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2013 DIGILAW 210 (MAD)

Stephen v. Superintendent of Police

2013-01-09

M.JAICHANDREN, S.NAGAMUTHU

body2013
Judgment S. Nagamuthu, J. 1. The petitioner is the father of the minor children namely S. Abi Martin, aged 5 years and S. Merlin, aged about 2 years. His wife, Mrs. Jasmin @ Jospin, committed suicide on 11.02.2012. At that time, the petitioner was in Abu Dhabi. A case has been registered in respect of the death of his wife and the matter is under investigation. He returned to India in the month of November 2012. The children were all along in the custody of the third respondent, who is maternal grand father of the children. Alleging that the custody of the children with the third respondent is illegal, the petitioner has come up with this Habeas Corpus Petition. 2. Today, when this Habeas Corpus Petition was taken up, the petitioner and the third respondent are present before this Court. The third respondent has produced the minor children also. The second respondent is also present before this Court. We have heard the learned counsel appearing for the parties and also perused the records carefully. 3. The only contention of the learned counsel for the petitioner is that the petitioner, being the legal guardian of the minor children, is entitled to have the custody of the minor children. He would further submit that the third respondent has got no legal right to keep the minor children and thus, the custody of the minor children by the third respondent is illegal. According to the learned counsel, the custody of the minor children should be handed over to the custody of the petitioner. 4. We have considered the above submissions. In our considered opinion, while exercising the Habeas Corpus Petition jurisdiction, this Court can not go into the question of legal guardianship or legal entitlement to have the custody of the minor children. In this Habeas Corpus Petition, we are concerned only with the welfare of the minor children. Undoubtedly, the children have been all along in the custody of the third respondent right from the death of their mother. The third respondent is after all the maternal grandfather of the children. 5. In our considered opinion, when the children have been all along in the custody of the third respondent and they have been taken care of fully by the third respondent, we cannot disturb the custody by passing any order in this Habeas Corpus Petition. The third respondent is after all the maternal grandfather of the children. 5. In our considered opinion, when the children have been all along in the custody of the third respondent and they have been taken care of fully by the third respondent, we cannot disturb the custody by passing any order in this Habeas Corpus Petition. If the petitioner has got legal right to have the custody of the children, it is for him to work out the remedy before the civil Court. In such view of the matter, this Habeas Corpus Petition deserves only to be dismissed. 6. In the result, the Habeas Corpus Petition is dismissed, however, with liberty to the petitioner to work out his remedy before the appropriate civil Court. We also make it clear, any of the observations made by us are only for the purpose of this writ petition and the same shall not have any influence in the mind of the civil Court, when the question of legal custody is being examined.