Madras High Court
Solomon Thangaraj vs The Commissioner Of Police on 1 October, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.10.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
H.C.P(MD)No.1211 of 2015
Solomon Thangaraj
S/o.Manimuthu
No.3/748 Aavin Nagar
Madurai .. Petitioner
Vs.
1.The Commissioner of Police,
Madurai City,
Madurai.
2.The Inspector of Police (L&O)
Anna Nagar Police Station
Madurai City
3.Saranya @ Sara
D/o.Neelamegam
4.Valli
5.Panjavarnam
6.Joseph Balachandran
7.John Moses Prabakaran
8.Dr.Yazhini Selvaraj
Ponni Hospital
Narayanapuram
Natham Road,
Madurai.
9.Senthilkumar
S/o.Sathyanarayana
No.225 Prakasam Street
Senthil Nagar,
Thirumullaivayal
Chennai.
10.S.Parameswari
W/o.Senthilkumar .. Respondents
(Respondent No.8 is impleaded as suo motu
as per the order of this Court dated
(Respondents 9 and 10 were impleaded as
respondents as per the order of this
Court dated 04.09.2015)
Habeas Corpus Petition is filed under Article 226 of the Constitution
of India praying to issue a Writ of Habeas Corpus to direct the respondents
to produce the person or body of the detenue, the petitioner's unnamed child,
S/o.Solomon Thangaraj, aged about 3 months, before this Court and hand over
the minor child to the petitioner's custody.
!For Petitioner : Mr.P.Vijendran
^For Respondents : Mr.K.S.Duraipandian for RR1 & RR2
Addl.Public Prosecutor
Mrs.J.Nisha Banu for RR3 to 5
Mr.K.Samidurai for RR6 & 7
Mr.M.Subash Babu for RR8
Mr.S.Palanivelayutham for RR9 & RR10
:ORDER
(Order of the Court was made by S.NAGAMUTHU, J.) The petitioner claims that the third respondent is his 2nd wife. According to him, when he was working as a Manager in a private concern in Kallakurichi in Salem District, there arose a misunderstanding between him and his first wife and accordingly, they mutually separated themselves from each other. In this regard, according to the petitioner, a deed of divorce was also executed bilaterally between him and his first wife in the presence of the Notary Public. He has got two sons through the first wife, who are all doing college studies.
2. The petitioner has further averred that while he was so working as a joint Manager in a private company at Madurai, the third respondent approached him seeking his help for a job in a private company. In due course of time, according to him, the third respondent expressed her love for him and her intention to marry him. Out of the said wedlock, according to him, the third respondent became pregnant. He has further averred that thereafter, the 3rd respondent was admitted in a hospital for delivery of the child. After that, according to him, he returned to Madurai to see his wife, namely, the 3rd respondent. But, according to him, in the hospital, the respondents 4 and 5 prevented him from seeing the 3rd respondent. The 3rd respondent delivered a child in the hospital. He was not even informed about the gender of the child. Later, according to him, he came to know that the child was born on 03.06.2015 and thereafter the child was sold to an unknown person through the respondents 6 and 7. With these allegations, he made a complaint to the 2nd respondent on 29.06.2015. But the child was not rescued. With these allegations, he filed the present Habeas Corpus Petition before this Court on 14.08.2015.
3. In the Habeas Corpus Petition, as it was originally filed, the respondents 1 to 7 herein alone were added as parties and the learned Additional Public Prosecutor took notice for the official respondents.
4. On 24.08.2015, when the petition came up for hearing, the petitioner was present. The third respondent was also present. The Inspector of Police investigated the case was also present. On the date, this Court passed the following order:
?The petitioner is present before this Court. According to him, in the year 1992, he married one Janaki. Through whom, he has got two sons, who are aged 20 and 21 years respectively. He would further state that in the year 2012, when he was working as an Administrative Officer in Madurai, the third respondent Saranya approached him and wanted his help to secure a job. He would further state that he secured a job. He also states so many other allegations against her. Finally, he would say that he married the third respondent, after effecting divorce between him and the first wife through a Notary Public. He would further state that out of the said wedlock, the third respondent became pregnant, but, however, the child was sold by her for seven lakhs through the 6th respondent.
