Madras High Court
O. Ulaganathan vs K.R.G. Chandrasekar And Ors. on 29 March, 1993
Equivalent citations: (1993)2MLJ201
ORDER Swamidurai, J.
1. Ulaganathan, petitioner herein has filed this writ petition for habeas corpus for a direction to the respondents 1 to 4 to produce his minor daughter Sunitha alias Obulaxmi and for setting her at liberty in the custody of the petitioner. The first respondent is the father-in-law and the second respondent is the mother-in-law of the petitioner. The petitioner married Uma Maheswari on 9.6.1984 and a female child was born on 11.12.1986 and the minor child Miss. Sunitha is now aged about six years. The minor daughter is studying in Mettur St. Marys Montessori School at Mettur Dam from 24.5.1990 and she was in the school till 5.5.1992. The petitioner has stated that his family is one of the richest families in Salem District carrying on business. The petitioner was living with his wife happily. The petitioner's parents are having two sons including himself and the petitioner is the eldest son. His wife being the only daughter-in-law of his parents, was treated with great love and affection by the entire family. The petitioner and his wife decided to educate their daughter in a good convent at Ooty. As per the wishes of the respondents 1 and 2, the petitioner's wife opted for a separate family and accordingly, the petitioner and his wife lived in a separate house at Mettur Dam. The petitioner's wife used to visit the place of her parents frequently. The marriage of his younger brother was also fixed and the petitioner and his wife were actually engaged in the distribution of the wedding cards.
2. On 7.4.1992 when the petitioner's wife was in the kitchen, her sari caught fire accidentally and on hearing her alarm, the petitioner rushed to rescue her and in that process, the petitioner also suffered 30% burns and his wife suffered 75% burns. In spite of best efforts, his wife could not -recover and she succumbed to injuries at Kovai Medical Centre Hospital at Coimbatore on 25.4.1992. In her dying declaration, the petitioner's wife has confirmed that she suffered injuries purely by accident. The petitioner's father-in-law, i.e., the first respondent herein by his letter dated 26.4.1992 addressed to the Sub Inspector of Police, Mettur Dam, has stated that he has no doubt about the incident and he confirmed that the incident took place only by accident. While the petitioner and his wife were undergoing treatment at Kovai Hospital, their minor daughter was in the care and custody of the parents of the petitioner at Mettur Dam. In the month of May, 1992, the respondents 1 and 2 have taken away his minor daughter without his consent and knowledge and after some search for two days, the minor daughter was found in the hands of respondents 1 and 2. It is learnt that the respondents 1 and 2 came in two cars along with some rowdy elements and took away the minor daughter. In spite of mediation to secure the custody of the minor daughter, the respondents 1 and 2 have not conceded to hand over the minor child. Senior citizens of Salem town like R. Kandaswamy Gounder, Tirumalai Chettiar and R. Thiyagarajan, etc. participated in the mediation; but of no avail. The respondents 1 and 2 have threatened the petitioner with deadly weapons with the support of the rowdy elements.
3. The petitioner has stated he has lodged a complaint with the Inspector of Police, Sevapet Police Station on 25.10.92 about the Kidnapping and unlawful custody of his child by the respondents 1 and 2 and he sought for restoration of his child to his custody. The 4th respondent, the Inspector of Police, Sevapet Police Station, Salem registered a case in Crl. No. 566 of 1992 under Sections 147, 148, 506(ii) and 363, I.P.C. and searched for the whereabouts of the minor. The respondents 1 and 2 have kept his daughter at some unknown place and even pretended of their innocence about the whereabouts of the child. He sought for the help of the third respondent, the Superintendent of Police, Salem, and the respondents 3 and 4 could not trace the minor. The petitioner apprehends that the respondents 1 and 2 are trying to leave the jurisdiction of this Court by taking the child outside the jurisdiction of the State of Tamil Nadu. The petitioner being a Hindu, is the natural father and legal guardian of the minor and his parents are alive and wealthy and there are members in his family to look after the minor. The petitioner is very much interested in bringing up the child in good atmosphere and give her the best education. The petitioner wants to put his daughter in a best school at Ooty as per the desire of his wife also. The petitioner has decided even not to marry a second time and the petitioner has got resources for upkeeping the minor. The petitioner is interested in the financial, educational, physical, moral and religious welfare of his child and he also feels that he can console himself of the sorrow of his wife's death at least on seeing his daughter. The petitioner is now aged about 35 years and he suffered 30% burns. The petitioner has lost all hopes of his fruitful life and he is living only for his minor daughter. The respondents 1 arid 2 by using their financial influence and with the help of rowdy elements, have taken away his minor daughter.
