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Writ of Habeas Corpus not valid in Custody case if child is happy with Father.

Madras High Court

Writ Petn. No. 17819 of 1991

Vaidehi
vs
I. Gopinath on 3 February, 1992

Equivalent citations: AIR 1993 Mad 315, I (1994) DMC 379

Bench: K Natarajan, Maruthamuthu
ORDER K. M. Natarajan, J.

1. This writ petition is filed by the mother of the detenus under Article 226 of the Constitution of India, for the issuance of a Writ of Habeas Corpus directing the respondent-husband to produce the minor children, Madhulika aged 9 years and Anirudh aged 6 years, before this Court and set them at liberty by handing them over to the petitioner.

2. The case of the petitioner as seen from the affidavit filed in support of the petition is briefly as follows: The petitioner and her husband, the respondent, were married on 18th January, 1981 at Madras. Out of the lawfuld wedlock, she has given birth to two children, namely, daughter Madhulika aged 9 years and son Anirudh aged 6 years. She was residing with the respondent and the two children in a flat in Gandhi Nagar, Madras. Some time back the respondent and she had marital problems and their relationship deteriorated and finally she was driven out of the flat by the respondent on the night of October 25, 1991. Ever since then she has been residing with her mother at T. Nagar. Better sense prevailed on the respondent on the next day and after discussion it was agreed that their marriage had come to an end. Further, the petitioner should continue to reside with her mother and come to the flat at Gandhi Nagar daily to see the welfare of the children. Accordingly she used to come daily to the flat at Gandhi Nagar and attend the children and return to her mother’s house at T. Nagar. On Saturday (30th November, 1991) the respondent, his brother I. Srinivas, Advocate Mahanti from Delhi, P.M.M. Rao (the brother-in-law of the respondent) and some others barged into the petitioner’s mother’s house at T. Nagar, abused her and made all kinds of wild and baseless allegations against her, They also threatened the petitioner and her mother with physical violence. Ever since then the respondent denied access of the petitioner to her children. Since the children were not available in the flat at Gandhi Nagar, she made enquiries about them and later on 11-12-1991 she made enquiries at the St. Michael’s Academy, and she was shocked to learn that the children had been withdrawn from the school and transfer certificate was obtained by the respondent. Thereupon, she issued a notice through lawyer on 11-12-1991 calling upon the respondent to hand over the children to her and also a telegram directly to the respondent to his office address. It is further stated that since she has no information about the whereabouts of the children, she is very much concerned about the safety of the children as the children were particularly attached to her. The respondent is given to fits of violent temper and he is bound to beat them if they should cry or ask for the petitioner. On enquiry, the petitioner learned from the neighbours that they heard the cry of the children and the shouting of the respondent at them. Hence, it is not in the welfare of the children to be deprived of their mother’s care and affection. Such an act of deprivation by the respondent is illegal besides being harsh and cruel not only to the petitioner but also to the children themselves.

Further, the petitioner suspects that the respondent has taken the children away from Madras and put them in the care of strangers. They must be undergoing trauma is a result of the respondent’s cruel, thoughtless and selfish behaviour. The respondent is not at all interested in the welfare of the children. Above all, withdrawal of the children from the school in the middle of the academic year is detrimental to their studies. The continued custody of the children with the respondent is illegal and definitely not in the interest of the minor children. Hence this writ petition.