2. The third respondent would state that the petitioner had cheated her and had committed various offences, regarding which, she made a complaint to the 2nd respondent police.
3. The 2nd respondent would state that he has already registered a case in Crime No.1389 of 2015 under Sections 406, 420, 365, 376 and 506(i) IPC and under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. The 2nd respondent submitted that he was searching for the petitioner to arrest him in connection with the said case. Now, he intends to arrest the petitioner.
4. We are of the view that it is for the 2nd respondent to decide whether to arrest the petitioner or not and if he decides to arrest him in connection with the said case, he is at liberty to arrest him. Regarding the child, the third respondent would submit that one Dr.Yazhini Selvaraj of Ponni Hospital, Narayanapuram, Natham Road, Madurai ? 14, helped her to give the child in adoption and the whereabouts of the child is not known to her.
But the petitioner would submit that the child was sold by the 6th respondent. Thus, it remains to be a mystery. Therefore, in order to ensure the safety of the child, we intend to issue a direction for the production of the child before this Court. For that Dr.Yazhini Selvaraj, Ponni Hospital, Narayanapuram, Natham Road, Madurai 14, is impleaded suo motu as the 8th respondent in this petition. The Registry to send notice to the respondents 4 to 8 returnable by 31.08.2015.
5. In the event, the petitioner is arrested and detained in custody, he shall be produced before this Court on 31.08.2015 by the 2nd respondent. If he is in judicial custody, the jail authority shall ensure his production before this Court on 31.08.2015. In the meanwhile, the respondents 1 and 2 shall search for the child and produce the child before this Court with a report.?
5. On 31.08.2015, again when this matter came up for hearing, this Court passed the following order:
?When the matter was taken up for hearing, the learned Additional Public Prosecutor would submit that the petitioner is in Central Prison, Madurai and he would be produced before this Court today at 2.15 p.m. itself. The said statement is recorded.
2.The third respondent viz., Saranya @ Sara is present before this Court. The 8th respondent viz., Dr.Yazhini Selvaraj is also present. She would state that after the child was born, the third respondent did not even want to see the child and she was in a mood to abandon the child. Therefore, the 8th respondent was taking care the child for some time. Then, one Parameswari, a patient who underwent treatment under her for infertility, wanted to adopt the child. The 8th respondent handed over the child out of good intention to Parameswari. Today, the said Parameswari, along with her husband by name Senthilkumar, is present. The child is also produced by them. They would submit that the child was adopted by them.
3.In our considered view, in order to ascertain the truth on these allegations and in order to ascertain the paternity of the child, it is absolutely necessary to direct the Paternity Test for the child. It is only, after ascertaining the same, further orders could be passed in this matter.
The third respondent is also willing to undergo medical examination to ascertain the paternity of the child. The said statement is recorded.
4.Therefore, the Inspector of Police, Anna Nagar Police Station, Madurai City is directed to lead the third respondent and also to lead Parameswari and her husband, along with the child, to go over to the Government Rajaji Medical College Hospital, Madurai, for conducting paternity test for the child to find out whether the child was born to the third respondent or not. The Dean, Rajaji Medical College Hospital, Madurai, is directed to form a team forthwith, conduct paternity test for the child and submit a report today itself through the learned Additional Public Prosecutor Mr.K.S.Durai Pandian. The parties are directed to file their response today itself.
5. Call the matter at 2.15 p.m.?
6. When the matter was taken up at 2.15p.m., on 31.08.2015, this Court passed the following order:
?When this matter was taken up at 2.15p.m., today, the leaned Additional Public Prosecutor submitted that the child and the third respondent have been to the Government Rajaji Hospital, Madurai, for DNA examination as directed by this Court. But he has been instructed to say that the test results will be made ready within a week.
Post the matter on 04.09.2015. The petitioner has been produced by the 2nd respondent from the Prison. He shall be taken back to the prison and he shall be produced again on 04.09.2015. We make it very clear that the proceedings pending before this Court shall not be a hindrance for the petitioner to move for bail before the learned Judge or the Courts below. Post on 04.09.2015.?