4. It is submitted that the second respondent has filed O.P. No. 209 of 1992 in the District Court, Salem under the Guardians and Wards Act for appointment of the second respondent as guardian of the minor suppressing all the facts and disclosing all false and baseless and defamatory allegations. The petitioner is in sound health with enough resources to safeguard the interest and welfare of the minor. His paramount consideration is to take care of the welfare of his minor child. The respondents 1 and 2 have even poisoned the mind of the minor and the petitioner is not given an opportunity to see and speak to his daughter. The object of the second respondent in seeking for appointment as guardian is not based on the welfare of the minor; but in a bid for the personal desire of the respondents 1 and 2 herein of harassing and for getting the property. The action of the respondents 1 and 2 in detaining the minor without the consent and against the wishes of the petitioner amounts to illegal custody. The application filed by the second respondent for appointing her as the guardian of the minor, cannot be entertained unless the petitioner is declared as an unfit person by a competent court to be a guardian of the minor and not otherwise. As the second respondent has already filed a petition seeking for appointment as guardian for the minor and if the concerned court finds that the petitioner is unfit to be a guardian and grants the relief as prayed for by the second respondent, then the petitioner undertakes to obey the said order. Till such time, the respondents 1 and 2 do not have any right at all to detain the minor. The respondents 1 and 2 have detained the minor secretly and even the respondents 3 and 4 could not trace out the whereabouts of the minor. The respondents 1 and 2 are not interested in the welfare of the minor; but only in the property of the petitioner. The petitioner is very much worried about the safely of his daughter. The respondents 1 and 2 have no right or manner to keep the minor daughter against his will. The minor has been illegally confined against the wishes of the petitioner. Even the efforts of the respondents 3 and 4 in securing the daughter, are not satisfactory and if the respondents 3 and 4 had taken prompt action, there is no need for the petitioner to file this petition before this Court.
5. The petitioner has already filed H.C.P. No. 477 of 1992 for habeas corpus directing the respondents to produce his minor daughter and set her at liberty and this Court has suggested to file a petition for custody before the District Court, Salem, where the petition of the second respondent for appointment of guardian is pending. As per the oral direction of this Court, the petitioner has filed I.A. No. 561 of 1992 on 11.11.1992 in O.P. No. 209 of 1992 before the learned Second Additional District Judge, Salem praying for custody of his minor daughter after withdrawing H.C.P. No. 477 of 1992 pending in this Court. Then notice was ordered in I.A. No. 561 of 1992 returnable on 19.11.1992. Then the matter was adjourned to several dates from 19.11.1992 to 26.11,1992, 10.12.1992 and 5.1.1993 and in the meantime, the Presiding Officer has been transferred and the application was adjourned to 2.2.1993. The petitioner finds that there is no hope for the disposal of the said application expeditiously and he will not get any remedy. The petitioner has suffered physically due to burn injuries and he is also suffering mentally due to his separation of his minor daughter. The petitioner seeks for immediate custody of his minor daughter and as he has no other alternative remedy, he has approached this Court by filing this petition.
6. The respondents 1 and 2 have filed common counter affidavit contending as follows: The writ petition has been filed by the petitioner in gross abuse of process of court in a desperate attempt to thwart the criminal investigations by the police on the complaint given by the first respondent as early as on 28.4.1992, regarding the mysterious circumstances in which their only daughter Uma Maheswari is said to have met with a fire accident at 10.30 p.m. on 7.4.1992 in the petitioner's house. Minor Sunitha, their grand daughter was the only eye witness to the torrid scene and his daughter has requested the first respondent on the night of 7.4.1992 even while she was being taken to the hospital that the respondents 1 and 2 should take away Sunitha with them so that Sunitha would not suffer the same fate like her. From 7.4.1992, the minor is under their loving care and custody and the minor is scared of her father and paternal grant parents. The petitioner who is well aware of these facts and who had been keeping quiet for all these days finding that the first respondent has been taking steps for the investigation by the police on his complaint regarding the death of his daughter by filing the writ petition in this Court on 22.10.1992, "became panicky and since Sunitha was the only eye witness to the occurrence, the petitioner has been initiating action hurriedly to take custody of the minor from them from. 26.10.1992. With this object only, the petitioner filed a criminal complaint against the first respondent on 26.10.1992 falsely alleging that in May, 1992, the first respondent had kidnapped the minor, without his knowledge and consent after taking notice in the O.P. No. 209 of 1992 filed by the second respondent for appointing her as guardian of the minor. On 9.11.1992, the petitioner has filed O.P. No. 226 of 1992 in the court of the learned Principal District Judge, Salem for custody of minor and this petition was signed by the petitioner on 6.11.1992. The petitioner has also filed I.A. No. 1819 of 1992 for interim custody of the minor and without disclosing this fact on 9.11.1992 he filed H.C.P. No. 477 of 1992 in this Court and this Court was not inclined to admit the same and the petition was adjourned by two weeks. Notwithstanding this fact, on 11.11.1992, the petitioner filed I.A. No. 561 of 1992 for custody of the minor in O.P. No. 209 of 1992 filed by the second respondent and the said I.A. is pending enquiry. On 24.11.92, the petitioner withdrew H.C.P. No. 477 of 1992 in this Court, with liberty to raise all objections in that O.P. pending in the District Court. The petitioner has been taking adjournments in the lower court and the matter was adjourned to 2.2.1993. On 25.12.1992, the police has issued a notice calling upon the first and second respondents to attend the enquiry on 19.1.1993 with regard to the complaint filed by the first respondent. On coming to know of this and fearing that the child may tell the truth as to what happened on the night of 7th April, 1992 and with anxiety to get custody of the child immediately, the petitioner has filed this H.C.P. on 19.1.1993 on false grounds. The petitioner has made false allegations as if this Court suggested him to file a petition for the custody of the child in the District Court, wherein the petition filed by the second respondent was pending already. The court is concerned with the welfare of the child only and not the rights of person claiming custody and it has been so held in a catena of decisions by the Supreme Court in this respect. The present petition is not maintainable in law as the substantial petitions before the District Court deciding that question are pending. The first respondent is a permanent resident of Salem, doing Textile and Iron Trade business and he has been living with the family at Salem. The deceased Uma Maheswari was their only daughter. Right from the date of marriage the petitioner at the instigation of his parents had been ill-treating the deceased making demands and unable to bear the torture, the deceased attempted to commit suicide two years ago and the respondents 1 and 2 brought her to their house and consoled her. The respondents had put up with all the miseries and sufferings of their only daughter. The minor child was born about six years ago and the minor was almost living with the respondents land 2 till she was four years old and the minor used to visit occasionally her parents at Mettur Dam where the petitioner is assisting his father in their family business of granite exports. On 7.4.1992 at about 10.30 p.m., the respondents 1 and 2 received a message from one Sekar employed by the petitioner's family who was residing in the first floor of petitioner's residence at Mettur Dam Subburayan Nagar that the deceased had sustained extensive burn injuries that she was being removed to the hospital at Salem at 11.00 p.m. The respondents 1 and 2 rushed to the hospital at about 11.30 p.m. and found the deceased suffering with extensive burn . injuries having been brought in a car accompanied by the petitioner and the minor daughter. The petitioner who had minor burn injuries came in another car to the hospital. The minor was in a panic stricken dazed state. On seeing the respondents, the deceased burst into tears and asked them to take away the minor with them saying that the minor should not suffer the same fate like her. Since the condition of the deceased was critical, the deceased was taken at Kovai Medical centre on the next day. From 7.4.1992, the minor has been living with the respondents land 2 at Salem and the minor has been admitted in St. Joseph Matriculation Higher Secondary School at Salem on 28.5.1992 and she is continuing her studies there.
