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2010 DIGILAW 4100 (MAD)

J. Vijay v. The Inspector of Police

2010-09-13

M.CHOCKALINGAM, M.SATHYANARAYANAN

body2010
Judgment :- M. CHOCKALINGAM, J. 1. Invoking the writ jurisdiction of this Court, one Vijay has brought forth this petition seeking the production of his 18 months old child Dhakshan by the respondents 2 to 8 before the Court. 2. The Court heard the learned Counsel for the petitioner. The respondents 2, 3 and 8 were served with notice, but not replied. As regards the respondents 4 to 7, notice returned unclaimed. The Court also heard the learned Additional Public Prosecutor for the first respondent State. 3. 2. The Court heard the learned Counsel for the petitioner. The respondents 2, 3 and 8 were served with notice, but not replied. As regards the respondents 4 to 7, notice returned unclaimed. The Court also heard the learned Additional Public Prosecutor for the first respondent State. 3. The case of the petitioner as could be seen from the averments made in the affidavit and also the submissions made by the learned Counsel for the petitioner, is that the petitioner married the daughter of the respondents 2 and 3 on 28.5.2007; that as a result of the wedlock, a child was born on 12.10.2008; that after the birth of the child, while she was found in a frustrated mood, the same was informed to the respondents 2 and 3, the father-in-law and mother-in-law respectively, and also others namely the respondents 4 and 5, the brothers, the 6th respondent, the sister of the second respondent, the 7th respondent, the junior maternal aunt of the deceased, and the 8th respondent, the elder sister of the deceased; that thereafter, she was taken for treatment; that he was informed by the hospital authorities that she was suffering from mood disorder; that due the same, she hanged herself with the help of a saree on 10.1.2010; that this fact was well known to the respondents 2 to 8; that despite the same, on the complaint given by the second respondent, a case was registered in Crime No.5 of 2010 by the first respondent police under Sections 498-A and 304-B of IPC; that the petitioner got anticipatory bail in Crl.O.P.No.1725 of 2010 before this Court on 28.1.2010; that the child was actually in his custody; that while the matter stood thus, it was represented by the in-laws that they have got some special poojas to be performed for which the child was required; that believing the said representation, the custody of the 18 months old child was handed over to them; that thereafter, they did not return the child; that whenever he contacted, they gave evasive reply and refused to hand over the child; that under the circumstances, a complaint was given to the police on 20.7.2010; that it was actually forwarded to the first respondent, but no steps have yet been taken, and hence this petition is brought forth. 4. 4. In answer to the above, it is contended by the learned Additional Public Prosecutor for the State that on the complaint given by the second respondent, a case was registered in Crime No.5 of 2010 under Sections 498-A and 304-B of IPC wherein the petitioner and his parents were shown as accused; that the petitioner has got anticipatory bail; that now the investigation is on; that apart from that, the child is actually in the custody of the respondents 2 and 3 who are the parents of the deceased-wife, and under the circumstances, the petition has got to be dismissed since the matter is pending investigation. 5. The learned Counsel for the petitioner in order to fortify the contention seeking custody of the child who is 18 months old, relied on a decision of the Division Bench of this Court made in H.C.P.No.674 of 2003 on 23.7.2003, and the subsequent decision made by the Apex Court in Special Leave to Appeal (Crl.) No.3729 of 2003 on 12.9.2003. He would add that in the instant case, the petitioner is the only natural guardian since he is the father, and under the circumstances, there cannot be any impediment for directing the respondents 2 to 8 to hand over the custody of the child to the petitioner father. 6. After hearing the learned Counsel on either side and looking into the factual position, this Court is of the considered opinion that the petition has got to be dismissed for two reasons. Firstly, the petitioner has sought for custody of the minor child. His wife is no more, and she died by hanging herself on 10.1.2010. Now, actually the matter is pertaining to the custody of a minor child, and the H.C.P. is not meant for that. 7. Secondly, the decisions cited by the learned Counsel for the petitioner cannot be applied to the present factual position. As could be seen from the above decision of the Division Bench, the wife died accidentally, and the husband was alive, and hence there was no impediment for handing over the child to the husband who was the natural guardian since the custody of the child was with the in-laws. But, in the case on hand, it is not the position. But, in the case on hand, it is not the position. Here is a case where the case has actually been registered under Sections 498-A and 304-B of IPC in Crime No.5 of 2010, and there is an accusation against him that he was the cause for her death. Now, the investigation is on. In such circumstances, this Court is of the considered opinion that it is not a fit case where the custody of the child could be directed to be handed over to the petitioner herein, and the petition has got to be dismissed. 8. Accordingly, this petition is dismissed.