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2011 DIGILAW 1422 (MAD)

K. Suganya v. Superintendent of Police

2011-03-14

C.NAGAPPAN, P.R.SHIVAKUMAR

body2011
Judgment :- P.R.SHIVAKUMAR, J. 1. The petitioner is the mother of a 2 years old female child Nandhini, who is admittedly in the custody of her father, namely the fourth respondent herein. The fourth respondent is employed in Abu Dhabi and after his marriage with the petitioner, both of them set up their marital home in Abu Dhabi. They were gifted with the birth of the above said girl child Nandhini. After a couple of years from the date of birth of the child Nandhini, there arose difference of opinion between the husband and wife, pursuant to which the petitioner alone came back to India and lodged a complaint with the Inspector of Police, S.14 Peerkankaranai Police Station alleging cruelty demanding dowry. In the said complaint, she had also asked for the recovery of the custody of the said child from her husband. The police assigned C.S.R.No.348/2010 and conducted an enquiry and after enquiry, they did not take effective steps to get the custody of the child transferred to the petitioner. The petitioner also took steps through the Indian Embassy in Abu Dhabi, which also failed to yield the result desired by the petitioner, namely retrieval of the custody of the child, since after enquiry for which the fourth respondent appeared with the child, the Indian Embassy in Abu Dhabi did not find fault with the fourth respondent and allowed him to continue to be there in Abu Dhabi along with the child. Thereafter, the petitioner has chosen to approach this court by way of the present Habeas Corpus Petition seeking the issuance of a writ of Habeas Corpus for the production of the child and entrustment of the custody of the child to her. 2. The learned counsel for the petitioner has argued with vehemence that a child aged about 2 years is very much in need of the nursing and fostering of the mother and the 4th respondent, though happened to be the father of the child, is denying such a right of the child to have the nursing of the mother; that the same alone shall be the ground on which this court has to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to direct the production of the child and consequent entrustment of the custody of the child to the petitioner. The learned counsel for the petitioner has contended further that in case of custody of minor children, the paramount consideration is not whether the present custody of the concerned child is lawful or illegal and on the other hand, the welfare of the child should be the paramount consideration in making a decision as to in whose custody the child should be left. 3. In support of his contention, the learned counsel for the petitioner relied on the following judgments: i) Rajesh K.Gupta vs. Ram Gopal Agarwal and Others reported in (2005) 5 Supreme Court Cases 359; and ii)Dr.Mrs.Veena Kapoor vs. Varinder Kumar Kapoor reported in AIR 1982 SC 792 . 4. The 5th respondent, namely the father of the 4th respondent has filed a counter affidavit on his behalf and also on behalf of the 4th respondent. The petitioner has also put in a reply affidavit. We have perused the averments made a) in the affidavit of the petitioner, b) in the counter affidavit of the 5th respondent and c) in the reply affidavit of the petitioner and the other materials placed before us for our consideration. The submissions made by Ms.N.J.Beulah John Selvaraj, learned counsel for the 4th and 5th respondents and by Mr.A.D.Jagadishchandra, learned Additional Public Prosecutor representing the respondents 1 and 2 were also heard and taken into consideration. 5. In fact, the respondents 1 to 3 do not have any personal interest and they are not interested in the outcome of the case, which is a dispute between wife and husband regarding the custody of their minor child, as the child is admittedly in a foreign country, namely Abu Dhabi, in the custody of the 4th respondent, the father of the child. 6. The main contention of the petitioner is that while she was living along with her husband, namely the 4th respondent and her child in Abu Dhabi, she was harassed and treated with cruelty demanding dowry. 6. The main contention of the petitioner is that while she was living along with her husband, namely the 4th respondent and her child in Abu Dhabi, she was harassed and treated with cruelty demanding dowry. It is also her further contention that on the failure of the petitioner and her parents to meet the demands of the 4th and 5th respondents for more dowry, she was driven away from Abu Dhabi by the 4th respondent and taking advantage of their abode in a foreign country, namely Abu Dhabi, the 4th respondent was able to take the custody of the child by simply driving the petitioner out of their matrimonial home in Abu Dhabi. It is obvious from the affidavit of the petitioner that she herself left Abu Dhabi, leaving the child with the 4th respondent, fearing harm to her in the hands of the 4th respondent and she arrived at Chennai on 30.08.2010. It is also obvious that on 29.09.2010, the 4th respondent came to India with the child. According to the petitioner's contention, there was a move for conciliation during the said visit, in which the 4th and 5th respondents demanded Rs.10.00 Lakhs as additional dowry to get the petitioner and the 4th respondent united and though the father of the petitioner pleaded for some time to muster the huge amount demanded as additional dowry, the 4th respondent escaped from the room breaking open the window and left for Abu Dhabi. 