7. Till 9.4.1992, the deceased did not regain consciousness and so, the respondents 1 and 2 did not want to see their son-in-law also who was the sole cause for the misery of the deceased. The respondents 1 and 2 were not in a position to get any first hand information from anywhere. Slowly the deceased was regaining consciousness and on seeing her mother, the deceased started crying and begged her mother to keep her daughter with them and the deceased was making such a request with tears in her eyes often and often. The minor trembled to hear even the name of her father since she was an eye witness to the whole occurrence and she refused to leave the respondents 1 and 2 even for a moment. The petitioner also at that time told the second respondent and also through his friend one Chezhian that since the minor had witnessed the torrid scene, she might be afraid to go with him and therefore requested the respondents to keep Sunitha with them. The deceased died on 25.4.1992 night and when the respondents were in a broken stage having lost their only daughter, a police constable came to the first respondent and asked him to give a letter as stated by him and told him that unless he would give such a letter the body of the deceased would not be handed over to them immediately and having no other option and being unable to apply his mind even, the 1st respondent gave a letter as dictated by the police constable. Only after hearing the details from the deceased, the respondents 1 and 2 came to know that their daughter had suffered untold miseries every day and she was even beaten by the petitioner. This continuous torture had been the cause for the fire accident.
8. On 28.4.1992 the first respondent sent reports to the Inspector-General of Police and to two other officials by Registered Post mentioning to them the facts and requesting them to take action against the petitioner for the gruesome death of the deceased. Even though the officials had acknowledged the receipt of the reports, no action had been taken towards investigation till October, 1992. The petitioner and his father are rich and influential in the locality and no investigation is made due to their influence. On 19.10.1992 when the first respondent was bedridden with typhoid, he received a telephonic call at 11.00 a.m. from the local police asking them to bring the child to the office of the Superintendent of Police, Salem and in the evening, the first respondent alone went to see the Superintendent of Police and the Superintendent of Police became furious and he sent his police party to his house and they searched for the child in the house and the police people threatened the son of the first respondent when he told them that he did not know the whereabouts of the minor. On 19.10.1992 the first respondent met the Superintendent of Police and at that time, the petitioner, his two uncles and other henchmen were present in the office. The Superintendent of Police instead of enquiring the first respondent on his report, started advising him to hand over the Minor to the petitioner warning him also that if the petitioner would forcibly take away the child from them, the police would not be of help to them, and would not give any protection to them also. In view of the threats of the police, the respondents 1 and 2 had come to Madras with the child fearing for their safety. The Superintendent of Police by abuse of his powers was forcing the first respondent to give custody of the child to the petitioner and he had no intention to investigate the report given by the first respondent.
