Tag Archives: habeas corpus

don’t file Habeas Corpus for child custody !! Madras HC

“…. Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance…..”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 25/01/2006

Coram

The Hon’ble Mr. Justice P.SATHASIVAM
and
The Hon’ble Mr. Justice N.PAUL VASANTHAKUMAR

Habeas Corpus Petition No.40 of 2006

R.Suresh Kumar             … Petitioner

-Vs-

  1. K.A.Kalavathi
  2. K.M.Arumugham

  3. The Inspector of Police,
    Kolathur Police Station,
    Kolathur, Chennai-99.            … Respondent

Petition under Article 226 of the Constitution of India for the issuance of writ of habeas corpus to direct the first respondent to produce bodily the petitioner’s male child by name Siddarth, aged about 4 = years, in the court and hand over the said chi ld to the custody of the petitioner.

!For petitioner     : O.R.Abul Kalam.

For Respondents    : Mr.M.K.Subramanian, Government Advocate.
O R D E R

(Order of the Court was made by P.SATHASIVAM, J.) The petitioner by name R.Suresh Kumar has filed this petition seeking for a direction to the first respondent K.A.Kalavathi, who is none else than his wife, to produce his male child by name Siddarth, aged about 4 = years, in the Court and for furth irection to hand over the child to his custody.

  1. In the affidavit filed in support of the above petition, the petitioner has stated that the first respondent is his wife and the second respondent is his father-in-law. The petitioner married the first respondent five years ago and he was blesse rough the first respondent with one male child by name Siddarth, now aged 4 = years, studying in Kinder Garden class, Don Bosco Matriculation School, Madras. They also have a female child by name Mathumitha, aged about 2 = years. According to the pet itioner, on 08.11.2005, the first respondent left the house of the petitioner along with the male child without any intimation. There is no dispute that the petitioner has not made any complaint against anyone including the third respondent.
  • Learned counsel for the petitioner, by drawing our attention to Section-6 of the Hindu Minority and Guardianship Act, 1956, vehemently contended that inasmuch the petitioner being father/natural guardian of the minor, he is entitled to the custod the child and that this Court can issue suitable direction to the first respondent for handing over the minor in favour of the petitioner. In support of the above contention, he relied on a decision of this Court reported in AIR 1984 Madras 186 (Suresh Babu v. Madhu) and also a decision of the Kerala High Court in Vasudevan vs. Viswalakshmi (AIR 1959 Kerala 403).

  • Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance. Inasmuch as even according to the petitioner, the child, aged about 4 = years, is with the first respondent, who is none else than the mother of the child, we are of the view that the claim of the petitioner cannot be gone into by this court in this petition. It is made clear that the petitioner is free to approach the appropriate forum to vindicate his grievance.

  • With the above observation, the Habeas Corpus Petition is dismissed.

  • JI.

    To The Inspector of Police, Kolathur Police Station, Kolathur, Chennai-99.

    habeas corpus dismissed in Child custody, though current guardian accused of mental disorders !!

    The father, an advocate on record, tries to accused the mother of various mental disorders and files habeas corpus to get back his child. his habeas corpus is dismissed !!

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    Supreme Court of India

    Rajesh K. Gupta vs Ram Gopal Agarwala And Others on 28 April, 2005

    Author: G Mathur

    Bench: Cji R.C. Lahoti, G. P. Mathur

    CASE NO.:
    Appeal (crl.)  633 of 2005

    PETITIONER:
    Rajesh K. Gupta

    RESPONDENT:
    Ram Gopal Agarwala and others

    DATE OF JUDGMENT: 28/04/2005

    BENCH:
    CJI R.C. Lahoti & G. P. Mathur

    JUDGMENT:

    J U D G M E N T (Arising out of S.L.P. (Criminal) No. 1471 of 2005) G.P. Mathur, J.

    Leave granted.

    1. This appeal by special leave has been preferred against the judgment and order dated 10.3.2005 of Delhi High Court by which the habeas corpus petition filed by the appellant was disposed of with certain directions.

    2. The appellant Rajesh Kumar Gupta is an Advocate-on-Record and is practicing in the Supreme Court of India since 1996. His marriage with Smt. Aruna Gupta daughter of Shri Ram Gopal Agarwala (respondent No. 1 herein) took place on 24.8.1997 and a daughter Rose Mala was born out of the wedlock on 5.6.2003. It appears that some differences have arisen between the appellant and his wife Smt. Aruna Gupta and currently she is living along with her parents, who have also been arrayed as respondent Nos. 1 and 2 in the special leave petition. The dispute here is about the custody of the child Rose Mala, who is with her mother. The appellant filed a habeas corpus petition in the Delhi High Court seeking the custody of his daughter Rose Mala mainly on the ground that she had been abducted by respondent Nos. 1 and 2 on 6.3.2005 and that on account of mental ailment with which his wife was suffering, the custody of the child should be given to him.

