Nishanth Kumar v. The State Represented By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL H.C.P.No.1388 of 2023 Nishanth Kumar .. Petitioner Vs.
1.
The State represented by Superintendent of Police (SP) Pothinayanapally Jakappan Nagar, Krishnagiri Tamil Nadu - 635 001.
2.
The State represented by The Inspector of Police City Police Station Hosur, Krishnagiri Tamil Nadu - 635 109.
3.
M.Shanmugalatha Plot No.2 Phase 5, Nandhavanam Gokul Nagar Road Hosur, Krishnagiri - 635 109.
4.
C.Swetha Plot No.2 Phase 5, Nandhavanam Page Nos.1/8
Gokul Nagar Road Hosur, Krishnagiri - 635 109.
..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to produce the petitioner's son (minor) Baby xxxxx, aged 7 months from the illegal custody of the respondent Nos.3 and 4 before this Hon'ble Court and hand over the custody to the petitioner. For Petitioner :
Ms.G.S.Saranya Bai For Respondents :
Mr.A.Gokulakrishnan Additional Public Prosecutor For R1 & R2 Mr.K.V.Sale Murugan along with Mr.S.Gunasekar, for R3 and R4
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] This order will now dispose of the captioned 'Habeas Corpus Petition' [hereinafter 'HCP' for the sake of convenience and clarity].
2. Factual matrix in a nutshell is that the petitioner married one Sushma on 21.03.2022; that the petitioner and Sushma were blessed with a male child 'xxxxx' [we are masking the name, we shall be referring to this child as 'absentee' for the sake of convenience and clarity] on 14.12.2022; Page Nos.2/8
that on the very next day, 15.12.2022 unfortunately petitioner's wife Sushma died; that this Court is informed that proximate cause of the death is Dengue; that respondents 3 and 4 (private respondents) are petitioner's mother-in-law and sister-in-law respectively; that fourth respondent is petitioner's late wife Sushma's elder sister; that the captioned HCP has been filed on 19.06.2023 after submitting a representation to the second respondent on 13.05.2023 alleging that respondents 3 and 4 are holding the absentee.
3. Issue notice to all respondents.
4. Mr.A.Gokulakrishnan, learned State Additional Public Prosecutor accepts notice for official respondents [respondents 1 and 2] and learned State Additional Public Prosecutor is instructed by Mr.R.S.Sivakumar, Inspector of Police, Hosur Town Police Station, Krishnagiri District. As regards respondents 3 and 4 (private respondents), Mr.K.V.Sale Murugan [Enrol. No.316/1998] accepts notice for respondents 3 and 4 and submits that he along with his colleague Mr.S.Gunasekar [Enrl. No.817/1993] with address for service at Room No.21, 2nd Floor, 1/2, Kondi Street, Parrys, Chennai-600 001 would be representing respondents 3 and 4. Page Nos.3/8
5. In the light of the nature of the matter without insisting for vakalatnama, we record that Mr.K.V.Sale Murugan and his colleague Mr.S.Gunasekar would be representing respondents 3 and 4.
6. As regards petitioner, Ms.G.S.Saranya Bai, learned counsel is before us. To be noted, petitioner is not in Court.
7. We heard the aforementioned counsel and learned Prosecutor and the following facts emerged:
(i) Petitioner as well as mother-in-law (third respondent) have approached jurisdictional GAWA Court ['GAWA' stands for 'Guardians and Wards Act, 1890'] and petitions filed by petitioner and third respondent are G.W.O.P.Nos.9 of 2023 and 5 of 2023 respectively in the jurisdictional District Court, Krishnagiri;
(ii) Aforementioned G.W.O.Ps have been filed inter alia seeking custody of the absentee;
(iii) Third respondent was residing at D.No.L3, 84, VOC Nagar, New ASTC Hudco, Hosur Town and Taluk, Krishnagiri Page Nos.4/8
District and we are informed that it is her own accommodation / own house (not rented). Now the third respondent has moved in with her daughter (fourth respondent) in Plot No.2, Phase 5, Nandhavanam, Gokul Nagar Road, Hosur, Krishnagiri - 635 109 (in the last one week);
(iv) Fourth respondent is residing in Plot No.2, Phase 5, Nandhavanam, Gokul Nagar Road, Hosur, Krishnagiri - 635 109 and we are informed that it is her own house; (v) Fourth respondent is married in the last one year. We are informed that fourth respondent is in Chennai for three days in a week in VCK Royal Gardens, F2, 1st Floor, 1st Cross Street, Surendra Nagar, 6th Cross, Adambakkam, Chennai-600 088;
8. In one of the aforesaid GAWA matters, this Court is informed that the fourth respondent has been set ex parte. Learned counsel for respondents 3 and 4 assures that necessary steps will be taken and an advocate has already been engaged and both sides submit that the GAWA matters will be diligently pursued in the concerned Court. Page Nos.5/8
9. The narrative thus far makes it clear that this is a tussle between father on one side and grandmother and maternal aunt on other side for custody of seven month old child. Be that as it may, both parties have already approached jurisdictional GAWA Court. Therefore, it is only appropriate that the custody of the absentee issue is decided by GAWA Court on its own merits and in accordance with law untrammeled by this order which has been made for the limited purpose of habeas legal drill. Captioned HCP disposed of as closed albeit recording what unfurled in the Court today.
(M.S.,J.) (R.S.V.,J.) 27.07.2023 Index : Yes / No Speaking / Non-speaking order mk Page Nos.6/8
To 1.
The State represented by Superintendent of Police (SP) Pothinayanapally Jakappan Nagar, Krishnagiri Tamil Nadu - 635 001.
2.
The State represented by The Inspector of Police City Police Station Hosur, Krishnagiri Tamil Nadu - 635 109.
3.
The Public Prosecutor High Court, Madras.
Page Nos.7/8
M.SUNDAR, J., and R.SAKTHIVEL, J., mk H.C.P.No.1388 of 2023 27.07.2023 Page Nos.8/8