ended in futile, because respondents 3 and 4 have been frequently changing the place of her confinement to prevent her and the investigating agency to trace the detenue. Moreover, the 3rd respondent is suffering from some kind of mental imbalance and therefore, he has exhibited his attitude to endanger the life of her daughter. Therefore, the petitioner has approached this Court seeking for the above relief.
3. The 3rd respondent has filed a counter, refuting all allegations made by the petitioner, besides stating as under: i) That at the time of marriage only 60 sovereigns of gold were gifted to the petitioner by her father and the same was pledged in Canara Bank, Sankarandampalayam by her brother Sethurajeshwaran ii) That he is an organic farmer and member in Union Planning Commission, Committee on Conservation of Native Livestock and also South Asian Pastoral Parliament, United Nations Environment Programme, Board Member of TNAU appointed by the Hon'ble Governor of Tamil Nadu and is actively involved in managing several Charitable Trust meant for the farming community in and around Erode. He got married with the petitioner on 01.11.2011 and out of wedlock, they were blessed with two daughters, born on 07.12.2002 and 23.11.2010 respectively. The eldest daughter is now 11 years old and was named as Mithranjali Karthikeya at birth and her name was later on changed to Mithra Karthikeya by due notification in the gazette and the younger daughter is now aged 3 = years and is named as Kundavi Karthikeya. iii) It is submitted by the 3rd respondent that the petitioner had difficulties in her inter personal relationship right from her childhood and she has suffered childhood trauma in successive boarding schools due to the marital discord between her parents. The petitioner had also taken psychological counselling from Nitya Gurukula, a famous counselling centre at Coimbatore and was benefited by it and the 3rd respondent took up a house in Parsn Sesh Nestle a post gated community in Coimbatore so as to facilitate both the daughters to comfortably attend school at Coimbatore. The elder daughter was at KSIRS, an international school in Std V and the younger daughter was attending a Montessory at Sarvam, Race Course, Coimbatore. iv) It is further submitted that the petitioner used to pick up quarrel with him for filmsy reasons in the presence of domestic servants and neighbours and he would advise her to avoid giving children fast food like Noodles, Pizza and Coke. She claimed that he was controlling her needlessly and for no reason, she feared that the maid servant would poison her and children. When he was away on 2nd week of July, the petitioner locked herself and her children in a room to escape from the maid. The youngest daughter was very much attached with one of their neighbours in whose house the petitioner used to spend a lot of time. All of a sudden, she shouted so badly with the neighbour and made them traumatized by the episode, for which, I had to apologize to the maid before relieving her from employment and prevented the neighbour from taking any action against her. In the midst of the academic year, she wanted to move the elder daughter to a residential school and he also thought of keeping her child away from the daily conflict and oppressive behaviour of the petitioner and hence, he paid the initial fee of Rs.1,42,000/- to the school and later paid a sum of Rs.70,000/- by spending a sum of Rs.2,12,000/- for the current academic year alone. v) While so, the petitioner without his consent, has taken away many vital records like family ration card, gas supply book, original birth certificates etc., took the younger daughter and went to her parents' house. The child, who was attending Montessori at Coimbatore was kept idle at home. She then enrolled herself for a Psycho Drama Course at Woman's Christian College, leaving the little daughter in the care of her sister in law's family, who are already burdened with their own problems. He is periodically visiting her elder daughter at her residential school and used to visit her younger daughter at the petitioner's home. Inspite of her father as well as his father's request to return to his house, the petitioner has refused to join him and she wants to be free. vi) In the meanwhile, the petitioner started to befriend with his friend, namely, B.A.Madhusudan, who under the pretext of interceding with the petitioner, gained the confidence of the petitioner's household. She has always been spending long hours talking to him from her mobile phone number 8754021833 to his mobile numbers 9444444910 and 9445944910 and he has also obtained an add on card for the petitioner with number 9962593410. The said Madhusudan has got separated from his wife and has a little child, who is now in his wife's custody. Of late, the petitioner has been demanding divorce by mutual consent and has been pestering him to give her large sum of money. To make the matter worst, the