9. The child is about six years old and she is studying in St. Joseph's Matriculation Higher Secondary School, Salem. The child is terribly scared of her father and her paternal grand parents. After the demise of Uma Maheswari about ten months ago, the petitioner's parents are searching for another girl for his marriage and the personal welfare and paramount interest of the minor will be safeguarded only if the respondents 1 and 2 have the custody of the minor. The first respondent has filed W.P. No. 16610 of 1992 in this Court on 22.10.1992 for a writ of mandamus directing the police officials to take necessary action on his report dated 28.4.1992 given to the police and to register a case and make investigation thereon. The writ petition was admitted on 23.10.1992 and notice was ordered to the police officials. On 26.10.1992, the second respondent filed O.P. No. 209 of 1992 in the court of the learned Second Additional District Judge, Salem, for appointing her as the personal guardian of the minor and in the said O.P., the second respondent filed another interlocutory application for interim orders restraining the petitioner from removing the child from their custody. The petitioner appeared through his counsel on 26.10.1992 and he took time for counter and the matter was posted to 5.11.1992. The petitioner with the help of the Inspector of Police, gave false complaint against the first respondent and two others antedating the same as 25.10.1992 one day prior to the date of the abovesaid O.P. No. 209 of 1992. The Inspector of Police filed a petition on 27.10.1992 in the lower court pleading the case of the petitioner and seeking for the issue of a search warrant for the search of the child on the basis of the report said to have been given on 25.10.1992. The search warrant was also issued. But since the child was not in the premises, the Inspector of Police could not remove the child from their custody. Then on 5.11.1992, the petitioner filed a counter-affidavit in the above O.P. No. 209 of 1992 and filed O.P. No. 226 of 1992 on 9.11.1992 (signed by the petitioner on 6.11.1992) in the District Court at Salem for custody of the child and the same was transferred to the II Additional District Judge, wherein O.P. No. 209 of 1992 filed by the second respondent is pending. The respondents filed a counter to O.P. No. 226 of 1992 on 19.11.1992 and both the O.Ps. were posted to 26.11.1992 at the request of the petitioner. Then there were some adjournments of those cases and finally since the Second Additional Judge was transferred as I Additional Judge, there was no Presiding Officer on 5.1.1993. Hence the matter was posted to 2.2.1993. In the mean while, on 9.11.1992, the petitioner filed H.C.P. No. 477 of 1992 for a writ of habeas corpus in this Court without disclosing the fact that he has filed O.P. No. 226 of 1992 for the same relief for the custody of the child. But on 24.11.1992, the petitioner withdrew H.C.P. No. 477 of 1992 with liberty to raise all objections in the lower court making an endorsement to that effect and hence it was dismissed. The police issued notices to the respondents 1 and 2 calling upon the first respondent to attend the enquiry on 19.1.1993 on his petition. On coming to know of this, the petitioner hurriedly filed the present H.C.P. No. 127 of 1993 in this Court for custody of the minor. This petition is not maintainable in law in view of the fact that the substantial objections filed by both the parties under the Guardian and Wards Act for the same relief are pending in the District Court. The petitioner has filed the present H.C.P. only in an attempt to nullify the proceedings pending before the lower court. As there is no bona fide on the part of the petitioner, he is not entitled to any discretionary relief. These respondents do not admit that the deceased was being treated as Goddess Lakshmi with the new name "Obulaxmi'.
10. No dying declaration was obtained from the deceased and the deceased was admitted in the hospital in the night of 7th April and she died on 25.4.1992. During the last few days she was in the stage of coma and no declaration was obtained at all. The letter of the first respondent given to the Sub Inspector of Police was obtained from him by the constable when the first respondent was in a dazed state under a threat that if he did not give such a letter the body of the deceased would not be handed over to the first respondent. In such circumstances, the first respondent had to write a letter as dictated by the police constable. In the complaint sent on 28.4.1992 by the first respondent, he has mentioned about the circumstances under which he wrote the letter as dictated by the constable. The child is now under the care and custody of the respondents 1 and 2 from 7.4.1992 and it is false to say that in May, 1992, they had taken away the child without the knowledge and consent of the petitioner. The allegations of the petitioner that the second respondent sought for appointment as guardian, is not based on the welfare of the minor; but in a bid for sadistic satisfaction of their personal desire by harassing and to get property are false and they were made with the false object of invoking sympathy in favour of the petitioner and creating prejudice against the respondents 1 and 2. The O.P. was filed by the second respondent for appointing her as guardian of the person of the minor only and not for the minor's property. The legal rights of a person have no place in considering the custody of the minor child and it is only the welfare of the child with which the courts are very much concerned. From the facts and circumstances narrated above, it will show that the petitioner is an unfit person to have custody of the child even if he is the father. This petition is filed for circumventing the enquiry in the original petitions. In his anxiety to evade the criminal investigation on the report of the first respondent, the petitioner has come forward with this petition on false grounds. It was the petitioner who requested the second respondent in April, 1992 to keep the minor with them and the petitioner did not bother about the child till 22.10.1992 when the first respondent filed the writ petition for a mandamus to the police with a view to tamper with the police investigation. The second Additional District Judge is now posted as First Additional District Judge. It is true that there is no Presiding Officer in the Second Additional Court and the two O.Ps. could not be heard. But the petitioner could have asked for a transfer of the two O.Ps. to the file of the First Additional District Judge and for which the first and second respondents have no objection at all. The petitioner has been asking for adjournments all these days in the lower court and he has now come forward with this petition. The petitioner is not entitled to any relief in this petition.