    3. After hearing learned counsel for both the parties the High Court disposed of the petition on 10.3.2005 and the relevant portion of the order reads as under: – “Mr. R.K. Jain, Sr. Advocate, appearing for the parents and the wife submits that Mrs. Aruna Gupta is ready and willing to give an undertaking to this Court that she would not leave the jurisdiction of this Court until an appropriate order in that regard is passed by the competent Court. We accept the said undertaking which is given to us. On query to Mrs. Aruna Gupta, she has categorically stated that she would like to stay with her parents and would like to retain the custody of the child and that she is not in a position to leave the child. Considering the facts and circumstances of the case and also upon hearing the counsel for the parties and also on talking to Mrs. Aruna Gupta and upon seeing and observing the child who is found to be in good and perfect condition, we are satisfied that the mother of the child, Mrs. Aruna Gupta, could continue to retain the custody of the child for the present. Ordered accordingly. It shall, however, be open to the petitioner to seek remedy for establishing his right of guardianship in accordance with law which is available to him in the Civil Court. If and when such a remedy is resorted to by the petitioner by filing a petition, the same shall be considered by the appropriate Court in accordance with law. The order passed today giving custody of the child to the mother shall be subject to the order, if any, passed by the civil court. Till then, the custody of the child shall remain with the mother, namely, Mrs. Aruna Gupta. In terms of the aforesaid order this petition stands disposed off.”

    4. Shri Gopal Subramanium, learned senior counsel for the appellant, has submitted that the marriage of the appellant with Smt. Aruna Gupta was an arranged marriage, which took place on the basis of an advertisement in the newspaper. After marriage it was revealed that Smt. Aruna Gupta was suffering from serious mental disorder of paranoid schizophrenia for almost two decades. She had been treated in U.S.A. for her illness as at the relevant time her father Shri Ram Gopal Agarwala was working there. After the marriage when the appellant discovered that she was suffering from mental ailment, she was treated in the All India Institute of Medical Sciences. In this connection learned counsel has drawn the attention of the court to the medical reports prepared in several hospitals where Smt. Aruna Gupta had been admitted and had been given treatment for the disease paranoid schizophrenia with which she has been suffering. Learned counsel has further submitted that life and health of baby girl Rose Mala would not be safe, if she is allowed to remain in the custody of the mother. He further submitted that the mother of the appellant will be living with him and she will be able to look after the child.

    5. Shri R.K. Jain, learned senior counsel appearing for the respondent Nos. 1 to 3, controverted the submissions made by the learned counsel for the appellant and has submitted that Smt. Aruna Gupta is in perfect health and is not suffering from any mental ailment. He has further submitted that the baby girl Rose Mala is being well looked after. She is in fine condition and the apprehension of the appellant that she would not get proper care from her mother has no basis.

    6. It is well settled that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties [see Dr. (Mrs.) Veena Kapoor vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin vs. Dr. Rukhsana and others (2001) 5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.

    7. The medical reports of Smt. Aruna Gupta regarding her treatment in some hospitals in U.S.A. are mostly of the year 1984 and the doctor of Holy Cross Hospital, U.S.A. recorded his assessment as under: – “Borderline personality disorder with no obvious medical problems on examination or in the laboratory. PLAN: No further medical intervention is necessary.” The medical reports of All India Institute of Medical Sciences, which are of the year 2000, do not show that she has been suffering from any such mental ailment, which may be termed as serious. In fact, according to the appellant himself Smt. Aruna Gupta is a case of paranoid schizophrenia and not any kind of serious mental ailment.

    8. It is important to note that the appellant is in the profession of law being an Advocate-on-Record in the Supreme Court. A lawyer’s profession is very exacting and busy profession and requires lot of time. The appellant has submitted that his mother will come and stay with him, who will look after the child. It is admitted that currently Smt. Aruna Gupta is living with her parents. Her father Shri Ram Gopal Agarwala did his Doctorate in Econometrics from Manchester University, U.K. in the year 1966 and joined the World Bank in 1971 where he held very senior positions. He is, therefore, a well-educated and financially sound person who can look after the needs of his daughter and also the granddaughter. The mother of Smt. Aruna Gupta, namely, Smt. Bimala Agarwala, aged about 60 years, is also there to look after the child if an occasion arises. The learned judges of the High Court before whom Smt. Aruna Gupta appeared along with Rose Mala and had also talked to her, have recorded that the child was in good and perfect condition and Smt. Aruna Gupta could be allowed to retain her custody. Having given our careful consideration to the submissions made by the learned counsel for the parties and to the material placed before us, we do not find any ground to take a contrary view and disturb the present custody of Rose Mala and give her in the custody of the appellant.