petitioner has been leaving the younger daughter in the care of distant relatives without appropriate supervision needed for a little girl and has been crying to see her parents. On hearing about it, he went and collected his daughter for taking care of her at his house at Coimbatore and he is very earnest about salvaging his marriage and protecting his children. It is submitted that he has never demanded dowry from the petitioner and he is only bearing the expenses of the petitioner and children. vii) It is stated in the counter that he filed G.W.O.P. on 23.04.2014 before the Family Court, Coimbatore in S.R.No.2974 of 2014 under Section 7 r/w 12 of the Guardian and Wards Act seeking for a declaration that the 3rd respondent is the natural guardian for his minor daughter Kundavi and to restrain from removing his minor daughters Mithra and Kundavi from his custody. Later on, the above petition was numbered as G.W.O.P.No.525 of 2014, notice was sent to the petitioner and the case stood posted to 11.06.2014 for hearing. On 23.04.2014, he sent a legal notice to the said Madhusudan through his counsel calling upon him to refrain from disturbing his life and a copy of the same was also sent to the petitioner, which was duly received by her. viii) It is also stated that on 27.04.2014, the petitioner gave a complaint against him and his brother Aravind and 30 others at Udhiyur Police Station for the alleged offences under Sections 147, 148, 363, 323 and 506(ii) IPC, under TNPPDL Act r/w 25(1)(A) of Arms Act and the same was registered in Crime No.366 of 2014 and he was granted anticipatory bail in Crl.O.P.No.11499 of 2014 on 07.05.2014. After grant of anticipatory bail, the petitioner had lodged another complaint before All Women Police Station, Kangayam for dowry harassment and the same was registered in Crime No.7 of 2014 for the alleged offences under Sections 498A, 406, 294(b) and 506(ii) IPC and Section 4 of TNPHW Act. On 12.05.2014, he and his brother surrendered before the learned Judicial Magistrate, Kangayam and executed sureties to comply with the conditions imposed by this Court. When he came out of the Court on execution of sureties, the Inspector of Police, All Women Police Station, Kangayam and the Inspector of Police, Vellakovil arrested him and his brother in front of the Court premises and took them to the Police Station. On 29.04.2014 itself, she gave a complaint before the Superintendent of Police, Tirupur and the same was suppressed by the petitioner before this Court, when she intervened in the anticipatory bail petition on 7th May, 2014 about the pendency of the complaint. The above suppression of fact is amounting to fraud committed on Court by the petitioner as well as the 2nd respondent ix) It is finally submitted by the 3rd respondent that after considering all the above facts, on 15.05.2014, learned Judicial Magistrate, Kangayam was pleased to grant bail to them. It was pleaded that if the custody of his child is handed over to the petitioner, it will affect the safety and welfare of his child. When the petition under Guardian and Wards Act is pending before the Competent Forum, the petition moved before this Court will exhaust the remedy available in law and therefore, it is prayed that the present petition is liable to be dismissed.
3. A reply affidavit / rejoinder has been filed by the petitioner in response to the counter filed by the 3rd respondent by denying the statement made in the counter with regard to gifting of only 60 sovereigns of gold as also her interpersonal relationship right from her childhood. The petitioner states that it is the 3rd respondent, who developed extra marital relationship with one Padmini Balagur in Malaysia and avoided speaking with the petitioner. The 3rd respondent lived in Malaysia for a period of two years and was subsequently, arrested for his overstay on a tourist visa and he also incurred loss in business, which forced him to return to India in April, 2004. Besides denying all averments levelled against her to be false, the petitioner has stated that she has never tried to befriend with Madhusudan and the mobile number indicated by her husband stands in the name of M/s.Indus Safety Systems, Coimbatore, a partnership firm run by the brother-in-law of petitioner's brother. She has further stated that the issue relating to the custody and pendency of the petition under the Guardian and Wards Act before the Competent Forum has no relevance due to the criminal act of abduction of her daughter from the custody of petitioner and no circumstances warranting denial of custody of the minor girl child Kundavi to the petitioner is made out by the 3rd respondent. The 3rd respondent cannot take law into his own hands and take away the child without the consent of mother, when the child was under the care and protection of her mother for the last 8 months of her separation. Therefore, it is reiterated that the petition may be allowed by rendering justice.
4. Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioner would submit that mother is the natural guardian and the female child below the age of 5 years shall have to be in the custody of mother. As per the Hindu Minority and Guardianship Act, 1956 (in short the Act), it is mandated that a minor child under the age of 5 years shall ordinarily be with the mother. The welfare of the child during the tender age has to be protected in a right way, which can be done only by the mother. Moreover, the minor child, namely, Kundavi has been forcibly abducted from her mother. She has pointed out that there is already a matrimonial dispute pending between the petitioner and 3rd respondent before the Family Court and a guardian OP has also been filed by the 3rd respondent, seeking custody of the child, who has been taken away in the month of April, 2014 and the said act of 3rd respondent as well as separation of parents has affected the mind of the elder daughter / grown up child, which would definitely cause prejudice to her further growth. In support of her submission, she has stated that mother's protection for the minor child is indispensable and there is no other protection, which will be equal in measure and substance to that of the mother.
5. Learned Senior Counsel for the petitioner, in order to substantiate her stand, has relied on the following judgments: i) a decision of the Hon'ble Supreme Court in the case of Arathi Bandi vs. Bandi Jagadrakshaka Rao and others, in Criminal Appeal Nos.934 to 936 of 2013 etc.; 22. Again in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw & Anr.[7]., this Court reiterated the principle that it was the duty of Courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. In Re H.(Infants)[8]., the Court of Appeal in England had also observed that the sudden and unauthorized removal of children from one country to another is far too frequent nowadays. Therefore, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. These observations were also approved specifically by the Court in the case of Mrs. Elizabeth Dinshaw (supra). In the case of V. Ravichandran (supra), in Paragraph 29 and 30, this Court has concluded as follows:- 29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L (Minors), In re and the said view has been approved by this Court in Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants), In re has been approved by this Court in Elizabeth Dinshaw. ii) a decision of the Hon'ble Division Bench of High Court of Himachal Pradesh reported in (AIR) 1987 HP34in the case of State Kamla Devi vs. State of Himachal Pradesh and others; 25. The law, which generally lags behind social advances, has haltingly stepped in by enacting Section 6 of the Hindu Minority and Guardianship Act, 1956 and taken a small step in the direction of treating the mother as better suited for custody till the minor attains the age of 5. The relevant portion of Section 6 of the said Act reads as follows : ".The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl - the father, and after him, the mother: Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.". The ".tender years rule". has thus found statutory recognition and the legislative policy underlying thereto is based not only on the social philosophy but also in realities and points in the direction that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. Findings Against The Factual Backdrop :
26. In the present case, both the children have just attained the age of 5. The parties are Hindus and the ".tender years rule"., as statutorily recognised, is immediately attracted in their case and it cannot be ignored in judging their welfare. The respondent has no house of his own and stays with the children in the house of a friend. The minor children are thus deprived of the congenial and familiar surroundings of their own home and family. The respondent is employed and his hours of duty from 9 a.m. to 5 p.m. will keep him away from the minor children for the most part of the day for five days in a weak. There is nothing in the return to show as to in whose custody he leaves the minor children when he goes to work and what arrangement he has made or proposes to make in that regard. Assuming that such arrangement is or will be made, it would be an apologetic substitute for the mother's watchfulness and vigilance over the up-bringing and comfort of the minor offsprings. On the other hand, the petitioner is living with her parents in the house owned by them. She is in a position to devote her full time, care and attention to the minor children. Human nature as it is, her parents are also bound to assist her in looking after them with the affection naturally and normally shown to the grand children by the grand parents. There is not the slightest allegation as to the mental, moral or physical disqualification, if any, of the petitioner to superintend the general welfare of the children. There is also no allegation that she would be unable to support them, but even if there were any, we would not have hesitated to require the respondent to provide the financial support by making an order to that effect in the course of the present proceedings. Even ignoring the allegations made against the respondent and assuming that he is otherwise fit to be entrusted with the custody of the minor children the question of custody has still to be resolved in the context of all the relevant circumstances having a bearing on the minors' welfare including their ordinary comfort, contentment, health and upbringing. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he has no indefeasible right to the children's custody. The mother's protection for the two minor children is, in our opinion, indispensable. We cannot think of any other protection which will be equal in measure and substance to that of the mother.