11. The petitioner has filed a reply affidavit denying the allegations made by the respondents 1 and 2 in their counter affidavit contending as follows: The respondents after hearing the incident from the deceased and after having given a letter to the Police on 26.4.1992 stating that the first respondent has no doubt about the incident having taken place accidentally, the accident being an unfortunate one, the petitioner has no necessity to prevent the police from investigating the matter. The report of the first respondent is with an ulterior motive and not for any real purpose. The first respondent is trying to project a story as if the minor is going to be a witness if the criminal complaint is investigated against the petitioner by the Police. It is false that the deceased requested the first respondent to take away the minor with him. This allegation is only an afterthought and created for the purpose of this case. As a natural guardian, the petitioner is entitled to the custody of the minor. It is false that the minor is scared to see the petitioner and his parents and even if it is so, it should be only subsequent development during the illegal custody of the minor with the respondents 1 and 2. The respondents 1 and 2 omitted to state that the petitioner and his parents tried to get custody of the minor through mediators till October, 1992 and having failed in their attempt, the petitioner approached this Court and also the District Court for custody of the minor. Since the petitioner could not get custody through mediation, he had no other go except to file a criminal complaint. Since this Court suggested to the petitioner to move the civil court by filing a petition for custody of the minor, the petitioner filed a petition on 11.11.1992. But the petitioner has also filed an application for interim custody of the child and this has been done from the suggestion of this Court. The petitioner submits that he need not have approached the lower court for filing such a petition as he is natural guardian of the minor. Even though the petitioner was advised to file O.P. in the lower court, but subsequently, he was advised by his Senior counsel to move this Court for speedy and quick remedy. At that time, the petitioner had no knowledge about filing of O.P. on 9.11.1992 in the lower Court and so he did not mention the same in the affidavit in H.C.P. No. 477 of 1992. On the suggestion made by this Court, he also filed a petition on 11.11.1992 in O.P. No. 209 of 1992 for custody of the minor in the lower court. The respondents 1 and 2 have raised objections in the lower court regarding the maintainability of the petition for custody. If that contention is accepted by the lower court, the petitioner will not get any remedy before the lower court. Moreover, it is not the speedy remedy. Even if the petitioner succeeds, the respondents will go on appeal and thereby the petitioner will be prevented from getting custody of the minor during his lifetime. It is false that the petition was adjourned by the lower court at the request of the petitioner. The petitioner never took adjournment in the Lower court unnecessarily. Since the petition H.C.P. No. 477 off 1992 was pending, adjournment was taken in the lower court. The petitioner submits that the child will speak the truth as the incident happened on 7.4.1992 is only an accident unless the respondents 1 and 2 tutor the child in such manner. The petitioner has spent a huge amount to save his wife and the hospital records will clearly prove the same. Knowing this fact, the respondents have come forward with a false case. The petitioner suffered 30% burns and he is still going to the hospital for taking treatment. The statement regarding the suggestion made by this Court on the earlier occasion is true. It is true that the welfare of the child should be considered while ordering custody, But nothing has been said in the counter of the respondents 1 and 2 that such a welfare will be reduced if the custody of the minor is given to the petitioner since the petition for custody is pending in the civil court and the remedy open to the petitioner in this Court is always open to him. From the date of the marriage of the deceased, they had been living happily and it is false to say that the parents of the petitioner ill-treated the deceased making some demands. The petitioner is already in an affluent position. Therefore, there is no question of demanding anything from the side of the deceased. It is false that the deceased attempted to commit suicide about four years ago. The minor was living with the petitioner and only during holiday and occasionally the minor would visit the respondents 1 and 2. For the purpose of this, respondents have stated all sorts of false allegations. The petitioner also suffered more burn injuries and he was taken to the Hospital in a separate car. It is false to state that the deceased asked the respondents 1 and 2 to take away the minor child. For better treatment, the father and the petitioner took the petitioner and his wife to Kovai Medical Centre and it is false to say that from 7.4.1992, the minor has been living with the respondents 1 and 2 at Salem. On the other hand, the minor was in the custody of the parents of the petitioner. Only in May, 1992, the respondents 1 and 2 had taken away the minor forcibly without the consent and knowledge of the petitioner. The minor was studying in St. Mary's Montessori School, Mettur Dam which is the best school in that area, After kidnapping the minor, respondents 1 and 2 with an ulterior motive to achieve their illegal objects have been keeping the minor to prevent the petitioner from getting legal custody. It is false that the deceased made a request to the respondents to take away the minor from the petitioner. The minor is a very small child and she will act only according to the instructions given by the persons with whom she is now living and taking advantage of the custody respondents 1 and 2 are trying to make the child to have a bad impression against the petitioner and this will be only a temporary reaction. If the custody is given to the petitioner, he will bring up the child with utmost care and interest than the respondents 1 and 2. Respondents 1 and 2 cannot be the better guardians than the petitioner who is the father and natural guardian. It is also false that the petitioner never instructed respondents 1 and 2 to keep the child with them. The respondents have made contrary statements in their counter about the incident. Respondents 1 and 2 have stated in paras 16 and 18 in their counter that they got the information about the incident from the deceased. The respondents 1 and 2 came forward with a contrary version in para. 17 of the counter that they could not get information about the incident. Having slated that the respondents 1 and 2 obtained the information about the incident from the deceased, the reasons given in para. 20 of the counter to give a letter to the Police are unbelievable. No father would have given a letter to the police constable after hearing the alleged torture from the mouth of the deceased under any circumstances. There is no explanation in the counter affidavit as to why within three days they came with a different version. It is false that the petitioner has prevented the investigation by the police on the basis of the report of the petitioner about the kidnapping of the minor and the police have taken action. Since the respondents 1 and 2 have failed to handover the custody of the child to the petitioner, he has no other option excepting to approach the police and since the mediators could not get custody of the minor, the petitioner has moved this Court again for speedy remedy. As a legal guardian, he is entitled to the custody of the minor. The respondents cannot illegally detain the minor. It is false that there is an arrangement for the second marriage for the petitioner. The petitioner has put the minor in a better school. But making a false allegation, the first respondent has obtained transfer certificate from that school after kidnapping the minor girl. The respondents are trying to prevent the petitioner from getting custody of the child by raising false objections both in the civil court and also in this Court raising objections that this petition is not maintainable. It is false to state that the petitioner did not bother about the minor till 22.10.1992. The petitioner has been trying to get custody of the minor throughout through common respectable mediators and having failed in that sincere attempt, he has approached the Court and also the police for action. The petitioner will take care of the child and having all facilities, no one would consider the interest of the minor since no one can substitute the father. The petitioner denied the other allegations made by the respondents in their counter affidavit.