    9. The appeal, therefore, lacks merit and is dismissed.

    Real MEN, Manginas, Feminists and MEN who file #fakeDV, #FakeDowry against MEN

    In India, many fathers think their daughters are THEIR PROPERTY

    The daughter has to eaty, study, dress and even marry according to the whims and fancies of the dad / or mum

    That’s probably ok when the daughter is a kid, but NO longer OK when the daughter is 18 or 20 years old

    In such cases, IF the daughter marries or lives with another guy which is NOT to the like of the dad, the father files #FalseRape #FaleAbduction etc cases on such lovers

    Many such women are forcibly brought back and married off to some other innocent boy, making everyone’s life a living hell

    Many #fakeDowry and #fakeDV cases have their origins in such #failedLove stories

    Here is ONE such attempt by a dad, where luckily the girl stands her ground and sticks to her lover !!

    Please note that I am NOT justifying either love marriages or arranged marriages, but just stating how the legal machinery is misused and fale cases filed when the fault lies with the daughter and probably in parenting !!!

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    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    PRESENT:

    THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
    &
    THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937

    WP(Crl.).No. 508 of 2015 (S)

    PETITIONER(S):

    SAJU JOHN, AGED 48 YEARS,
    S/O.BABY JOHN, ANJENY HOUSE, ELIKKATTOOR P.O.,
    PIRAVANTHOOR, KOLLAM – 689 696.

    BY ADV. SMT.P.MAMATHA

    RESPONDENT(S):

    1. STATE POLICE CHIEF/DIRECTOR GENERAL OF POLICE,
      POLICE HEAD QUARTERS, THIRUVANANTHAPURAM -695001.
    2. THE DISTRICT POLICE CHIEF,
      KOLLAM -691 001.

    3. THE STATION HOUSE OFFICER,
      PATHANAPURAM POLICE STATION,
      KOLLAM DISTRICT -689 695.

    4. SHAMSUDHEEN,
      AGED 42 YEARS, S/O.KADER, PUZHAMKARA ILLATHIL,
      CHALINGAD P.O., IRINJALAKUDA,
      THRISSUR DISTRICT – 680 681.

    *ADDL.R5 ANJU S. SAJU,
    AGED 18 YEARS 8 MONTHS,
    D/O. SAJU JOHN,
    ANJENY,ELIKATTOOR P.O.,
    PIRAVANTHUR, KOLLAM – PIN 689 696.

    *IS IMPLEADED AS ADDL.R5 AS PER THE ORDER IN I.A.NO.18382/2015 DATED
    19.01.2016.

    R1 TO R3 BY SENIOR GOVERNMENT PLEADER, SRI. SHIBU JOSEPH
    R1 TO R3 BY ADDL. DIRECTOR GENERAL OF PROSECUTION,
    SRI. TOM JOSE PADINJAREKKARA
    R4 & ADDL.R5 BY ADV. SRI.P.K.IBRAHIM
    R4 & ADDL.R5BY ADV. SMT.K.P.AMBIKA
    R4 & ADDL.R5 BY ADV. SMT.A.A.SHIBI
    R4 & ADDL.R5 BY ADV. SRI.A.L.NAVANEETH KRISHNAN            .

    THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19-01-2016,
    THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

    WP(Crl.).No. 508 of 2015 (S)

    APPENDIX

    PETITIONER’S EXHIBITS:

    EXHIBIT P1:           A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 08.01.2016
    ISSUED BY DR. S.MUHAMMED FAIZAL TO KUMARI ANJU S. SAJU.

    EXHIBIT P2(A):        A TRUE COPY OF THE MEDICAL BILLS, DATED 14.08.2014 ISSUED
    BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
    KUMARI ANJU S. SAJU.

    EXHIBIT P2(B):        A TRUE COPY OF THE MEDICAL BILLS, DATED 14.08.2014 ISSUED
    BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
    KUMARI ANJU S. SAJU.

    EXHIBIT P2(C):        A TRUE COPY OF THE MEDICAL BILLS DATED 14.08.2014 ISSUED
    BY THE LITTLE FLOWER HOSPITAL, PUNALUR IN THE NAME OF
    KUMARI ANJU S. SAJU.

    EXHIBIT P3:           A TRUE COPY OF THE MEDICAL REPORT DATED 20.08.2014 ISSUED
    BY DR. D. PRABHASH IN THE NAME OF KUMARI ANJU S. SAJU.