27. Having given our anxious consideration to all the material circumstances of the case and having unhesitatingly reached the conclusion that the best interests of the minors requires that their custody be given to the petitioner, we have passed the order allowing the petition. We would like to make it clear, however, that the order is of a temporary nature and that it is open to review according to the circumstances that may arise in future and that, under such circumstances, that parties will be at liberty to apply to the court of competent jurisdiction for an appropriate relief. We have been informed by the learned counsel for the petitioner that both the children are being sent to a nursery school. The petitioner will ensure that they continue to attend the nursery school till they attain the age when they can be admitted to a regular school and that as and when they attain such age, they will be admitted to the regular school. We are also of the view that the best interests of the minor children require that they should not be altogether deprived of the paternal affection and company and, therefore, direct that the respondent will be provided access to the minor children by the petitioner at her parents house between 4 p.m. to 6 p.m. on every Saturday. The respondent will not, however, take the children out and will not by an act or omission on his part create any situation which has the direct or indirect effect of disturbing the sense of security and emotional balance of the children and the domestic harmony. These directions and observations are to be read as forming part of the order passed yesterday. iii) a decision of the Hon'ble Division Bench of this Court in the case of Tmt.R.Nirmala vs. Tmt.Y.Shanthi and others (H.C.P.No.501 of 2009) decided on 23.04.2009; 18. We make it clear that nothing stated in this order shall be taken as a binding precedent or a guiding factor by the Courts below while deciding either the civil suit in O.S.No.406 of 2003 on the file of the Additional Sub Court, Chingleput or the G.W.O.P.No.72 of 2007, pending on the file of the Principal District Court, Chingleput, wherein the claims of both parties have to be decided on merits and in accordance with law. The same principle will apply to the case in Cr.No.248/2009 of Pallikaranai Police Station, registered for the offence under Section 363 IPC.
19. Therefore, we direct the impleading petitioner/father of the child to hand over the custody of the minor child, Deepak Kumar, to the writ petitioner. However, it is open to him to work out his remedies before appropriate forum in accordance with law. Accordingly, the Habeas Corpus Petition is allowed. After dictating the above order in the open Court, the learned Senior Counsel appearing for the third respondent/father has requested the Court to allow the father of the minor child, Deepak Kumar, to have the custody of the minor child during weekends, for which course, the writ petitioner has also agreed. Accordingly, the 3rd respondent/father of the minor child is permitted to have the custody of the minor child Deepak Kumar on all Saturdays and Sundays and on the early hours of every succeeding Monday, he shall hand over the custody of the minor child Deepak Kumar to the writ petitioner. The third respondent/father of the child is at liberty to collect the minor child from the custody of the writ petitioner either on the night of every Friday or on the morning of every Saturday. At the cost of repetition, we make it clear that this arrangement is subject to the result and other orders to be passed in G.W.O.P.No.72 of 2007, pending on the file of the Principal District Court, Chengalpattu. 6. Per contra, Mr.N.Natarajan, learned Senior Counsel appearing for the 3rd respondent has contended that father of a child has equal importance and right like that of mother, meaning thereby father is also a natural guardian and the welfare and future of the child has to be mainly taken into consideration. Therefore, the word 'kidnap' cannot be used against the father, when the child was taken away by him / natural guardian, as the custody of child with him is a lawful one. Learned Senior Counsel has also contended that during infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child. Since the petitioner is under the clutches of one Madhusudhan, the atmosphere is not congenial to the growth of female child and the right of mother under Section 6(a) of the Act does not militate against the concept of welfare of the child. Mere tender age cannot be taken into account as a factor for deciding the custody of children as laid down by the Hon'ble Supreme Court. Learned Senior Counsel has further contended that though the 3rd respondent is willing to give quietus to the problem, there is no positive response from the petitioner and therefore, custody of daughters may be allowed to continue with the 3rd respondent / father.