12. Learned Counsel for the petitioner Mr. K. Govindarajan, for Mr. K. Ramakrishna Reddy submitted that since the petitioner is the father and natural guardian of the minor, the petitioner is entitled to the custody of the minor in preference to the maternal grand parents of the minor. The other contention raised by him is that this is an efficacious and quick remedy and there is no bar for invoking the provisions under Article 226 of the Constitution of India, even though there is an alternative remedy available under the Guardian and Wards Act, and the petitioner has chosen to file this petition. In rebutting this contention, Mr. V. Shanmugham, learned Counsel for the respondents 1 and 2 contended that since the two original petitions are pending now before the learned Second Additional District Judge, Salem, it is an abuse of process of court by invoking the jurisdiction of this Court under Article 226 of the Constitution of India and further the lower court will have an opportunity of considering the oral and documentary evidence to be let in by both parties and that the proper course for custody of the minor is to await the decision of the civil court. According to him, there will not be any oral and documentary evidence for deciding the issue as to whether the second respondent will be the fit and proper person in preference to the petitioner even though he is the father and natural guardian for the minor considering the paramount interest and welfare of the minor. The second contention raised by the learned Counsel for the respondents 1 and 2 is that in view of the pendency of the two O.Ps. one filed by the father and the other filed by the respondents 1 and 2, the present petition for a writ of habeas corpus under Article 226 of the Constitution of India, is not maintainable. Mr. V. Shamugham, learned Counsel for the petitioner concedes that there is jurisdiction of this Court under Article 226 of the Constitution of Indian for a writ of habeas corpus for custody of the minor as now filed by the petitioner. But he pleaded since the original petitions are pending in the lower court, the present petition is not maintainable.
13. In support of the contentions raised by the petitioner, Mr. K. Govindarajan for Mr. K. Ramakrishna Reddy, learned Counsel for the petitioner relied upon several Judgments of this Court and also of the Supreme Court. He submitted that the petitioner being the father and natural guardian was not found unfit to be a guardian by any civil court and in such circumstances, the petitioner has got an indivisible right in preference to that of the respondents 1 and 2 who are maternal grand parents of the minor to have the custody of the child. The allegations made by the petitioner and similar allegations made by the respondents 1 and 2 against the petitioner in this proceedings are yet to be proved in a court of law and if any opinion is given by us in this proceedings, it will certainly affect the merits and demerits of the rival contentions of the parties. The case of the respondents 1 and 2 is that the deceased Uma Maheswari told the first respondent to take away the minor child from the custody of the petitioner. This allegation is not admitted by the petitioner to be true. One thing is clear that the minor is now in the custody of the respondents 1 and 2 against the wishes and consent of the petitioner and since the minor is in the custody of the respondents 1 and 2 anything now said by the minor against the petitioner cannot be taken to be true since as rightly contended by the learned Counsel for the petitioner, the minor being in the custody of the respondents, could have been tutored to say so against the petitioner. Therefore, there is no use of asking anything from the mouth of the minor.
14. In the decision S. Abboy Naidu v. R. Sundara Rajan A.I.R. 1989. Mad. 129: (1988)1 D.M.C. 516: (1988)2 Hind. L.R. 179, custody was sought for by the father under Section 26 of the Guardian and Wards Act. The father was acquitted of a criminal complaint as regards suspicious death of his wife, the mother of the minor child. The father sought for custody of the minor having possessed of sufficient means and having been assisted by his parents for looking after the minor. The maternal grand parents resisted that application. But they were old and not self dependent. This Court (K.M. Natarajan, J.) held that the father cannot be denied of the custody of the minor child merely because the revision is pending against his acquittal. The decision in Velan v. Muthu (1990)2 M.L.J. 417 and relied on by the learned Counsel for the petitioner was a case filed under Section 6 of Hindu Minority and Guardianship Act, 1956. In that case, the father sought for the custody of an unmarried Hindu minor girl. His right to have the custody of the child was upheld in spite of the fact that he married for the second time and that it cannot ordinarily stand in the way of his rights as father to have custody of the minor girl. The maternal grand parents of the minor girl claimed that they would look after the minor girl in a more affluent situation. This Court held that even though the maternal grand parents of the minor girl would look after the minor girl in a belter and more affluent circumstances, it is not a relevant factor that should weigh with the court to deny the legitimate parental right of the father to the guardianship and custody over the minor child. This Court further held in that case that the mere fact that the maternal grand parents are much attached to the minor itself, is not a ground to negative the claim of the father and in any event such custody cannot have any preference to the legitimate claim of the natural lather. In the decision Gohar Begam v. Suggi alias Nazma Begam (1960)1 S.C.R. 597 an unmarried Sunni Muslim mother of an illegitimate female child made an application under Section 491, Crl. P.C. for the recovery of the child from the respondents. The Supreme Court held that under the Mohammedan Law the mother of an illegitimate female infant child is entitled to its custody. The refusal to restore such a child to the custody of its mother would result in an illegal detention of the child within the meaning of Section 491, Crl.P.C. A dispute as to the paternity of the child is irrelevant for the purpose of the application. The Supreme Court will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised. Further it was held that before making the order for the custody of the child, the Court is called upon to consider its welfare and that the fact that a person has a remedy under the Guardian and Wards Act, is no justification for denying him the remedy under Section 491 of the Criminal Procedure Code. The Supreme Court also held that in issuing writs of habeas corpus, the Courts have power in the case of an infant to direct its custody to be placed with a certain person.