7. The matter was, thereafter, adjourned for one reason or the other at the request of the parties. Again, when the matter came up for hearing on 04.09.2015, this Court passed the following order:
?The petitioner has been produced by the Central Prison, Madurai and when enquires would commence, he would state that the female child, who has been produced before this Court, is not the child for whose custody, the petitioner has filed the present Habeas Corpus Petition. He would state that even when the third respondent was pregnant, he took her for medical examination and he came to know that the child in the womb was a male child. He would further state that the 2nd respondent also told him that the child born to the third respondent was a male child. That is the reason why he filed the Habeas Corpus Petition for the production of the male child. Therefore, according to him, the female child produced before this Court was not born to him.
2. The learned Additional Public Prosecutor would submit that for conducting the paternity test for the child to verify the child produced before this Court was born to the third respondent, as ordered by this Court, DNA examination is in progress. He seeks time to get the opinion. The Director, Regional Forensic Science Lab, is hereby directed to expedite the DNA examination in case No.MDU/DNA/PAT/51/2015 dated 02.09.2015 and furnish the opinion to the Investigating Officer on or before 09.09.2015 and the same shall be produced by the 2nd respondent on 10.09.2015 during the hearing of this case.
3. The 6th respondent has filed a counter affidavit and the 8th respondent has also filed a counter affidavit. The female child allegedly born to the third respondent, as it is seen from the records has been handed over to one Mrs.Parameswari and her husband Mr.S.Senthilkumar. These two persons are present before this Court and the child is in their custody.
They say that the child has been taken in adoption by them. Therefore, in this Habeas Corpus Petition, they are necessary parties. Therefore, suo motu, they are added as respondents 9 and 10. The address of Mr.S.Senthil kumar, is Mr.S.Senthilkumar, S/o.Sathya Narayana, No.225 Prakasam Street, Senthil Nagar, Thirumullaivayal, Chennai 62, Mobile No.9444129695. The 10th respondent is Mrs.S.Parameswari, W/o.S.Senthilkumar. These two newly added respondents, seeks time to file counter. They undertake to produce the child on 10.09.2015.
4. It is directed that the child shall be kept safely by the respondents 9 and 10 and be produced before this Court on 10.09.2015. The petitioner shall be taken back to the prison and if not released on bail by the competent Court, he shall be produced before this Court on 10.09.2015. In the meanwhile, if he is released on bail, he shall make appearance before this Court on that date.?
8. The matter was taken up for hearing on 10.09.2015, on which date, this Court passed the following order:
?The third respondent filed counter. The third respondent is directed to serve copies of the same to the learned counsel for the petitioner.
The petitioner is present. But, there is no representation for him. The learned counsel for other respondents seek time to argue the case. Post on 15.09.2015.
In the meanwhile, the petitioner shall be taken back to the prison and he shall be produced before this Court on 15.09.2015, if he is not released on bail by the competent forum.
In the event, he is released on bail, he shall make his appearance before this Court on 15.09.2015.?
9. Then, it was adjourned to 15.09.2015, on which date, this Court passed the following order:
?The learned counsel for the petitioner has received a copy of the counter filed by the 3rd respondent. He seeks a weeks time. Post on 21.09.2015. The petitioner has been produced by the Jail authorities. He is directed to be taken back to the jail. The parties are directed to appear before this Court on 21.09.2015.?
10. On 21.09.2015, when the matter came up for hearing, this Court passed the following order:
Mr.M.Solaisamy, learned counsel for the petitioner, submitted that he has engaged a different counsel from Chennai and he wants the case to be listed for arguments on 28.09.2015.
2. It is submitted by the learned counsel for the petitioner that the petitioner has come out on bail and he has not made his appearance due to ill health. The same is recorded. He is directed to be present on the adjourned date.
3. The respondents 9 and 10 are present along with the child in question. The third respondent is also present. The respondents 7 and 8 are also present. The parties are represented by their respective counsel.
4. When it was pointed out to the learned counsel that the young child is brought every time from Chennai by train and it may not be good for her health, the learned counsel has got objection. But considering the fact that the child is too young and make the child to travel such a long distance, that too frequently, may not be conducive for her health, the presence of 10th respondent and the production of the child on the adjourned date is dispensed with. It is made clear that the child shall be kept safely and shall be produced before this Court as and when directed.