7. In the course of his argument, learned Senior Counsel for the 3rd respondent / husband would rely on the following decision: i) a decision of the Hon'ble Supreme Court reported in (2000) 9 SCC745in the case of Sumedha Nagpal vs. State of Delhi and others; 1. The Petitioner is the mother of a child of tender age of about two years and claims his custody on the ground that she has been deprived of the same by deceitful means by Respondent No.2, the father, by driving her out of the house; that under proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 [for short 'the Act'), the custody of a minor child, who has not completed the age of five years should ordinarily be with the mother recognising the universally accepted notion of maternal instinct and selfless love, who needs her affection and for which there is no adequate substitute; that the paramount interest of the child lies in giving such custody to her instead of continuing such custody with the father. The case of Respondent No.2 on the other hand, is that the Petitioner abandoned the child and went to her parent's house and, therefore, the question of her claiming the custody does not arise at all. More so, when the child is in his custody to the exclusion of the Petitioner for nearly seven months, that is, from August 1,1999 and any disturbance by changing the custody now is not conducive to the welfare of the child. It is also contended on behalf of the Respondent No.2 that, however expansive may be the concept of life and liberty under Article 21 of the Constitution, it would not give rise to a right to issue of a writ of habeas corpus under Article 32 of the Constitution thereby treating the custody of the child with him as unlawful so as to give the custody of the child to the Petitioner. Whatever may be the rights arising under proviso to Section 6(a) of the Act, the same would not militate against the welfare of the minor child and particularly in the absence of any material to show that such welfare is in jeopardy, this Court ought not to exercise its power under Article 32 of the Constitution. Learned Counsel on either side have relied upon a large number of decisions to support their respective cases, but in the view we propose to take, it is unnecessary to examine any one of them.
2. Both parties do recognise that the question of custody of the child will have to be ultimately decided in proceedings arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act and while deciding such a question, welfare of the minor child is of primary consideration. Allegations and counter allegations have been made in this case by the Petitioner and Respondent No.2 against each other narrating circumstances as to how the estrangement took place and how each one of them is entitled to the custody of the child. Since these are disputed facts, unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as writ petition under Article 32 of the Constitution.
3. Without expressing any view on the pleadings raised in this case and making it clear that it is neither appropriate nor feasible in the present case to investigate the correctness of the same and decide one way or the other, we propose to relegate the parties to work out their respective rights in an appropriate forum like the Family Court or the District Court in a proceeding arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act or for matrimonial relief.
4. Even at this stage, Shri D.D. Thakur, the learned Counsel for the Petitioner, laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of the minor child to the mother. He submitted that though Section 6 of the Act recognises guardianship of the minor child with both the parents, exclusive right of the mother is recognised in respect of the custody of a minor child below five years. This legislative recognition of the maternal instinct should be honoured by us by treating the custody of the child with the father as illegal and the custody should be handed over to the mother pending the proceedings suggested by us earlier in the course of this order.
5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned Counsel for the Petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever, we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the Petitioner, we should not be understood as having held a petition would lie under Article 32 for grant of custody of minor child, we refrain from examining or deciding the same.
6. Before parting with the case, we cannot but express our deep anxiety over the matter. No decision by any court can restore the broken home or give a child the care and protection of both dutiful parents. No court welcomes such problems or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to normal concepts of family and marriage. The basic unit of society is the family and that marriage creates the most important relation in life, which influences morality and civilization of people, than any other institution. During infancy and impressionable age, the care and warmth of both the parents are I required for the welfare of the child and we do hope that in this case the Petitioner 1 and Respondent No.2, the parents, would realize what their responsibility should be and set right their broken home for the sake of their child.