15. In the decision in Kamla Devi v. State A.I.R. 1987 H.P. 34, the Division Bench of the said High Court held as follows:
The writ of habeas corpus can be pressed into service for granting the custody of a child to the deserving spouse, The Primary object of a habeas corpus petition, as applied to infants, is to determine in whose custody the best interests of the child will probably be advanced. In a habeas corpus proceeding brought by one parent against the other for the custody for their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as Parens Patriao, has in promoting the best interests of the child. In such cases due weight must be given to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings.
This Division Bench of Himachal Pradesh High Court further held that a remedy under any special statute is distinct from the writ of habeas corpus. In other words, the employment of the writ of habeas corpus in child custody cases is not pursuant to, but independent of statute. In the decision in S. Rehan Patima v. Syed Badinuddin Pariviz A.I.R. 1984. A.P. 1, it was held that merely because, the petitioner, mother, has an alternative remedy for custody of minor under Guardians and Wards Act, her petition for habeas corpus under Article 226 cannot be dismissed on such technical ground in the interest of justice and in view of the welfare of the minor. The father and mother of the child aged about 31/ 2 years belonged to the Hanafi sect of Muslims. Their marriage was solemnised and dissolved according to the principles of Muslim Law applicable to their sect. The petitioner, mother of the child filed a writ petition for his custody. No neglect or indifference towards the child on the part of the mother at any stage has been alleged by the father and the court held that the mother was entitled to the custody of the minor in view of the principles of Muslim Law, notwithstanding the fact that she has been divorced by her husband and she would be given relief in petition for habeas corpus notwithstanding existence of alternative remedy under Guardianship and Wards Act. Reliance was also placed on the decision in Sam-path v. Govindammal (1951)2 M.L.J. 259: A.I.R. 1952. Mad. 98: I.L.R. 1952. Mad. 468:64. L.W. 737:1951 M.W.N. 705:1951 M.W.N. (Crl.) 209. A division Bench of this Court in the above decision in a proceeding initiated under Section 491, Crl. P.C. of Act V of 1898 and Section 25 of the Guardians and Wards Act held that it is not necessary that in every case that a husband seeks to recover the custody of his minor wife he should proceed by way of proceedings under Section 25 of the Guardians and Wards ACL He has also a remedy under Section 491, Crl. P.C. But it is in the nature of a summary proceeding and questions such as whether it would be for the welfare of the minor to restore the custody of the minor to the guardian and taking into account the Minor's wishes if of sufficient age and able to give an intelligent preference, could not be gone into thoroughly. Where a husband filed a petition under Section 491, Crl. P.C. for the custody of his wife aged about 17 years and the wife pleaded that she left her husband on account of the cruel treatment meted out to her by mother-in-law, The Division Bench held that it is a fit case for referring the petitioner to take proceedings under Section 25 of the Guardians and Wards Act.
16. Learned Counsel for the petitioner relied upon the decision Subbuswami Goundan v. Kamakshi Ammal (1929)57 M.L.J. 642. (D.B). The Division Bench held in that decision that where a person is entitled to a remedy under Section 491, Crl.P.C. the fact that he is also entitled to a remedy for the same relief under the Guardians and Wards Act which would be less expensive does not disentitle him from pursuing the former remedy. The Division Bench also held that a person who keeps a minor girl in his custody with her consent can be said to have illegally detained her, if another person who is better entitled in law to have the custody of that person as her husband desires to have that custody. In the decision Rama Iyer v. Nataraja Iyer (1948) M. W.N. (Crl.) 34, a Division Bench of this Court held that the fact that there is another remedy open to the father under the Guardians and Wards Act, is no bar to the application under Section 491, Crl. P.C. The Court also held that any act or conduct of the father renders him unfit for guardianship must be established and the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the father of his right and duty. The decision Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka A.I.R. 1982 S.C. 1276: (1982)2 S.C.C. 544, was a case where there was a dispute between the father and mother with respect to the custody of the minor aged about 11 years. It was found that there were bitter squabbles between the husband and wife. In such circumstances, the Supreme Court found that the custody of the girl should be kept only in a Boarding School where she could live normal healthy life and would have a good opportunity of proper education and healthy growth and in that view of the matter it was not necessary to go into the question of merits of the respective competence of either of the parents. The Supreme Court also found on the facts and circumstances of that case that there was no necessity to interview the minor daughter as the minor was not fit to form an intelligent preference which might be taken into consideration in deciding her welfare. In the decision in Shaik Moidin v. Kunhadevi A.I.R. 1929 Mad. 33 (F.B.) the father a motor-driver applied for a habeas corpus under Section 491, Crl. P.C. to get custody of his son aged about 7 or 8. Nobody was in his house to look after such child and in the said circumstances, the full bench held that what a court has to look to in application under habeas corpus is the interest or me child as being paramount. The Full Bench also held that the High Court should not interfere and the proper course for the father would be to set the Court in motion locally under Section 25 of Guardians and Wards Act where the evidence would be much more easily obtainable and where the witnesses could be seen and if necessary cross-examined under Section 25 of the Guardian and Wards Act. In that view, the full bench dismissed the petition under Section 491, Crl.P.C. for a writ of habeas corpus.