7. Per contra, it is the contention of the 4th and 5th respondents that, due to some difference of opinion, the petitioner voluntarily came back to India deserting the child as well as her husband and immediately on her arrival in India, she preferred a criminal complaint alleging dowry demand and harassment; that the police, on being satisfied with the explanation offered by the 5th respondent, did not take action desired by the petitioner and that even the enquiry conducted in the Indian Embassy at Abu Dhabi, where the 4th respondent appeared with the child, resulted in giving a clean chit to the 4th respondent and he was allowed to continue to reside in Abu Dhabi with the child. It is the further contention of the respondents 4 and 5 that only with the hope of having a reconciliation on the invitation of the 5th respondent, the 4th respondent came to India on 29.09.2010 along with the child; that though the proposed arrival of the 4th respondent with the child was informed to the petitioner and her parents, no one on their side was present in the Airport to receive them; that on the other hand, after the 4th respondent and the child reached the residence of the 5th respondent, some 25 rowdy elements came in a Tata Sumo and a mini bus with dangerous weapons and made attempts to assault the 4th respondent, 5th respondent, wife of the 5th respondent and even the child, as a result of which the 4th respondent had to retire to his room and bolted the door from inside and then escaped from the said room by leaving through the back door of the said room. 8. Of course it is true that the above said allegations made in the counter affidavit by the 5th respondent on his behalf and on behalf of the 4th respondent are denied and disputed by the petitioner in the reply affidavit filed by her. However, the learned counsel for the respondents 4 and 5 would contend that the dispute being a family dispute between wife and husband and also involving the father-in-law of the petitioner regarding the custody of the child, the writ proceedings shall not be the appropriate proceedings in which the question of the custody of the child can be decided and that the forum for seeking the relief shall be the civil court/family court. The learned counsel has pointed out the fact that even in the judgments relied on by the learned counsel for the petitioner in support of his contention that the question of custody of the minor child can be considered in a Habeas Corpus Petition, the ultimate result happened to be that the custody of the concerned child with one of the parents was not disturbed and the parties were directed to work out their remedy before the civil forum. 9. 9. The judgment of the Hon'ble Supreme Court cited by the learned counsel for the petitioner, namely Rajesh K.Gupta vs. Ram Gopal Agarwal and Others reported in (2005) 5 Supreme Court Cases 359 was, no doubt, pronounced in an appeal filed against a writ of habeas corpus petition seeking issuance of a writ of habeas corpus. In that case, the prayer was declined by the High Court and on appeal, the Supreme Court confirmed the order. Paragraph 7 of the said judgment states the law in this regard, which is extracted here under:- "7. 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." 10. In fact in Dr.Mrs.Veena Kapoor vs. Varinder KumarKapoor reported in AIR 1982 SC 792 , the writ petition filed before the High Court was dismissed by the High Court holding that the custody of the child with the respondent therein would not be said to be illegal. When the said order was challenged before the Hon'ble Supreme Court, a 3-Judge bench of the Hon'ble Supreme Court, headed by the then Hon'ble Chief Justice of India, held that the legality or otherwise of the custody would not be the sole factor on which the question of custody of the child could be decided and the welfare of the child should also be taken into consideration. However, the court was of the view that the proceedings in the writ petition was not appropriate to decide the contentious issues. Ultimately, the court directed the parties to appear before the District Judge of Chandigarh, who was directed to conduct an enquiry and make a report after allowing the parties to adduce evidence on the issues involved in that case. Ultimately, the court directed the parties to appear before the District Judge of Chandigarh, who was directed to conduct an enquiry and make a report after allowing the parties to adduce evidence on the issues involved in that case. A reading of the operative paragraphs of the judgment, namely paragraphs 3 and 4 of the judgment, will show that the said order came to be passed on the consent of the parties to the case before the Apex court. They are reproduced here under:- "3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh. 4. Parties have agreed to appear before the District Judge on Thursday, April 9, 1981 at 11.00 a.m. The learned Judge will give necessary directions to the parties for the expeditious disposal of the matter." 11. A reading of the said observations made in the judgment of the apex court cited above and direction issued in Dr.Mrs.Veena Kapoor vs. Varinder Kumar Kapoor's case reported in AIR 1982 SC 792 , will show that the legality or otherwise of the custody of the minor child with one of its parents cannot be sold criterion for deciding the question who, between the parents, should be given the custody of the minor child and that the paramount consideration in such cases should be the welfare of the child. But, when complex issues have arisen and practical difficulties are perceived the question should be left to be conveniently decided by the civil court/family court, wherein parties can lead evidence contentious issues, requiring taking of evidence, is not suitable for resolution in a writ petition (Habeas Corpus Petition). 12. But, when complex issues have arisen and practical difficulties are perceived the question should be left to be conveniently decided by the civil court/family court, wherein parties can lead evidence contentious issues, requiring taking of evidence, is not suitable for resolution in a writ petition (Habeas Corpus Petition). 12. After considering the facts and circumstances of the case, especially the complexity of the issues involved in this case, the fact that the petitioner's allegations is to the effect that the custody of the child was taken by the 4th respondent while the parties were in a foreign country, namely Abu Dhabi, and the further fact that the child and the 4th respondent are now in the said country this court is of the considered view that the habeas corpus petition filed under Article 226 of the Constitution of India shall not be the appropriate proceedings to make a decision as to who, between the petitioner and the 4th respondent, shall be entitled to the custody of the child. It needs elaborate enquiry, in which opportunity is to be given to both the parties to lead evidence. The same can be conveniently done only in a civil court / family court. 13. For the said reason alone, we are of the considered view that the present habeas corpus petition should fail and the same deserves to be dismissed. Accordingly, the habeas corpus petition is dismissed. 14. However, by way of clarification, it is made clear that the remedy open to the petitioner in the other forum shall not be affected by the dismissal of this habeas corpus petition, as we have not decided the rival contentions on merit.