5. At the request of the learned counsel, post the matter on 28.09.2015. The other respondents are directed to be present on 28.09.2015.
11. The matter has come up today again for hearing. In the meanwhile, the 3rd respondent has filed a counter, wherein, she has stated that there was no marriage between her and the petitioner at all. She has narrated in paragraph Nos.2 to 4, the events that took place resulting in handing over the child to the respondents 9 and 10. The specific stand taken by her is that there was no marriage between her and the petitioner and the child was given by her in valid adoption to the respondents 9 and 10 and thus, the child has been under the legal custody of the respondents 9 and 10.
12. The 9th respondent has filed a counter, wherein, he has stated that in Paragraph Nos.4 to 10 as follows:
?4.I submit that I got married to the 10th respondent some years back. Though my marriage life with the 10th respondent is going on smoothly, the god has not given blessing by giving a child in my married life. Hence, I had consultation with eminent, Gynecologists at Chennai. My continuous treatments for having a child with variious Gynecologists did not yield any fruitful result. Later I came to know that one Mrs.Yazhini Selvaraj, W/o.Selvaraj at Madurai is an eminent personality in giving proper treatment for the childless couple. On knowing the same, I came to the said hospital for proper treatment.
5.I submit that when I was taking treatment with the 8th respondent for having a child in my life, I came to know that one Saranya @ Sara, the 3rd respondent herein had term pregnancy and she had not been supported by anybody else, due to the reason that it is an unwed pregnancy and when I was visiting to Hallelujah towers, Moondrumavadi, K.Pudur, Madurai. It was also further understood by me that the 3rd respondent herein is undergoing treatment for delivery with one Dr.Rajini Premalatha, who is running a nursing home under the name of Grace Nursing Home at Madurai.
6. I submit that in view of the said reasons, I requested the 8th respondent to talk to the said Gynecologists by name Dr.Rajini Premalatha with regard to adoption of the said baby after delivery. On my request, the said Dr.Rajini Premalatha was contacted by the 8th respondent only with a view to do some favour to me. It was also confirmed by the family members of the 3rd respondent who are mother and aunty after concurrence with the 3rd respondent. They showed interest to give adoption legally to me and my husband as we being a decent good family and having no child after our marriage.
7. I submit that later I came to know that the 3rd respondent was referred to the 8th respondent for the baby delivery and the baby was born on 03.06.2015. It is well known to the 8th respondent that I had been taking treatment in her hospital as from 18.07.2014 for infertility treatment with surrogacy. The said treatment was not a successful one to me as I had recurrent failure in IVF (Invitro fertilization) at Chennai. For the continuous of the treatment.
8. I submit that whenever I come to Madurai I would visit Hallelujah Towers for prayer. There only I got all the above information about the adoption of the said baby.
9. I submit that on 04.06.2015, I got the baby under adoption from the family members of the 3rd respondent at the instance of the 3rd respondent.
When baby was being handed over to me the 3rd respondent, his mother, his aunty and also the 8th respondent were present.
10. I submit that the baby is now with me and I and my husband are taking care of the baby sincerely as like over own baby. Though the legal procedures are not known to me, I got the baby adopted and celebrated naming ceremony of the baby in a grand manner and without any problem I and my husband are taking care of the baby as on day.?
Thus, according to the 9th respondent, the child in question was validly taken in adoption by him and his wife from the 3rd respondent and thus, according to him, he is entitled to keep the custody of the child.
13. The 6th respondent has filed a counter, wherein, inter alia, it is stated in paragraph Nos.3 to 6 as follows:
?3.I respectfully submit that the 3rd respondent Saranya @ Sara along with respondents 4 and 5 came to my Church for the purpose of prayer and counselling. At the time of counselling the 3rd respondent had narrated the incident that the petitioner herrein had harassed her and sexually abused her both physically and mentally. It is also stated to me by the 3rd respondent herein due to the sexual abuse by the petitioner, she became pregnant. She came to my Church for the counselling in the advanced stage of pregnancy i.e. Before 28.06.2015. Further, she had stated to me that it caused a shame to her and decided to end her life. Hence, I have counselling and prevented her from taking extreme steps.