17. The decision in Veena Kapoor v. Varinder Kumar Kapoor (1981)3 S.C.C. 92, is a case where the father filed a case for custody of his minor daughter as against his wife as both of them are not living together. The minor was about 1 1/2 years and it was in the custody of the wife. The father filed a habeas corpus petition in the High Court of Punjab and Haryana asking for the custody of the child alleging that the child was in illegal custody of the wife. The petition having been dismissed by the learned single Judge of Punjab & Haryana High Court, the petitioner filed special leave appeal before the Supreme Court. The Supreme Court observed that it is well settled that in matters concerning the custody of the minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to be illegal. The Supreme Court after setting aside the order of the learned single Judge of the High Court directed the learned District Judge to make a report to the Supreme Court. The Supreme Court directed the District Judge to receive evidence on the question in issue and submit a report to the Supreme Court as stated above. The decision in Kirtikumar Maheshankar Joshi v. Pradipkumar Karuna Shanker Joshi A.I.R. 1992 S.C. 1447: (1992)3 S.C.C. 873 is a case where the father of the minor children filed a petition under Section 12 of Guardians and Wards Act for their custody. The father was facing charge under Section 498-A, I.P.C. and the children were not willing to live with the father and the children narrated various episodes showing ill-treatment of their mother at the hands of their father. The children were also happy with their maternal uncle. In the circumstances, the Supreme Court observed that in the interest and welfare of the minor children they were not inclined to hand over their custody to their father though he had preferential right to custody. In the decision Dr. Sultan Akbarsha, K.M.R. v. Sultansofia Begum (1982) L.W. (Crl.) 139, a Division Bench of this Court held that the argument that the petitioner has an alternative remedy under the Guardians and Wards Act and that the writ petition is not at all maintainable is not a tenable contention. But at the same time, it must be noted that the writ jurisdiction of the court should not be exercised in such a manner as to bypass the normal remedy available to the petitioner under the civil law. That is a case where the mother of the child obtained an order for the custody of the minor as against the father under the Guardians and Wards Act (Parties being Mohammedans). After divorce, both the parents subsequently married to different spouse. A petition was filed for habeas corpus by the father against his former wife for custody of his child alleging that by reason of remarriage she has become disentitled to have custody of the child and that as per the Mohammedan Law, a mother is en titled to the custody of a male child only till his completion of seven years of age and even that right will stand, forfeited if she married a second husband. Subsequent to the filing of the writ petition, the mother filed a petition in the District Court under Section 10 of the Guardian and Wards Act praying that she may be appointed Guardian for the minor child. In the case, the Division Bench held that the exercise of writ jurisdiction in matters relating to custody of minors should be restricted only to those cases where the expediency of the situation warrants such exercise of powers. Inasmuch as the mother has already filed a petition under the Guardians and Wards Act, the petitioner may put forth his claim in those proceedings for obtaining the minor's custody and seek appropriate reliefs. In that case the Division Bench held further that the court would be in a position to know as to who would be the proper person with whom the custody of the minor should been trusted and that could be found only after the evidence is recorded. In the circumstances, the Division Bench held that the civil court exercising its powers under Guardians and Wards Act is more suited than the High Court exercising writ jurisdiction.
18. In the decision in Venkatrama Ayyangar v. Thulasi Ammal (1949)2 M.L.J. 802: A.I.R. 1950 Mad. 320: 1949 M.W.N. 829: 63. L.W. 31, this Court held in a case filed under Section 25 of the Guardians and Wards Act by the mother to recover her daughter from the minor's paternal aunt's husband. The Court held that the refusal by a person to deliver the child to its natural guardian when asked to do so by the latter amounts in effect to a removal from his custody and the natural guardian can therefore apply under Section 25 of the Guardians and Wards Act. The Court also held that the mother is entitled to apply for recovery of custody of her minor daughter from her paternal aunt's husband. The preference expressed by a child of 13 of 14 is not entitled to much or any weight at all, especially where the minor's attitude is not a natural, bona fide and intelligent one.
19. After considering the ratio decided in the abovesaid decisions and after hearing the rival contentions of the learned Counsel for both parties, we are of the opinion that the pendency of the original petitions filed by both the parties before the Lower court is not a bar for seeking remedy under Article 226 of the Constitution. We are also of the view that since the minor is aged about six years and since the father has no disqualification or being made unfit to be a natural guardian of the minor daughter and since the father being in affluent situation and is also having his parents to look after the minor child, it is judicious to leave the child in the custody of the father, after considering the welfare and paramount interest of the minor girl. The pendency of any criminal complaint as against the father at the instance of the first respondent will not be a disqualification for the natural father having custody of his minor daughter. In all the decisions cited at the Bar by the learned Counsel appearing for both parties, the welfare and paramount interest of minors alone are considered in deciding the issue in question.
20. After considering the rival contentions of both parties as set out by them in their pleadings and the catena of cases cited by them, we hold that the minor child has to be entrusted with the father, the petitioner herein. In the circumstances, the respondents 1 and 2 are directed to hand over the minor child to the petitioner.
21. In the result, this petition is allowed. In the circumstances, there is no order as to costs.
Venkataswami and Swamiditrai, JJ.
22. This order is subject to the result of the two original petitions which are pending before the learned District Judge, Salem. The learned District Judge is directed to dispose of the two original petitions within a period of three months from the date of receipt of a copy of this order. It is made clear that any observations made in this order will not influence the learned District Judge in disposing of the two original petitions.