3. In the counter-affidavit filed by the respondent, besides denying the various allegations, he inter alia contends as follows:– He admitted the marriage and the birth of the children. According to him, their married life was a happy one and they had two children, namely, daughter by name Madhu-lika aged 9 years having been born on 17-9-1982 and son by name Anirudh aged about 6 years having been born on 2-1-1986. He is a Senior Executive in India Cements drawing a salary of Rs.5,000/- per month with company car, quarters and other perks. They were living in Hyderabad, Delhi and Madras. It is further stated that the marital problem referred to by the petitioner started when she was enticed by one A. V. Amarnath residing at door No. 100, St. Mary’s Road, Madras, whiie his wife and daughter are residing at Bangalore. She started ill-treating the children as if they were burden to her and she never cared for the respondent, their children or in house keeping. She used to go out of the house often and return very late in the nights without informing the respondent and against his wishes. This development started in May, 1991. She used to meet the paramour Amarnath at the meditation and prayer hall of “Sundaram”, Greenways Road, Madras, belonging to the Sathya Sai Baba Trust, under the guise of attending Sai Bajans every Thursday and Sunday. She developed illicit intimacy with the said Amarnath. The above fact was known to the respondent on a perusal of the letter dated 11-8-1991 written by the petitioner to Amarnath and his letter dated 17-11-1991 to the petitioner and the conversation over phone on various dates which were recorded by the respondent in audio-cassettes. It is only the infatuation of the petitioner to the said villain Amarnath has ruined the family life of the respondent with “the petitioner, the future of the innocent children and the reputation of the family. He emphatically denied that the petitioner was driven out of the marital home by him on 25-10-1991 or on any other date. On the other hand, on 25-10-1991 the petitioner had complained of severe stomach pain and she was taken to the Tamil Nadu Hospital, Adyar for treatment late that night. The respondent informed the petitioner’s mother of the adulterous act of the petitioner with Amarnath and the breaking down of their marriage. The petitioner’s mother came to the house on 27-10-1991 and even stayed overnight to see that good sense prevails over the petitioner and the matter could be settled without washing dirty linen in public, but in vain. The next day (28-10-1991) the petitioner on having realised that her adulterous life is being exposed, reacted in a most unreasonable and dangerous manner and went to the extent of stating that she would do as she wishes, and after confessing her illicit relationship with Amarnath, abandoned him on the night of 28-10-1991 without caring for the future and welfare of the children. Her whereabouts were not known for 3 days. Only on 1-11-1991 she came to her mother’s house. She came to his house on 10-11-1991 and took away her belongings including the gas stove, and afterwards, she used to come of and on when the respondent was not in the house. Even on 22-11-1991 she was speaking on telephone in the residence of the respondent, to her adulterer Amarnath and it was recorded by him in audio casette. On 29-11-1991 the petitioner, her mother and cousin Malini came to the flat of the respondent. The petitioner had gone even to the extent of giving threats that she would kill the children, the respondent and herself. It is only at the instance of the petitioner and her family members, the meeting on 30-11-1991 took place in the petitioner’s mother’s residence at T. Nagar and the allegations contra are false.

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4. It is further stated that on and from 29-11-1991 the children were not in the flat at Gandhi Nagar and they were flown to Hyderabad along with the sister of the respondent to keep them under his care and protection and that of his parents and other family members who were living with him as members of joint family. In order to give the children good education without break, he got a transfer to Hyderabad on 2-12-1991, and on 3-12-1991 he took the Transfer Certificates of his children from St. Michael’s Academy, Madras. He admitted Madhulika on 6-12-1991 in St. Ann’s School. He admitted Anirudh on 5-12-1991 in Shisya School in Hyderabad. They are good and much sought after institutions. Normally admission is very difficult in the said institutions. He spent more than Rs. 5,000/- for the same. To the letter issued by the petitioner, he sent a reply dated 17-12-1991. He received a rejoinder dated 25-12-1991 to which also he sent a reply on 31-12-1991. He also collected the private notice dated 19-12-1991 sent by the petitioner’s counsel, from the Mount Road Post Office on 21-12-1991. It is stated that the petitioner is a depraved woman with illicit connections even while he stayed in her matrimonial home. She abandoned and left the matrimonial home voluntarily in order to continue her adulterous connection. She openly said that she has no regrets for having such adulterous connection. She was least interested in the children. Due to the paranoid and dangerous manner in which she reacted on being confronted with the truth in front of the family members of both sides, the respondent has no option but to send his children away from her reach and evil influence for their mental as well as physical safety and well being. He also gave a complaint to the officer-in-charge of the police station at Adyar on 1-12-1991 apprehending danger to the children and himself at the hands of the petitioner. According to him, the children have been admitted in most prestigeous schools at Hyderabad and they are having most congenial company both at home with his elder brother’s children, a boy and a girl of their same age group, and at school where his sister’s daughter is also studying in the same class with his daughter. His son is also having the company of his sister’s son in the school. The children have not only settled very well in their new environment under his care and the care of his parents and other family members but are also gradually recovering from the severe mental trauma, stress and shock inflicted upon them by the petitioner’s indifferent and immoral conduct. They will not have any care or affection from the petitioner who is infatuated in her love to her adulterer Amarnath and who has left the matrimonial home voluntarily to continue her adulterous connections. It is further stated that he is the natural guardian entitled to custody of the children under Section 6 of the Hindu Minority and Guardianship Act, 1956. It is further stated that only an Original Petition will lie, and a writ petition for Habeas Corpus for the relief prayed for would not like and the same has to be dismissed in limine. Finally it is stated that he has filed O.P. No. 1161 of 1991 on the file of the Family Court, Madras, for divorce to dissolve the marriage of the petitioner and the respondent on the ground of her immoral character, with a prayer to continue to have the custody of the children, under Section 26 of the Hindu Marriage Act, 1955 and that it is only the Family Court which has got exclusive jurisdiction to decide the custody of the children. He has also stated that this Court has no territorial jurisdiction to entertain this petition and hence he prayed for dismissal of the writ petition.