4. I respectfully submit that the 3rd respondent requested me to refer to a hospital. Hence, I referred her to Dr.Rajini Premalatha of Grace Nursing Home who's also one of the members of our Church. Thereafter it came to my knowledge that on 02.06.2015, at 11.00 p.m., as per the request made by the 8th respondent, Dr.Rajini Premalatha sent the 3rd respondent for delivery to the 8th respondent Dr.Yazhini Selvaraj and advised her to give adoption legally. The 3rd respondent delivered a female baby on 03.06.2015 at 8th respondent's hospital (Ponni Hospital).
5. I respectfully submit that whenever Parameswari came to Madurai, she visited our Church and she knew all the facts. It came to my knowledge that the child was given in adoption to Parameswari by 3rd respondent I have no role in this events.
6. I respectfully submit that the petitioner was a believer of our Church 15 years ago. It came to my knowledge that he had involved himself in bad activities, so he left from my Church permanently. As stated in the affidavit, I have not received any money for the child. It is pertinent to note that as alleged in the affidavit the child was not sold either through me or by the 7th respondent herein. I am the senior citizen and I dedicated my entire life to the service of Jesus and for the upliftment of poor and downtrodden people in the Society.?
14. The 8th respondent has filed a counter, wherein, she has stated as follows:
?2.I state that Mrs.Jansi W/o.Mr.Joseph Balachandran, Pastor, Allalluya Towers, Moondrumavadi, K.Pudur, Madurai, who is 6th respondent's wife in this case through Jeyarani my sister in law who is member of Allalluya Tower informed me that Saranya @ Sara 3rd respondent had term pregnancy and Saranya @ Sara's husband did not supported her, since it is an unwed pregnancy and Parameswari, who used to visit Allalluya Tower informed Pastor's wife Jansi that she had no child. Therefore, Pastor's wife informed Jeyarani about Saranya @ Sara and she was taking treatment at Grace Nursing Home run by Dr.Rajini Premalatha and you to get adoption legally from her, since it was unwed pregnancy as the mother does not want her child.
3.I state that my patient Parameswari after knowing about an unwed pregnancy of Saranya @ Sara taken care by Dr.Rajini Premalatha who is running Grace Nursing Home asked me to talk with Dr.Rajini Premalatha, on my enquiry, Dr.Rajini Premelatha told, she is taking care of Saranya @ Sara who and her mother Valli, her aunt Panchavarnam are all do not want the baby and therefore, ready to give for adoption legally to anyone good family. After two weeks of this conversation on 02.06.2015 at 11.00 p.m., Dr.Rajini Premalatha sent the girl for delivery to me, and I admitted at 11.50 p.m. and on examination, I found that she was in labour with ruptured membrances with cervix well effaced and 2 cm dilated with vertex at minus one station and thin me-conium stained liquor draining. She delivered at 03.06.2015 at 4.23 a.m. Normally a live term female baby. Soon after delivery I showed the baby to the mother but she refused to see the baby and handle the baby therefore, I kept in labour ward taking care of the baby.
4.I state that one Parameswari wife of Senthhilkumar took treatment in my hospital from 18.07.2014 for infertility treatment with surrogacy. Since she had recurrent failure in IVF (Invitro fertilization) at Chennai. She used to come often in search of a surrogate and further treatment since the 1st surrogacy was a failure.
5.I state that whenever Parameswari came to Madurai she will visit Allalluya Tower for prayer where she knew all this as stated above and therefore, after discussing with Saranya @ Sara's mother and her relatives discussed about adoption and on 04.06.2015 they handed over child to the Parameswari as adoption in front of me. Since baby's mother and relatives handed over the child to Parameswari, I felt in good faith, it is for the welfare of the child, I did not stand in the way.
6.I state that except narrating above, I did not do anything against law. I am a retired senior assistant surgeon, Government Rajaji Hospital, Madurai. Retired Assistant Professor Department of Obstetrics and Gynecology, Madurai Medical College. I am having 33 years service experience in the Medical field and in my service upto date there is no remark against me. In this case, I conduct a delivery without receiving any fee on humanitarian ground and above stated responsible person requested to took treatment. To that effect, I am filing this counter affidavit.?