7. On this note, we dismiss this writ petition, however, making it clear that it is open to the Petitioner or Respondent No.2 to file appropriate proceedings as stated earlier in the course of this order in the court of competent jurisdiction. ii) a decision of this Court reported in (1938) 47 LW568in the case of Kanneganti Chowdarayya and another (decided on 22.02.1938); 6. Therefore what we have proved in this case is that the child was in the keeping of his mother who was a lawful guardian within the meaning of Section 361, Indian Penal Code and that the child was taken or enticed away out of her keeping. Section 361 says that ".whoever takes or entices...is said to kidnap". and there can be no doubt that the word ".whoever". will include P.W. l's husband. But this is not quite sufficient. The exception to Section 361 states as follows: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
7. Now, if a person who in good faith believes himself to be entitled to the lawful custody of a child cannot commit an offence under Section 361, Indian Penal Code, it seems to follow a fortiori that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child cannot come within the scope of Section 361, Indian Penal Code. In this case it can be said on behalf of the first accused that he did not merely in good faith believe himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child, and that therefore his act in taking the child from the keeping of his mother could not amount to an offence of kidnapping from lawful guardianship.
8. I think this contention is correct. The learned Public Prosecutor has drawn my attention to the final words of the exception to Section 361, Indian Penal Code, ".Unless such act is committed for an immoral or unlawful purpose".. He points out that according to the finding of the learned Sessions Judge, the first accused had a strong motive to get the child away from his mother in order to stifle any suit for partition on behalf of the child. The learned Public Prosecutor suggests that this is an immoral or unlawful purpose, and invites my attention to the case reported in Mahendranath Chakrabarti v. Emperor (1934) I.L.R. 62 Cal.
629. That was a case in which the father of an illegitimate child was said to have taken the child away from its mother at the age of ten days, in order to hush up a scandal. It was held that in such circumstances the father of the illegitimate child might not be protected by the exception to Section 361, Indian Penal Code. There was however no decision in the case, the appeal being remanded for re-hearing, but I notice that in the judgment of Henderson, J., it is observed that it is for the prosecution to show that the act was committed for an immoral or unlawful purpose. By Section 105 of the Evidence Act it is of course the duty of the accused to show that his offence falls within any of the exceptions in the Indian Penal Code; but where it appears from the prosecution evidence itself that the act falls within the exception, the accused will clearly be relieved of that burden. In this case the exception itself states that Section 361 does not extend to the act of a person who in good faith believes himself to be entitled to the lawful custody of the child, unless such act is committed for an immoral or unlawful purpose; and that, as Henderson, J., observes, lays upon the prosecution the burden of proving that the act was committed for an immoral or unlawful purpose. In the present case it cannot be said that the prosecution has established that the act of the first accused was committed for an immoral or unlawful purpose. The charge against the first accused was that he had caused this child to be kidnapped in order that he might be murdered but the learned Sessions Judge has expressly found that that charge was not established. No other object was attributed to the first accused and it is not in my opinion justifiable to say that even though he has not been proved to have intended to murder the child, yet he must have had some other unlawful or immoral purpose.
9. In the absence of proof of the purpose for which the accused caused the child to be taken away from the keeping of his mother, all that we have proved is that the father of the child by deceitful means got the child from the keeping of his mother to his own. This in my judgment is not an offence under Section 361, Indian Penal Code, and I am fortified in this opinion by the reasoning of Rankin, C.J., in the case in Saharali Mohammad v. Kamizuddin Mahammad (1930) I.L.R. 58 Cal.
897. The learned Chief Justice quoted with approval the decision in Emperor v. Sital Prasad (1919) I.L.R. 42 All. 146 as authority for the proposition that: The explanation to Section 361 cannot be used* to mean that, as against a person, who, in fact, is the civil guardian of the minor, mere de facto guardianship can be set up so as to convict the real civil guardian of an offence under Section 361.
