Sabiha Begum vs The Commissioner Of Police on 24 August, 2018

[Cites 12, Cited by 1]

Madras High Court

Sabiha Begum vs The Commissioner Of Police on 24 August, 2018

The petitioner is the biological mother of the minor children, namely Z.Safaa Tamanna - daughter, aged about 9 years and Z.Fardeen Ahmed - son aged about 5 years and she came forward to file this Habeas Corpus Petition alleging that the fourth respondent, who is her husband, had barged into her parental home and took the detenus and her children forcibly without consent and permission and in the process, had also broke open the cupboard and stolen 80 grams of gold gifted to her by her parents, original property documents belonging to her situated in Manavur and also the car which was jointly purchased by him and the fourth respondent.

2. In the affidavit filed in support of the said writ petition, the petitioner would aver among other things that she is a Commerce Graduate and she got married to the fourth respondent on 13.05.2007 according to Islamic Sunni Rites and Customs and it was a love marriage and out of wedlock, two children/detenus were born. The petitioner would further aver http://www.judis.nic.in 3 that initially her matrimonial home was at Muthialpet, Chennai-600 001 and at the request of the fourth respondent, she shifted her residence from her in-laws house at Muthiyalpet and thereafter, the fourth respondent requested her to reside along with her parents house at Pallavaram, however, he did not honour it and used to visit her occasionally to the parental house and he did not financially and morally support her. The daughter of the petitioner was initially admitted in a Kindergarden at Holy Queen School, Nagalkeni, Chrompet and subsequently admitted at Vels Vidyashram Senior Secondary School and they were given education as well as extra curricular activities.

3. It is further averred by the petitioner that the fourth respondent ever since January 2018, started picking up quarrels and also threatened her to apply for divorce as he had plans to remarry and however, she kept quiet on account of the family and children interest. The fourth respondent also spread rumours as if the petitioner is leading an adulterous life. It is also averred by the petitioner that on 22.03.2018, the fourth respondent barged into her house and took the children illegally and in the process, stolen jewels, property documents and articles. The petitioner immediately lodged an on-line complaint and thereafter, decided to lodge a full fledge compliant and approached the Pallavaram Police Station, which refused to receive the http://www.judis.nic.in complaint and directed her to approach the All Women Police Station, 4 Tambaram, which in-turn directed her to approach the Muthialpet Police Station and accordingly, she lodged a complaint.

4. The petitioner also became aware of the fact that the fourth respondent has given a complaint on 31.03.2018 and an F.I.R in Crime No.206 of 2018 came to be registered by Pallavaram Police Station against her and one Naveen for the alleged commission of offences under Sections 294(b), 506(i) and 120-B I.P.C. In the said complaint, the fourth respondent has alleged as if the petitioner is having illicit intimacy with one P.S.S.Naveen and it is nothing but a false case and by adopting unfair methods, he managed to get the case registered against her. The petitioner, apprehending arrest in the said case, moved the District and Sessions Court, Chengalpattu and she was also granted anticipatory bail. On 21.06.2018, the petitioner has also submitted a report to the Commissioner of Police, Vepery, Chennai as to the misdeeds of the fourth respondent and it was assigned with C.S.R.No.393 of 2018 on 22.06.2018. It is the specific case of the petitioner that as per Islamic Law, boy aged less than 7 years and girl child until she attains puberty shall be with the custody of the mother and since the custody of her children had been taken illegally by the fourth respondent and prays for appropriate orders to restore their custody to her. http://www.judis.nic.in 5

5. The Habeas Corpus Petition was entertained on 03.07.2018 and on subsequent hearing dates, the children were asked to be produced and on one such occasion on 25.10.2018, the earlier Division Bench, after interacting with the parties, found that it is impossible to re-conciliate and therefore, directed the listing of the matter before the Court on 26.10.2018. The earlier Division Bench, vide order dated 24.08.2018, has referred the matter for mediation before the Tamil Nadu Mediation and Conciliation Center, High Court, Madras and it had sent a report stating that the parties were not willing to participate in the mediation.

6. The fourth respondent has filed a counter affidavit denying the allegations and would state that the petitioner had developed illicit intimacy with one P.S.S.Naveen and gone to the extent of conspiring with him to do away with his life, so that they can live happily and also stated instances as to the said illicit intimacy. It is further averred by the fourth respondent that from March, 2018, he is taking care of two children and in the light of the conduct of the petitioner, she did not deserve to have the custody of the children and prays for dismissal of this Habeas Corpus Petition. The fourth respondent, in support of the counter affidavit, has also filed typed set of documents dated 19.07.2018 as to the alleged illicit intimacy between the http://www.judis.nic.in petitioner and one P.S.S.Naveen.