15. As directed by this Court, the child in question was sent for DNA examination. The petitioner and the 3rd respondent had appeared before the Experts for the said purpose. Now, the Assistant Director, Regional Forensic Sciences Lab, Madurai, by his proceedings, in MDU/DNA/PAT/2015, dated 07.09.2015, has given a report that the petitioner is the biological father and the 3rd respondent is the biological mother of the child. Thus, it has been ascertained that they are the biological parents of the child.
16. Today, when the matter was taken up for hearing, the petitioner was present. The respondents 3 and 4 were present. The 5th respondent is the aunt of the 3rd respondent, who has not made appearance. The respondents 6 to 9 were also present. As permitted by this Court, the 10th respondent did not appear, the child also was not produced.
17. Today, we heard the learned counsel on either side and the learned Additional Public Prosecutor as well.
18. Mr.P.Vijendran, learned counsel for the petitioner, would submit that the marriage between the petitioner and the 1st wife was dissolved and thus, he was eligible for marrying the 3rd respondent. He would further submit that the marriage between the petitioner and the 3rd respondent is valid, as per the provisions of the Special Marriage Act. He would further submit that at any rate, since the child has been proved to be the child of the petitioner and the 3rd respondent, the child should be either in the custody of the 3rd respondent or in the custody of the petitioner. He would further submit that the so called adoption said to have been given in favour of the respondents 9 and 10 is not at all valid and therefore, they have got no right to keep the child.
19. The learned counsel, Mrs.J.Nisha Banu, appearing for the 3rd respondent submitted that out of her own volition, in a lawful manner, the 3rd respondent gave the child in adoption in favour of the respondents 9 and
10. She would further submit that, for any reason, if this Court, prima facie, finds that the said adoption is not valid, the 3rd respondent is prepared to take back the child and to keep the child, rear the child and bring her up in her life. She would further submit that the 3rd respondent is not willing to hand over the child to the petitioner, because, the petitioner had cheated her and committed offences against her.
20. The learned counsel, Mr.Palanivelayutham, representing the respondents 9 and 10 would submit that the adoption is valid and in the interest of the child, since the child has been all along in the custody of the respondents 9 and 10, the child may be allowed to be in the custody of the respondents 9 and 10. He would further submit that if the Court, so directs, they are prepared to hand over the child safely to the 3rd respondent. He would further submit that however, liberty may be given to the respondents 9 and 10 to work out their remedy through the civil Court.
21. The learned counsel, Mr.M.Subash Babu, appearing for the 8th respondent, would submit that the 8th respondent has nothing to do with the adoption. The learned counsel would reiterate the stand taken by the 8th respondent in her counter. He would further submit that the 8th respondent is an experienced Doctor with pious approach to the poor people. She had not committed anything illegal in this matter, the learned counsel submitted.
22. Mr.K.Samidurai, learned counsel for the 6th respondent, submitted that he has got nothing to do with the handing over of the child to the respondents 9 and 10. He would further submit that he only helped to have safe delivery in the hospital.
23. The learned Additional Public Prosecutor would submit that the allegations that the child in question was sold away by the 3rd respondent to the respondents 9 and 10 is not correct and the investigation has revealed that there was no such sale of the child at all. He would further submit that the child is now in the safe custody of the respondents 9 and 10.
24. we have considered the above submissions.
25. As we have narrated hereinabove as to the happenings on every hearing of this case, we are only reminded of King Solomon's Court, where a similar fight was made for a child. Here also, for a beautiful child, fight is going on between three parties, namely, the petitioner Mr.Solomon Thangaraj, the 3rd respondent and the respondents 9 and 10. Though the issue is somewhat piquant, as we have approached the issue taking into consideration the larger interest of the child as well as sentimental and emotional attachment of the parties with the child, we suggested to the parties to settle the issue among themselves so that the child could be brought up well to be an useful citizen of this Country. But, they expressed their inability to come to any kind of settlement.