5. Before ever deciding the question as to whether the petitioner is entitled to custody of the children, we have to see under what circumstances, this Court can exercise the writ jurisdiction in the matter of custody of the children. The learned counsel for the petitioner relied on the following decisions, namely, (1) Gohar Begum v. Suggi, ; (2) Veena Kapoor v. Varinder Kumar, ; (3) Elizabeth Dinshaw v. Arvand M. Dinshaw, ; (4) Surinder Kaur v. Harbax Singh, ; (5) G. Damodaran v. Smt. Ambikeswari, 1984 TLNJ 151 and (6) K.M.R. Sultan Akbarsha v. Sultanasofia Begum, 1982 Cri LJ 1617 : 1982 TLNJ 24. Per contra, the learned counsel for the respondent drew our attention to the following decisions, namely, (1) Sampath v. Govindammal, ; (2) Rajeswari v. C. M. Bagavathimuthu, Pilliai, 1979 TLNJ 417; (3) K.M.R. Sultan Akbarsha v. Sultanasofia Begum, 1982 Cri LJ 1617 : 1982 TLNJ 24 and (4) Mrs. Premila Devi v. R. Jayachandran, (1981) 1 Mad LJ 497.

6. In G. Damodaran v. Smt. Ambikeswari, 1984 TLNJ 151, which was rendered by Natarajan, J. (as he then was) and Venkataswami, J., it was pointed out that in the earlier Bench decision of this Court in K.M.R. Sultan Akbarsha v. Sultanasofia Begum, 1982 Cri LJ 1617 : 1982 TLNJ 24, to which Natarajan, J. (as he then was) was also a party, it was observed as follows (at p. 1623 of Cri LJ):

“The only circumstances in which we can justifiably deviate from this procedure is where the life, health and morale of the minor are in danger or where the child is likely to be removed from the jurisdiction 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.”

After distinguishing the decision in Gohar Begum v. Sugri, , it was ultimately held in G. Damodaran case (1984 TLNJ 151):

“Therefore the proper course for the petitioner is to take out an application before the proper Court for securing the custody of the -children. We are not expressing any opinion in this petition about the charges levelled against the respondent by the petitioner and/or the counter charges levelled by the respondent against the petitioner.”

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Ultimately, the writ petition was dismissed in that case. Gohar Begum v. Suggi, is the first decision relied on by the learned counsel for the petitioner, where the Supreme Court held that on the basis of the undisputed facts of the case, the custody of a child should have been given to its mother. That was a peculiar case where the custody of the child was sought to be retained by a third person whom the Court found ‘had no legal right whatsoever to the custody of the child’ but nevertheless such a party objected to the custody of the child being handed over to the mother on the ground that the mother was leading a questionable life. It was in that background the Supreme Court held that the child which was an illegitimate one must necessarily be handed over to the mother and the objector who had no right in law to have the custody of the child was not entitled to refute the mother’s claim for getting the custody of the child. In Veena Kapoor v. Varinder Kumar, , another case which was relied on by the learned counsel for the petitioner, the mother was the petitioner and she sought the custody of a child aged about 1-1/2 years. The father who was the respondent opposed the application. A learned Judge of the Punjab and Haryana High Court dismissed the application filed by the mother on the technical ground that the mother should exercise her right under the Guardians and Wards Act to secure the custody of the child. The dismissal of the petition was without reference to the tender age of the child. It was in such circumstances the Supreme Court held that the order was unsustainable because it failed to take into consideration the welfare of the minor. In Mrs. Premila Devi v. R. Jayachandran, (1981) 1 Mad LJ 497 a Bench of this Court held:

“The High Court’s jurisdiction to grant relief under Article 226 of the Constitution can be invoked only in cases where the other remedies available will not be as effective and efficacious as the one sought to be invoked under Article 226. So far as the present case is concerned, as per taw, the father is natural guardian. Technically the custody has to be with the mother if the child is below the age of five. It is only a preferential claim as between the father and mother as regards the custody of the child. There is no extraordinary circumstance in this case to relief under Article 226 of the Constitution of India. The relative merits of the claim for custody have to be discussed and decided after hearing the proper evidence that will be let in by the respective parties. This can be effective done before the civil Court constituted under the Hindu Minority and Guardianship Act and also under the Guardians and Wards Act. The Court can give an effective and efficacious relief after assessing the evidence that may be let in by the respective parties regarding their preferential claims over the child concerned. Inasmuch as there is an effective alternative remedy available for the petitioner to agitate her claim, the writ petition filed under Art. 226 of the Constitution is misconceived.”

In Sampath v. Govindammal, , a Bench of this Court while considering the issue of writ of habeas corpus under S. 491, Cr.P.C. held as follows (at p. 101 of AIR) :

“An application under Section 491 being in the nature of a summary proceeding, it will not be possible for instance to go into the question of the right of guardianship of the applicant in cases where it may be disputed. Questions such as whether it would be for the welfare of the minor to restore the custody of the minor to the guardian and the taking into account the minor’s wishes, if she is of sufficient age and is able to give an intelligent preference, are matters which should legitimately be considered in proceedings under the Guardians and Wards Act and they could not be gone into thoroughly in a summary proceeding. Courts should be reluctant to pass orders in applications under S. 491, when such applications are taken by persons, who claim to be the natural guardians and require their wards to be restored to their custody. Unless there is an imminent danger to the health or safety of the minor or to his morals, when an interim order of production would become necessary, parties should be directed to proceed by way of an application under the provisions of the Guardians and Wards Act. The more appropriate, effective and legitimate course to be adopted by an aggrieved person, who seeks to get the custody of his ward, is under the Guardians and Wards Act.”

In Rajeswariv. C. M. Bagavathimuthu Pillai, 1979 TLNJ 417, a Bench of this Court held as follows:

“It is the Court exercising jurisdiction under the Guardians and Wards Act which could hold a thorough enquiry as to the fitness of the contending parties to have the custody of the minors. Such an enquiry cannot be had in a summary proceedings such as the one now before us. Moreover, as we have already pointed out, unless there is an immediate danger to the health or safety of the minor or their morals, it would be more appropriate for the matter to be dealt with under the Guardians and Wards Act by the Court exercising jurisdiction under the Act and not by this Court in a summary proceedings such as this. We do not, therefore, think it expedient, in the circumstances of the case, when there is a proceeding under the Guardians and Wards Act pending before the learned District Judge, Chingleput, to issue a writ of habeas corpus.”

7. The scope of invoking the writ jurisdiction under Art. 226 of the Constitution for issue of habeas corpus against a natural guardian has been clearly laid down in the above decisions and it is clear that if the life, health and morale of the minors are in danger or where the party having custody of the child is ex facie shown to be depraved and of immoral character and it will not be conducive to the interest of the minors to leave them in the custody of the person any longer, then only it can be invoked. In the instant case, admittedly, the respondent is the natural guardian. As per S. 6 of the Hindu Minority and Guardianship Act, he is the natural guardian of the minor children. It is the case of both the parties that the relationship of marriage broke down, and according to the petitioner, it was on account of some marital problems; but, according to the respondent, it was on account of adultery on the part of the petitioner and he has filed a petition for divorce before the Family Court. The learned counsel for the respondent submitted that under S. 26 of the Hindu Marriage Act, the Family Court has got every jurisdiction to pass interim orders regarding custody of the children. According to the petitioner, the children were taken from Madras and they were admitted in school at Hyderabad and they were beaten and forcibly taken while they were weeping and that they cannot sleep even one day without the petitioner. But, on the other hand, the case of the respondent is that he has been transferred to Hyderabad and he is having the custody of the two children, along with his parents, his elder brother, his wife and children, who are all living as joint family members. He further submitted that the children are admitted in best schools at Hyderabad and that they are all happy.