10. I therefore find that the appellant in C.A. No.456 of 1937 has been wrongly convicted of an offence under Section 363, Indian Penal Code. I set aside the conviction and acquit him. The conviction of the appellant in C.A. No.465 of 1937 also for abetment must be set aside for the same reason. He also is acquitted. The appellants have been released on bail and I direct that their bail bonds be cancelled. (iii) yet another decision of this Court reported in 1993(2) MWN (Cri) Mad 87 in the case of K.V.Bhaskaran vs. P.O.Shoba; Therefore above said observation makes it clear that the normal procedure in such cases is, the party aggrieved should only resort to the remedy under Guardians and Wards Act. The Division Bench, which decided the above said case also makes it clear that the only circumstance in which the Court can justifiably deviate from the above said normal procedure and entertain a habeas corpus petition is where the life, health and morale of the minor are in danger or where the child is likely to be removed from the jursidiction of the court clandestinely or within a short time or where the party having custody of the child is ex facie shown to be of depraved and immoral character and it will not be conducive to the interest of the minor to leave it in the custody of the person any longer. In the present case, there is no such averment at all in supporting affidavit. 8. Mr.N.R.Elango, learned Senior Counsel appearing for the 4th respondent would submit that the allegation levelled against 4th respondent to the effect that he helped the 3rd respondent / father to kidnap the child, is utter false and baseless and he was only concerned with the family of his brother and welfare and custody of children alone.
9. We have heard the learned Senior Counsel on either side and perused the material documents available on record.
10. A circumspection of the facts would reveal that the petitioner and the 3rd respondent got married on 01.11.2001 at Coimbatore and lived happily for many years, as a result of which, they were blessed with two daughters, namely, K.Mithra and K.Kundavi. The 1st daughter is a grown up girl studying at Kodaikanal and the 2nd daughter is aged about only 3 = years and initially, they were with their mother. A perusal of the records shows that the 3rd respondent / father has already filed G.W.O.P.No.525 of 2014 on 23.04.2014 before the Family Court, Coimbatore and the same is pending for consideration. While so, the petitioner claims that the 2nd daughter was forcibly kidnapped by the 3rd respondent / father and it is not in dispute that as of now, the 2nd daughter is with the father.
11. On direction by this Court, the minor child was produced before this Court and handed over to the mother in the open Court itself for sometime and subsequently, returned back to the 3rd respondent. It is seen that both the petitioner and the 3rd respondent are so cordial and affectionate towards the child. There is a saying that children will not remember you for the material things you provided, but for the feeling that cherished them; children begin by loving their parents, as they grow older, they judge them, and sometimes, they forgive them also.
12. Since learned Senior Counsel for the petitioner has heavily relied upon the provisions of Section 6(a) of the Act, it is appropriate for this Court to extract the same, which stipulates as under: 6. Natural guardians of a Hindu minor The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father; (c) in the case of a married girl husband; Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section - (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi) 13. A careful reading of the above provisions makes it clear that the child below 5 years of age shall be given custody to the mother alone, but at the same time, there is no contrary view that father is also the natural guardian. However, no decision by any Court can restore the broken home or give a child the care and protection of both dutiful parents. It is observed by this Court that since both the parties have already approached the competent Courts of jurisdiction for resolving their matrimonial dispute and also for consideration of custody of the child, we are now very much particular in giving paramount consideration to the welfare of the child, who is aged about only 3 = years. Budhulal vs. An Infant Child (AIR1971MP235 is a case, which recognises the paramountcy of the child's welfare in the matter of its custody.
14. In the case on hand, separating the child from the mother is a matter for consideration and similarly, the father is also much concerned about his daughter, as, according to him, his wife, the petitioner herein, is incapable of making the child grow in a good atmosphere. Though the petitioner / wife claims exclusive right and custody over the 2nd daughter Kundavi, while deciding a case under the proviso to Section 6(a) of the Act, what has to be borne in mind is the welfare of the minor child, which is of primary consideration and not to decide such a question merely based upon the rights of the parties.