    EXHIBIT P4:           A TRUE COPY OF THE DONATION RECEIPT DATED 06.07.2015,
    ISSUED BY THE S.N. COLLEGE, PUNALUR TO KUM. ANJU S. SAJU.

    EXHIBIT P5:            A TRUE COPY OF THE BIRTH CERTIFICATE OF KUM. ANJU S. SAJU
    ISSUED BY THE REGISTRAR OF BIRTHS & DEATHS, PUNALUR
    MUNICIPALITY.

    EXHIBIT P6:           A TRUE COPY OF THE CERTIFICATE (AISSCE-2015) ISSUED BY THE
    INSTITUTION IN THE NAME OF KUM. ANJU S. SAJU.

    RESPONDENTS’ ANNEXURES:

    ANNEXURE A1:          TRUE COPY OF THE PETITION DATED 10.12.2015 SENT BY
    REGISTERED POST TO STATE DIRECTOR GENERAL OF POLICE
    WITH COPY TO DISTRICT POLICE CHIEF,THRISSUR.

    ANNEXURE A2:          TRUE COPY OF THE LETTER DT. 16.12.2015 ADDRESSED TO HE
    MARRIAGE OFFICER, MATHILAKAM ENCLOSING NOTICE OF
    INTENDED MARRIAGE.

    //TRUE COPY//

    P.S. TO JUDGE

    St/-

    C.K. ABDUL REHIM
    &

    SHAJI P. CHALY, JJ.

    W.P. (Crl.) No.508 of 2015

    Dated this the 19th day of January, 2016

    JUDGMENT

    Shaji P. Chaly, J.

    This writ of habeas corpus is filed by the petitioner who is the father of one Anju S. Saju, aged 18 years, seeking production of the said detenue and set her at liberty alleging that she is under the forcible and illegal custody of the 4th Respondent.

    1. When the case came up for admission, this Court issued notice to the 4th Respondent and directed to produce the alleged detenue before this Court, if she is available in his custody. The 3rd Respondent was directed to intensify the investigation of the case registered with respect to the missing of the alleged detenue and also directed to ensure that the alleged detenue is produced before this Court.
  • When the case was again taken up on 21.12.2015, the Respondent entered appearance through counsel and had filed an Interlocutory Application seeking impleadment of the alleged detenue. In the affidavit filed along with the I.A., it was stated that the alleged detenue is in acquaintance with the 4th Respondent since December 2014 onwards and she is determined of marrying him. According to her, she had left her parental house along with the 4th Respondent on 07.12.2015 and was staying along with him at different places and she expressed her disinclination to go to her parental house along with the petitioner.

  • It was also stated in the affidavit that the ‘notice of intended marriage’ has already been submitted to the Marriage Officer, Mathilakam and the requisite fee was remitted through money order sent on 16.12.2015. The learned counsel appearing for the 4th Respondent had produced for our perusal a copy of the acknowledgement with respect to receipt of money by the Marriage Officer on 17.12.2015. Since there is no valid marriage, even though the alleged detenue expressed her inclination to go along with 4th Respondent, this Court did not permit her to do so and thereupon we directed the 3rd Respondent to admit the alleged detenue at S.N.V. Sadanam Hostel, Ernakulam South and further directed the alleged detenue to be produced before this Court on 15.01.2016.

  • On 15.01.2016, we interacted with the alleged detenue and she reiterated her strong determination to solemnize marriage with 4th Respondent based on the ‘notice of intended marriage’ already submitted on 17.12.2015. We interacted with the alleged detenue on that day also with regard to the statements and allegations contained in I.A.No.594 of 2016 and we were satisfied that since the alleged detenue has attained majority and she was not under any forcible or illegal custody, she can be permitted to go along with 4th Respondent after the marriage in accordance with the notice given for the intended marriage. Thereupon, the alleged detenue was directed to be re-admitted in the Hostel with a rider that she be permitted to appear before the Marriage Officer, Mathilakam on 18.01.2016 and the case was posted today.

  • Today when the case was taken up, the marriage certificate issued by the Marriage Officer, Mathilakam dated 18.01.2016 is produced before us, and it is evident from the said certificate that the alleged detenue entered into marriage with 4th Respondent under the Special Marriage Act and therefore we are convinced that the alleged detenue and the 4th Respondent have entered into the marital bond in accordance with law.

  • In the circumstances, we are inclined to think that the alleged detenue is not under the forcible or illegal custody of the 4th Respondent and she is set at liberty to go along with the 4th Respondent.

  • The writ petition accordingly fails and the same is dismissed.

    Sd/-

    C.K. ABDUL REHIM JUDGE Sd/-

    SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-

    19.01.2016