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8. Though originally the respondent insisted that arguments have to be heard on the question of maintainability of the petition and the production of the children need not be insisted, subsequently after hearing the arguments, the respondent agreed to produce the children in view of the direction given by this court as it was represented on behalf of the petitioner that they are satisfied if the children are produced in court and they are examined and if they are happy and if there is no apprehension of danger to their health and life. Accordingly, the children were produced and they were examined in the chamber by us as per the desire of both parties who were staying outside the chamber. Minor Madhulika when questioned would state that she can speak in English, that she is aged about 9 years and that she is studying IV Standard in St. Ann’s School, Hyderabad. She would further state that she is staying with her father’s mother and father for the last one month and previously she was in Madras with her parents and was studying in St. Michael School, Madras, in IV Standard. Some relevant questions and answers may be reproduced here:

Q. Were you beaten and taken to Hyderabad or on your own volition you went to Hyderabad?

A. I myself wanted to go to Hyderabad. I was not threatened by my father or anybody else.

Q. It is stated by your mother that you were beaten and taken to Hyderabad?

A. No. Q. Can you stay with your mother at Madras?

A. No. Q. Can you give any reason for going to Hyderabad?

A. My father will look after me. I do not want my mother.

Q. Your mother says that you cannot stay for a single night without your mother?

A. No. I do not want my mother.

Q. Do you want to go to Madras or Hyderabad?

A. I want to go to Hyderabad.

Q. Have you been tutored to say so?

A. No, I am saying on my own volition. I was not asked by my father to say so.

Q. Why don’t you want to go back to Madras?

A. I have more cousins and friends at Hyderabad. I like Hyderabad. I do not want to go back to Madras.

Q. Your mother wants to take you back?

A. I do not want to go with her. I want to be with my father.

Anirudh, the son of the petitioner would state that he is aged 6, that he is now studying in Sishaya School and that he is now staying at Hyderabad with his father, grandfather grandmother and others. He is studying I Standard. The relevant questions and answers are:

Q. Who are looking after you?

A. My father.

Q. Your mother did not take care of you at Madras?

A. No. Q. Why don’t you want to live with your mother?

A. My mother is bad. My mother was not kind to me. She is not caring for me.

Q. Your mother wants to take you with her?

A. I do not want to go with my mother.

Q. Your mother wants you to stay in Madras?

A. I do not want to stay at Madras. I want to study in Hyderabad.

Q. Why do you want to go to Hyderabad. A. In Hyderabad, I have more friends.

Q. Why don’t you want to go with your mother?

A. She is bad. I do not like her.

Q. Have you seen your mother now.

A. Yes.

Q. Did you talk with her.

A. I do not want to talk with her.

9. From the above questions and answers, it is clear that the children are very particular to stay with their father and they do not want to go with their mother. They appear to be intelligent and in any, event there is absolutely nothing to show that their morale of health is affected or their lives are in Imminent danger so as to invoke the writ jurisdiction of this court. The decisions relied on by the learned counsel for the petitioner are not at ail helpful to the case of the petitioner. The decision reported in Elizabeth Dinshaw v. Arvand M. Dinshaw, was rendered on the facts and circumstances of that case and the custody of the minor was granted to the mother. It was held in that case (Para 8):

“Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.”

That was a case where the mother filed the writ petition for custody of the minor. It was found that the monther was full of genuine love and affection for the child and she could be safely trusted to look after the minor, educate him and attend in every possible way to his proper upbringing. The father, who is guilty of the act of abduction of the minor, and brought the child to India, cannot claim any advantage and he cannot take advantage of his wrong doing. That decision, as already stated, is not at all helpful in any way to the case on hand.

10. However, we wish to observe that we are not expressing in this petition any opinion about the charges levelled against the petitioner by the respondent and the counter charges levelled by the petitioner against the respondent. The question as to who is entitled to custody of the children is a matter to be decided by a competent civil court after giving opportunity to both parties to adduce necessary evidence and after arriving at a finding with regard to the paramount welfare and interest of the children. The proper course for the petitioner is to take out an application before proper court for securing the custody of the children. We are not deciding the issue as to who is legally entitled to custody of the children in this petition. We only came to the conclusion that the petitioner is not entitled for writ of Habeas Corpus and it is enough if the parties are directed to agitate their rights in proper civil court. It is only in that view we dispose of the writ petition. With the above observation, the writ petition fails and stands dismissed.

11. Petition dismissed.

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