7. Mr.G.Rajaganapathy, learned counsel appearing for the petitioner has drawn the attention of this Court to the materials placed as well as following judgments,

(i) S.Rehan Fatima v. Syhed Badinudin Pariviz – Judgment of the Andhra Pradesh High Court dated 26.06.2018

(ii) Zahirul Hassan v. State of Uttar Pradesh [1988 CriLJ 230- Allahabad High Court]

(iii) Order of the Bombay High Court dated 20.06.2016 made in Family Court Appeal No.20 of 2015 [Imran Khan v. Sobiya Tabassum]

(iv) Prabhati Mitra v. D.K.Mitra [25 (1984) DLT 186 – Delhi High Court]

(v) Gohar Begam v. Suggi Alias Nazma Begam and Others [AIR 1960 SC 93]

(vi) Order of this Court dated 21.03.2011 made in A.No.248 of 2011 in O.P.No.12 of 2011 [Mr.S.Anand @ Akash v. Ms.Vanitha Vijaya Kumar and another] and would submit that as per Islamic Laws, male child below 7 years and female child until attains puberty shall be in the custody of the mother and the fourth respondent, by throwing all norms to wind, especially Personal http://www.judis.nic.in Laws, barged into her parental home on 22.03.2018 and forcibly taken the 7 children and in order to get over the said illegality, started circulating malicious statements as if she is having illicit intimacy with one P.S.S.Naveen and on account of the said conduct, she did not deserves to be in care and custody of the children/detenus.

8. The learned counsel appearing for the petitioner would further submit that paramount consideration is the welfare of the children and in the light of the fact that both the detenus yet to attain majority and they also require motherly love and care and in the light of the settled position of law that this Court, in case of child custody, exercises parens patriae jurisdiction, this Habeas Corpus Petition is maintainable. The learned counsel appearing for the petitioner on factual aspects would submit that the fourth respondent is making attempts to file divorce petition and also sent a notice and further pointed out that the mother of the fourth respondent is no more and there is no one to take care of the children and therefore, prays for urgent orders restoring the custody of the children.

9. Per contra, Mr.D.Saikumaran, learned counsel appearing for the fourth respondent has drawn the attention of this Court to the typed set of documents filed in support of the counter affidavit which contains mobile http://www.judis.nic.in phone recordings, text messages and e-mail conversations said to have 8 happened between the petitioner and one P.S.S.Naveen and would submit that the petitioner, by conspiring with her paramour, has gone to the extent of finishing of his life and fearing that his children may not be taken proper care of, took the custody of the children. It is the further submission of the learned counsel appearing for the fourth respondent that since the fourth respondent is the biological father, it cannot be said that the custody of the detenus is illegal or unlawful and would further urge that since there is an effective, efficacious and alternative remedy available in the form of Guardianship Original Petition, it is always open to the petitioner to invoke the jurisdiction of the competent civil forum and workout her remedy including interim custody of the children and prays for dismissal of this Habeas Corpus Petition. The learned counsel appearing for the fourth respondent, in support of his submissions, placed reliance upon the decision in Prateek Gupta v. Shilpi Gupta and Others [(2018) 2 SCC 309].

10. Mr.C.Iyyapparaj, learned Additional Public Prosecutor appearing for the respondents 1 to 3 would submit that the complaint given by the petitioner was assigned with CSR No.20/CSR/W12AWPS/18 dated 28.04.2018 by the All Women Police Station, Harbour Range and the fourth respondent was enquired into and the petitioner has also given a written http://www.judis.nic.in communication on 29.04.2018 to work out her remedy before the competent 9 Court. It is also pointed out by the learned Additional Public Prosecutor that the petitioner had also approached the Court of Judicial Magistrate, Tambaram by filing Crl.M.P.No.4027 of 2018 for registration of her complaint and it was disposed of vide order dated 18.07.2018 by directing the Station House Office to follow the dictum laid down by the Hon'ble Apex Court in Lalita Kumar v. State of U.P. [(2014) 2 SCC 1] and accordingly, the Inspector of Police, W-35, All Women Police Station, Tambaram, Chennai-600 045 had conducted an enquiry and submitted a report stating that there is no authenticity in the allegations levelled against the fourth respondent and closed the CSR.No.393 of 2018 and submitted a report to the said Court on 27.11.2018.

11. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the entire materials placed before it.

12. A perusal and consideration of the decisions cited by the learned counsel appearing for the petitioner would disclose that most of the decisions had come up by way of appeal or revision after full fledge trial in the proceedings concerned.

http://www.judis.nic.in 10

13. As per Section 352 of the Mohammedan Law applicable to Hanafi Sect, the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty and the right continues though is divorced by the father of the child, unless she marries a second husband in which case custody belongs to the father. The learned counsel appearing for the petitioner, by placing upon the settled legal provision, made a forceful submission that since the custody of the detenus was taken illegally by the fourth respondent on 22.03.2018 and continues to have their custody for nearly one year, in all probability, they may lose the motherly love and affection and since the Guardianship Original Petition takes long process and by that time it ends, the detenus may even forget their mother/petitioner and therefore, this a fit and proper case wherein interim custody of the children is to be handed over to the petitioner forthwith.