26. Now, going into the facts of the case, though it is claimed by the petitioner that the marriage between him and his 1st wife has been dissolved, we do not find any material to believe the said story. Admittedly, the petitioner is a Christian and his wife is also a Christian. There was no divorce effected, according to the relevant law. The mere deed of divorce said to have been bilaterally executed by the petitioner and his 1st wife shall not dissolve the marriage.
27. Secondly, the 3rd respondent is a Hindu by religion. It is alleged by her that there was no marriage between her and the petitioner at all. It is her further allegation that she was coerced and deceived and under such deception, the petitioner had sexual intercourse with her, which resulted in pregnancy. This is disputed by the petitioner. We are of the view that this issue need not be resolved by this Court for the purpose of this Habeas Corpus Petition. It is enough for us to say that the so called marriage, as claimed by the petitioner between him and the 3rd respondent is not at all valid, because the alleged marriage between them was admittedly, not solemnized as per the provisions of the Special Marriage Act. Therefore, there is no marital status between the petitioner and the 3rd respondent. But the learned counsel for the petitioner would submit that the petitioner and the 3rd respondent were living together as husband and wife and thus, the Society itself has treated them as husband and wife. This is disputed by the learned counsel, Mrs.Nisha Banu for the 3rd respondent. According to her, there was no occasion at all for them to live as husband and wife to be noticed by the Society at all. There is no living in relationship between themselves also. Therefore, at any stretch of imagination, the claim of the petitioner that the 3rd respondent is his wife cannot be legally sustained, it is further submitted by the learned counsel for the petitioner. As of now, prima facie, from the facts placed before us, we are satisfied that there was no valid marriage between the petitioner and the 3rd respondent.
28. Now, turning to the adoption allegedly given by the 3rd respondent to the respondents 9 and 10, there is no valid adoption made. The child was simply handed over to the respondents 9 and 10 by the 3rd respondent, that too, as soon the child was born in the hospital in the presence of the 8th respondent. Though it is contended by the petitioner that the child was not given in adoption, but the child was only sold by the 3rd respondent to the respondents 9 and 10, the same is unbelievable and we reject the said contention, in view of the submissions made by the learned Additional Public Prosecutor that the investigation has revealed that there was no such sale of the child at all. Under some arrangement, as claimed by the 3rd respondent, in the best interest of the child only, the child had been given to the respondents 9 and 10.
29. As stated by the respondents 9 and 10, they had been longing for a child for about 20 years, since their marriage. They had come to the hospital run by the 8th respondent for infertility treatment to have a child. According to them, the 8th respondent expressed that going by the age of the respondents 9 and 10, the chances of begetting a child was remote. It was, in those circumstances, out of their ambition to have a child, they had entered into a kind of arrangement with the 3rd respondent and taken the child. Therefore, handing over the child by the 3rd respondent to the respondents 9 and 10 cannot be stated to be illegal. Whether the respondents 9 and 10 can lawfully keep the child in their custody is a different question. But the transfer of the child from the custody of the 3rd respondent to the custody of the respondents 9 and 10 is not illegal, we hold it very firmly on that.
30. With the above conclusions, we have to decide about the future custody of the child. As we have concluded that there is no valid adoption of the child in accordance with law and so the respondents 9 and 10 have no legal right to hold the custody of the child. The learned counsel for the petitioner would submit that in such an event, the child may be ordered to be either in the custody of the 3rd respondent or in the custody of the petitioner. Mrs.J.Nisha Banu, learned counsel for the 3rd respondent, would submit that the 3rd respondent is prepared to take back the child and with the help of the 4th respondent her mother, she would keep the child in safe custody and maintain her. The 3rd respondent, who was present before this Court, also submitted the same.