15. It is the stand taken in the counter filed on 28.05.2014 by the 3rd respondent / husband that his wife, after leaving her matrimonial home, enrolled herself for a Psycho Drama Course at Woman's Christian College, keeping her little daughter in the care of her sister-in-law's family and she has also let down the child Kundavi in lurch in the care of distant relatives, which prompted the third respondent / husband to bring his daughter to his house at Coimbatore. To the above counter affidavit, the petitioner / wife has reciprocated by way of filing a reply affidavit dated 31.05.2014, stating that the petitioner, being a qualified Montessori teacher wanted to become a trained counsellor and enrolled into a Diploma in Expressive Art Therapy, which was a 30 day session in WCC College. For a brief period, the 2nd daughter was left in the custody of her sister-in-law and thereafter, was in her absolute care and custody in her parents' home in Sankarandamalayam Village, Dharapuram Taluk in Tiruppur District. In such view of the matter, the petitioner / wife cannot expect to have the permanent control and custody over the child Kundavi and at the same time, the third respondent / father also cannot insist upon the custody of the minor child below the age of 5 years, especially the female child with him forever. 16 . The law is well settled that in a case of custody of minor child, the following factors should be taken into account before parting with the case: i) The paramount consideration is the welfare of the child. Such consideration should never be static nor can it be squeezed in a strait jacket; ii) In consideration of the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor; iii) Status of the guardian, who claims custody, his / her financial position and capacity to upbring the child to a good position have to be looked into. The dictum laid down by the Hon'ble Supreme Court has underlined the above principles in various decisions and also in the judgments referred to by the learned counsel for the parties.
17. Be that as it may, when the competent Court has seized of the matter in G.W.O.P.No.525 of 2014, any decision or opinion by this Court in this petition, will have a bearing on the matter, especially, when there is a separate forum empowered to determine and decide the above factors in respect of custody of the child and therefore, the same cannot be decided by this Court in this Habeas Corpus Petition filed under the special jurisdiction of Article 226 of the Constitution of India. As such, concerned jurisdictional Court, after considering the facts and circumstances of the case, has to decide the matter in one way or the other, based on the oral and documentary evidence let in by the respective parties.
18. On seeing the great care and affection expressed by the parents, who were present at the time of hearing, explicitly towards the child in the Court, we are of the considered opinion that till the matter is decided by the jurisdictional Court in the pending petition for guardianship, both the petitioner and the 3rd respondent are entitled to have the custody of the minor child Kundavi.
19. In order to meet the ends of justice and taking into account the welfare of the child and her future, we feel it appropriate to facilitate some arrangements by way of interim measure, till an order is passed by the competent Court of jurisdiction. Accordingly, we are constrained to pass the following order: The custody of the child, viz., Kundavi, shall be with the petitioner / mother for four days a week, i.e. from Monday to Thursday and thereafter, the child shall be given to the custody of 3rd respondent / father to remain stayed for the balance three days of the week, namely, Friday to Sunday till a decision is arrived at by the concerned jurisdictional Court.
20. For the sake of repetition, it is made clear that any finding or opinion recorded herein above shall have no bearing on the concerned jurisdictional Court, while deciding the matter pending before it and it is for the said Court to go into the merits and demerits of the case independently, in accordance with law after analyzing the oral and documentary evidence being let in by the parties. V.Dhanapalan, J.
and G.Chockalingam, J.
ar 21. With the above observations, the Habeas Corpus Petition stands disposed of. [V.D.P.,J.]. [G.C.,J.]. 27.06.2014 Index: Yes Internet: Yes ar Note: Registry to issue order copy on or before 30.06.2014 To 1. The Superintendent of Police, Tirupur (Rural), Tirupur District.
2. The Inspector of Police, Uthiyur Police Station, Tirupur District.
3. The Public Prosecutor High Court, Madras Pre-Delivery Order in Habeas Corpus Petition No.1355 of 2014