Shak Mytheen v. State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2022
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH AND THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN H.C.P.NO.2097 OF 2021 Shak Mytheen .. Petitioner Vs.
1. State of Tamil Nadu represented by The Superintendent of Police, Salem District.
2. The Deputy Superintendent of Police, Mettur, Salem District - 363 401.
3. The Inspector of Police, Mettur Dam I Police Station, Salem District - 636 401.
4. Akbar Patcha
5. Dilshath
6. Nasreen Chithara .. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus directing the 1st, 2nd and 3rd respondents police to produce the body of the detenu viz., minor S.Sahk Aslam, aged 3 1⁄2 years, now detained under the custody of the respondents 4, 5 and 6 and to hand over his custody to the petitioner.
For Petitioner : Ms.T.K.S.Bharathy Shri For RR 1 to 3 : Mr.R.Muniyapparaj, Addl. Public Prosecutor For RR 4 to 6 : Mr.C.Sivakumar
ORDER
[Made by P.N.PRAKASH, J.] This habeas corpus petition has been filed seeking a direction to the respondents 1 to 3/police to produce the body of the detenu viz., minor S.Sheik Aslam, aged about 3 1⁄2 years, now detained under the custody of the respondents 4 to 6 and to hand over his custody to the petitioner.
2.
On 11.01.2022, we passed the following order: "It is the case of the petitioner that he got married to Afrin Chithara on 02.04.2017 and through the wedlock, he has a child viz., Sheik Aslam, who was born on 21.04.2018; his wife died of blood cancer on 16.11.2021 and it is the allegation of the petitioner that after the death of his wife, his parents-in-law are keeping the custody of his son and they are not handing his son over to him. On these allegations, the petitioner has filed the present habeas corpus petition.
2.
Today R.Subramanian (Mobile No.94981 04757), Inspector of Police and Sathya (Mobile No.94981 15008), Grade I 1465, Mettur Police Station, Salem District, are present. The respondents 4 to 6 are present before this Court with the child Sheik Aslam along with their counsel. The petitioner (Mobile No.97864 40160) is also present before this Court along with his counsel. 3.
We heard the parties individually and we found that the child was not immediately going to the petitioner for obvious reasons, which, we do not want to state here. However, the learned counsel for the petitioner submitted that the respondents 4 to 6 do not have a permanent address and their whereabouts are not known as it is alleged that they are involved in a chit transaction in Erode, in connection with which, some police complaints are pending against them.
4.
However, the respondents 4 to 6 clearly stated that they are not in abscondance and they are living near R.S. Illam, Amman Nagar, 3rd Street, Maamarathupalayam, Erode - 638 004. The fifth respondent stated that at present she is residing with her brother Dhasthagir Basha (Mobile No.9786116692) at Ashokpuram, V.Chathram, Erode - 658 004.
5.
In our considered view, the child cannot be forcibly taken away from the custody of the respondents 4 to 6 and handed over to the petitioner, as that would psychologically affect him. However, as a temporary arrangement, this Court issues the following
directions:
(a)the petitioner shall collect the child viz., Sheik Aslam on Saturday at 10.00 a.m. from the respondents 4 to 6 and return the child on Sunday at 5.00 p.m. without fail;
(b)if the petitioner violates the above direction, it is open to the respondents 4 to 6 to approach the third respondent/police, who shall immediately take appropriate action against the petitioner and report to this Court.
6.
As stated above, this is purely a temporary arrangement and this Court proposes to monitor this arrangement till the next date of hearing and take decision in this regard. In the meanwhile, it is open to the parties to approach the appropriate Court for guardianship and custody, if so advised or if the parties are able to amicably arrive at a settlement, that could also be reported to this Court on the next date of hearing.
With the above directions, this matter stands adjourned to 22.02.2022."
3.
Heard Ms.T.K.S.Bharathy Shri, learned counsel for the petitioner, Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the respondents 1 to 3 and Mr.C.Sivakumar, learned counsel for the respondents 4 to 6. Today all the parties are present before this Court. 4.
We find that the child Sheik Aslam has developed attachment towards the petitioner, he being the natural guardian of the child. That apart, it is seen that the respondents 4 and 5 are involved in some chit transactions and there are some police complaints against them in C.S.R.No.163 of 2021 on the file of the Vadakur Police Station, Erode District. 5.
In such view of the matter, we are of the opinion that interests of justice will be served, if custody of the child Sheik Aslam is given to the petitioner and visitation rights are given to the respondents 4 to 6 at the residence of the petitioner on every weekends.
6.
Accordingly, the following directions are issued: i. The custody of the child Sheik Aslam is given to the petitioner;
ii.The respondents 4 to 6 may visit the child Sheik Aslam at the residence of the petitioner at 10.00 a.m. on every Saturdays and Sundays;
iii.The respondents 4 to 6 shall not take away the child Sheik Aslam from the custody of the petitioner;
7.
This is purely a temporary arrangement and it is open to the parties to approach the appropriate Court for guardianship and custody of the child Sheik Aslam, if so advised and the said Court shall proceed with the matter without in any manner influenced by what is stated above.
In the result, this habeas corpus petition stands closed. Sd/- Assistant Registrar(CS-VII) //True Copy// Sub Assistant Registrar nsd To
1. The Superintendent of Police, Salem District.
2. The Deputy Superintendent of Police, Mettur, Salem District - 363 401.
3. The Inspector of Police, Mettur Dam I Police Station, Salem District - 636 401.
4. The Public Prosecutor, High Court, Madras.
+1cc to M/s.T.K.S.Bharathy Anandraj, Advocate, S.R.No.11407 H.C.P.No.2097 of 2021 GPL(CO) RLP(16/03/2022)