14. The decisions relied on by the learned counsel appearing for the petitioner also lay down the proposition that “wishes of the child of any age may be considered under all the circumstance, but the weight given to those wishes must be dominated by what is best for the welfare of the children and it depends upon the age of the children and the attendant http://www.judis.nic.in circumstances”.

15. Similar view has been taken by the Hon'ble Supreme Court in the decision in Prateek Gupta v. Shilpi Gupta and Others [(2018) 2 SCC 309], which observed that irrespective of summary or elaborate enquiry to be undertaken by High Court, welfare of child must prevail as foremost overriding consideration. In the very same decision in paragraph No.38, it was observed that the appellant, namely Prateek Gupta, being the biological father of Aadvik, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Courts jurisdiction to issue a writ in the nature of habeas corpus.

16. It is also to be pointed out at this juncture that a complaint was lodged by the fourth respondent alleging that the petitioner had developed illicit intimacy with one P.S.S.Naveen and conspiring with him and tried to do away with his life, based on which a case was registered by Pallavaram Police Station in Crime No.206 of 2018 for the commission of offences under Sections 294(b), 506(i) and 120-B IPC and has culminated into a positive final report and the same has been filed before the Court of Judicial Magistrate, Tambaram and it is yet to be taken on file. http://www.judis.nic.in 12

17. In the considered opinion of the Court, the grounds raised and the points urged by the respective learned counsel appearing for the parties revolve around adjudication of disputed question of fact and it require necessary averments supported by oral and documentary evidence and this Court, in exercise of it's jurisdiction under Article 226 of the Constitution of India, may not able to do that exercise.

18. This Court also makes it very clear that it did not go into the merits or demerits of the allegations levelled by the petitioner against the fourth respondent or by the fourth respondent against the petitioner for the reason that it may touch upon the merits of the investigation/enquiry done by the jurisdictional police.

19. It is not in dispute that the petitioner is the biological mother of the detenus and being a parent, she is expected to have anxiety to have the custody of her children. It is also brought to the notice of this Court that when this Habeas Corpus Petition was listed before the earlier Division Bench [Hon'ble Mr.Justice C.T.Selvam, as the Hon'ble Judge then was and Hon'ble Mr.Justice M.Nirmal Kumar], the children were produced before them by the fourth respondent and they were enquired into and they http://www.judis.nic.in expressed their disinclination to go with the petitioner. However, it is to be 13 pointed out that it may not be the criteria to decide the issue relating to the custody of the children, as it can be done only through appropriate proceedings as to the Guardianship of the children before the competent civil forum.

20. Since the detenus are minors and taking into consideration of the fact that their parentage through the petitioner is not disputed by the fourth respondent, the petitioner is to be granted visitation rights to see the detenus/children.

21. The petitioner and the fourth respondent could not arrive at a common place for the purpose of producing and meeting the children and therefore, this Court deems fit to direct the petitioner to produce the children/detenus once in two weeks on Saturdays between 11.00 a.m. and 1.00 p.m. in the Creche attached to the Family Court at Chennai, subject to working days of the school in which the children/detenus are studying.

22. In the light of the allegations levelled against each other, when the children/detenus are produced by the fourth respondent as directed above, a women police official in the rank of either Sub-Inspector of Police or Head http://www.judis.nic.in Constable attached to B-2, Esplanade Police Station, Chennai-600 001 shall 14 also remain present and an advance communication as to the bringing of the children on those dates shall also be given by the fourth respondent to the Station House Officer of the said police station and this arrangement shall go on for a period of twelve weeks and in the interregnum, either the petitioner or the fourth respondent or both of them shall take every endeavour to initiate appropriate legal proceedings as to the care and custody of the detenus/children.

23. In the result, this Habeas Corpus Petition is dismissed, subject to the above observations.

                                                              (M.S.N.J.,)      (M.N.K., J.)
                                                                         21.02.2019
               Index : Yes / No
               Internet : Yes / No
               Jvm
               To
               1.The Commissioner of Police,
                 132, Commissioner Office Building,
                 EVK Sampath Road, Vepery,
                 Periyampet, Chennai-600 007.

               2.The Assistant Commissioner of Police,
                 Muthuranga Mudali Street,
                 Tambaram, Chennai-600 045.

                       3.The Inspector of Police,

http://www.judis.nic.in All Women Police Station, Muthuranga Mudali Street, Tambaram, Chennai-600 045.

4.The Station House Officer, B-2, Esplanade Police Station, Parrys, Chennai-600 001.

5.The Public Prosecutor, Madras High Court, Chennai.

http://www.judis.nic.in 16 M.SATHYANARAYANAN, J., AND M.NIRMAL KUMAR, J.

Jvm Pre-Delivery Order in H.C.P.No.1277 of 2018 http://www.judis.nic.in

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