31. Among the petitioner and the 3rd respondent, in our considered view, since there was no valid marriage and since the child is hardly 5 months old, in the interest of the child, the child should be only in the custody of her mother, namely, the 3rd respondent. We cannot entrust the child to the petitioner, who is already married having a wife and two college going sons. If the respondents 9 and 10 have got any claim over the child on the ground that the adoption is valid, it is always open for them to work out their remedy before the civil Court. Similarly, if the petitioner feels that he has got any right to have the custody of the child, again it is open for him to approach the civil Court. For the purpose of this Habeas Corpus Petition, we only hold that the 3rd respondent being the mother of the child alone is legally entitled to keep the child, as of now. It is also open for the 3rd respondent and the respondents 9 and 10, to make a valid adoption by following the legal procedure, if so advised, in the event the adoption already taken is found to be legally defective. We have also taken into account the emotional attachment, the respondents 9 and 10 have for this child. For about 5 months, they have maintained the child treating her as their own daughter. When the 9th and 10th respondents appeared before this Court along with the child, we could notice them in tears begging to this Court not to separate the child from them. There is no iota of doubt that the child has been all along maintained very well by the respondents 9 and 10 and so, the best interest of this child would be saved, if she is kept in the custody of them. But, the existing law does not give room for decision driven by emotion and sentiment. So, we are unable to hand over the child to be in the legal custody of the respondents 9 and 10. However, in the best interest of the child and going by the economic status of the 3rd respondent, we permit the 3rd respondent to allow the respondents 9 and 10 to visit the child and also to allow them to take the child with them.
32. So far as the criminal case registered against the petitioner is concerned, the disposal of this Habeas Corpus Petition shall not be an impediment for the investigating officer to proceed with the investigation to find out the truth and then, to file an appropriate final report.
33. In view of the foregoing discussions, the Habeas Corpus Petition is disposed of in the following terms:
(1) The 3rd respondent shall take back the child in question from the custody of the respondents 9 and 10 and keep the child in her custody and maintain her properly.
(2) The Chairman, District Child Welfare Committee, shall visit the house of the 3rd respondent every month to ensure that the child is properly maintained by her and there is no harm caused to her.
(3) If any harm is caused to her and in the event, the child is not properly maintained, the Chairman, Child Welfare Committee shall report to the Registry and if any such report is received, the Habeas Corpus Petition shall be listed for further hearing.
(4) The Assistant Commissioner of Police, Anna Nagar, is directed to give adequate protection to the respondents 3 and 4 and the child in question for the peaceful living in Madurai.
(5) The petitioner shall not in any manner caused any harm either physically or mentally to the respondents 3 and 4 or to the child in question. However, if he feels that he has got any legal right in respect of the custody of the child, he can work out his remedy before the civil Court.
(6) The respondents 9 and 10 are also at liberty to work out their remedies in respect of the custody of the child, if so advised, before the competent civil Court. We make it clear that the observations made by us, in this order, that the adoption is not valid is only a prima facie opinion arrived at for the purpose of this Habeas Corpus Petition and that shall not influence the mind of the civil Court in the event, any claim is made on the basis of the said adoption.
(7) The 3rd respondent is at liberty to make a representation to the Registry of this Court, in the event, any disturbance is caused to her either by the petitioner or anybody else in the matter of the custody of the child and if any such representation is made, the Registry shall list the same along with the Habeas Corpus Petition again, for further hearing.
(8) The Assistant Commissioner of Police, Annanagar, Madurai, shall depute a Woman Sub Inspector of Police, who shall accompany the 3rd respondent to Chennai to the house of the respondents 9 and 10. The respondents 9 and 10 shall hand over the child safely to the 3rd respondent in the presence of the Sub Inspector of Police. The Sub Inspector of Police shall make record of the same and submit a report to this Court. They shall go to the house of the respondents 9 and 10 by 15.10.2015.
(9) Considering the fact that the child was all along in the safe custody of the respondents 9 and 10, and they have emotional attachment to the child, they are at liberty to visit the child with the consent of the 3rd respondent and the 3rd respondent is also at liberty to permit the child to be taken and kept by the respondents 9 and 10. This permission is granted considering the economic status of the 3rd respondent and the best interest of the child. If the 3rd respondent permits the child to be taken by the respondents 9 and 10, she shall intimate the same to the Child Welfare Committee and the police.
To
1.The Commissioner of Police, Madurai City, Madurai.
2.The Assistant Commissioner of Police, Anna Nagar, Madurai.
3.The Inspector of Police (L&O) Anna Nagar Police Station Madurai City
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..