Petitioner filed a habeas corpus petition to produce minor daughters for whom she claimed custody. The Court held it lacked jurisdiction to adjudicate custody rights and directed relief to the mother pending appropriate civil proceedings.
The habeas corpus petition was disposed of; custody of minors to be with the mother pending civil suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2014
CORAM
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
and
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
H.C.P. No.1406 of 2014
Mrs.J.Hadhiya Fathima .. Petitioner
Vs.
1.State rep. By
Sub Inspector of Police,
Law and Order,
B-1 North Beach Police Station,
Chennai – 1.
2.Mrs.Safarina Yasmin
3.Ansari .. Respondents
Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus, directing the first respondent Sub Inspector of Police, Law and Order, B-1 North Beach Police Station, Chennai – 1 to produce 1.Minor H.Sasnihara, 8 years, 2.Minor H.Fathima Nachiye, 7 years, daughters of Rafique Syed Hariza Ali Hussain and set the minors at liberty.
For Petitioner : Mr.M.Vivekanandan
For Respondents : Mr.M.Maharaja, Addl. Public Prosecutor for R1 Mr.V.Chandrasekaran for R2 & R3 ORDER
(Order of the Court was made by V.DHANAPALAN, J.)
The petitioner has filed this habeas corpus petition praying for a direction to the first respondent to produce the minor children viz., H.Sasnihara, aged 8 years and H.Fathima Nachiye, aged 7 years, daughters of Rafique Syed Hariza Ali Hussain and set them at liberty.
2.Heard Mr.M.Vivekanandan, learned counsel for the petitioner, Mr.M.Maharaja, learned Additional Public Prosecutor for the first respondent and Mr.V.Chandrasekar, learned counsel for respondents 2 and 3.
3.It is the case of the petitioner that she is the mother of Rafique Syed Hariza Ali Hussain, who is the husband of the second respondent and out of the wedlock between her son and the second respondent, two female children were born on 07.05.2006 and 06.05.2007 respectively at Singapore. According to the petitioner, the second respondent has given her consent to keep the minor children under the custody of the petitioner ever since 25.05.2013 and they are studying in Chennai. While so, due to misunderstanding with her husband, the second respondent came to Chennai during January, 2014 and demanded custody of the minor children. Since the second respondent preferred a complaint on the file of the first respondent, the petitioner has filed G.W.O.P.No.683 of 2014 on the file of the I Additional Family Court, Chennai to declare the petitioner as the guardian of the minors. Thereafter, the children were taken by the petitioner's third son and handed over to the third respondent, who is the maternal uncle of the second respondent. Therefore, the petitioner preferred a complaint to the first respondent police. Since no action has been taken by the first respondent, the petitioner has preferred this habeas corpus petition.
4.Learned counsel for respondents 2 and 3 has produced the detenues/minor children before this Court. Learned counsel for the petitioner would submit that on her own volition, the second respondent has entrusted the custody of the children to the petitioner/paternal grandmother and since then, the petitioner is looking after the children with love and affection and it is very difficult to part with them.
5.Learned counsel for the second respondent/mother of the minor children would submit that the second respondent being the natural guardian should have the custody of the children and she is sound enough to give good education and provide a comfortable life to the children. Therefore, the custody of the children has to be given to the second respondent.
6.Taking into account the age of the children viz., 8 and 7 years respectively and as the grandmother and mother of the children are claiming rights, we feel it appropriate that the competent Court of jurisdiction shall decide about the claim of the parties on the custody of the children taking into account the financial condition, welfare of the children, future interest and all other factors, on
the basis of oral and documentary evidence. This Court lacks jurisdiction in entertaining such petitions and the learned counsel on either side would state that the parties may be given liberty to move the Court of appropriate jurisdiction to claim their rights.
7.In the light of the above stated position, recording the
statement made by the learned counsel for the parties, this habeas
corpus petition is disposed of. The custody of the minor children
shall be with the * Second respondent , till the parties move the
concerned Court claiming their right in respect of the custody of
the children.
-s/d-
Assistant Registrar(CSIV)
Dt:19/6/2014
Amended as per the order of
this Hon'ble court dt.25.06.2014 made
in HCP.1406/14
-s/d-
Assistant Registrar(CSIV)
Dt:7.7.2014
True Copy
sub-Assistant Registrar
mmi
To
1. The Sub Inspector of Police, To be substituted the order
Law and Order, copy already despatched on
B-1 North Beach Police Station, 24.6.2014
Chennai – 1.
2.The Public Prosecutor
High Court, Madras-104
+1 cc to Mr.V.Chandrasekar Advocate sr.27203
+1 cc to Mr.M.Vivekanandan Advocate sr.26824
HCP No.1406 of 2014
aa19/6/2014
ak(co)
gkg.7.7.2014
1 issue framed by the court
Whether this Court has jurisdiction to decide custody of minor children in a habeas corpus petition.
Mrs. J. Hadhiya Fathima
State
Mrs. Safarina Yasmin
Ansari
V. DHANAPALAN
G. CHOCKALINGAM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
