Kavya v. State The Superintendent Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE R.SAKTHIVEL Kavya D/o.Bairappa .. Petitioner Vs.
1.
State : The Superintendent of Police Krishnagiri District Krishnagiri.
2.
State : Inspector of Police All Women Police Station Denkanikottai Krishnagiri District.
3.
Mr.K.Ramesh Babu S/o.Krishnappa ..Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ order or direction in the nature of WRIT OF HABEAS CORPUS, to direct the 2nd respondent to produce the petitioner's son K.R.Yeswin Gowda, aged about 3 years, before this Hon'ble Court from the illegal custody of the 3rd Respondent and hand over the custody. Page Nos.1/9
For Petitioner :
Mr.M.P.Saravanan For Respondents :
Mr.E.Raj Thilak Additional Public Prosecutor
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 brevity, convenience and clarity].
2. Short facts are that the petitioner and third respondent (private respondent) are spouses; that the marriage between petitioner and third respondent was solemnized on 19.11.2018; that on 05.10.2019, a male child 'xxxxx' [we are masking name of child and we shall be referring to the 'child' as 'absentee' for the sake of convenience and for obvious reasons] was born from the wedlock between the petitioner and third respondent; that there is matrimonial discord between petitioner and third respondent; that on 23.09.2020, petitioner has lodged a complaint making certain allegations regarding her spouse / in-laws in AWPS-Hosur, Krishnagiri District and a CSR receipt No.139 of 2020 (Family Quarrel) dated 23.09.2020 has been Page Nos.2/9
given; that third respondent's mother (petitioner's mother-in-law) has lodged a complaint in the jurisdictional police station (Uddanapalli Police Station, Krishnagiri District) and the same is taken on file vide FIR No.196 of 2023 dated 18.07.2023; that epicentre of the captioned HCP is custody of absentee; that the captioned HCP has been filed in this Court on 22.08.2023. Apprehension of possible illegal detention of absentee appears to be the basis for captioned HCP.
3. Today, Mr.M.P.Saravanan, learned counsel on record for petitioner and petitioner are before this Court.
4. Issue notice to respondents 1 and 2 (official respondents).
5. Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepts notice for respondents 1 and 2 (official respondents) and learned Prosecutor is instructed by Mr.A.S.Jaffar Hussain, Inspector of Police, Rayakottai Circle Station, Denkanikottai, Krishnagiri District. Page Nos.3/9
6. On instructions, learned Prosecutor submits that second respondent has acted on the aforementioned complaints and preliminary investigation brings to light that absentee is now with the third respondent and third respondent's mother in the address given in the cause title. This drops the curtains on illegal detention apprehension.
7. Be that as it may, petitioner in the captioned HCP petition itself has made it clear that third respondent has already initiated matrimonial proceedings vide H.M.O.P.No.33 of 2023 on the file of 'Subordinate Judge's Court, Denkanikottai, Krishnagiri District' [hereinafter 'said Court' for the sake of convenience and clarity] seeking divorce inter alia under various sub-sections of Section 13 of the Hindu Marriage Act, 1955.
8. From E-Courts Official Website of the District Courts, the following comes to light.
Page Nos.4/9
9. The above scanned reproduction of the download from E-Courts Official Website of the District Courts shows that the next hearing date in Page Nos.5/9
the said Court in H.M.O.P.No.33 of 2023 is 08.09.2023. Learned counsel for petitioner, on instructions, confirms that the petitioner has received summons and has also engaged a lawyer for representing her before said Court.
10. In the light of the narrative thus far, the following order is made: (i) Let the second respondent ensure that third respondent and absentee are produced before said Court i.e., Subordinate Judge's Court, Denkanikottai, Krishnagiri District on 08.09.2023 when HMOP No.33 of 2023 is taken up; (ii) It is open to the petitioner to make a suitable plea before said Court regarding custody of absentee by filing a suitable application as per applicable law. We make it clear that all the rights and contentions of third respondent, third respondent's mother and / or anyone concerned with the matter are preserved for being canvassed inter alia before said Court or any other Court/s/Forum/Fora/Authority/Authorities and this is more so, as the captioned HCP is being disposed of in Page Nos.6/9
the Admission Board when the third respondent is not before this Court;
(iii) This Court made it clear that this Court is not expressing any view or opinion about the custody of the absentee and said Court i.e., Subordinate Judge's Court, Denkanikottai, Krishnagiri District can take a call on its own merits and in accordance with law depending on the plea de hors this order;
(iv) It is also open to the petitioner and / or anyone concerned including third respondent and his mother and / or anyone else concerned with the matter to move jurisdictional GAWA Court [to be noted, 'GAWA' stands for 'Guardians and Wards Act, 1890'] or any other Court with regard to matrimonial discord between the petitioner / third respondent and tussle for custody of absentee as between two parents; (v) As regards sub-paragraphs (ii) to (iv) supra we make it clear that this comes across as a tussle between two parents regarding custody of a minor child and therefore the Page Nos.7/9
aforementioned (ii) to (iv) owing to facts and circumstances of the case on hand;
(vi) As regards complaints given by petitioner and third respondent's mother, jurisdictional police shall proceed with the investigation on its own merits and in accordance with law untrammelled by this order.
11. Captioned HCP is disposed of as closed albeit with the aforementioned observations and preservation of rights in the aforesaid manner.
(M.S.,J.) (R.S.V.,J.) 31.08.2023 Index : Yes/No Speaking / Non-speaking mk Page Nos.8/9
M.SUNDAR, J., and R.SAKTHIVEL, J., mk To 1.
State : The Superintendent of Police Krishnagiri District Krishnagiri.
2.
State : Inspector of Police All Women Police Station Denkanikottai Krishnagiri District.
3.
The Public Prosecutor High Court, Madras.
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