B.Harihar v. The Commissioner Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.08.2023

CORAM

THE HON'BLE MR JUSTICE M.S.RAMESH AND THE HON'BLE MR JUSTICE M.NIRMAL KUMAR H.C.P.(MD)No.744 of 2023 B.Harihar ... Petitioner / Husband and Father of the Detenus Vs.

1.The Commissioner of Police, Trichy City, Trichy.

2.The Inspector of Police, Uraiur Police Station, Trichy City, Trichy.

3.S.Karthik .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus, to direct the respondents 1 and 2 to secure

and produce the person or body of the detenue, namely, Sivagamavalli, D/o.Jeyachandiran, aged about 38 years, Elilvelan, S/o.Harihar, aged about 6 years, Poongulali, D/o.Harihar, aged about 4 years, who are wife and children of the petitioner before this Court and set them at liberty. For Petitioner : Mr.M.Vivek Bharathi For R1 & R2 : Mr.RMS.Sethuraman Additional Public Prosecutor For Detenue : Ms.G.Geethanjali

ORDER

(Order of the Court was made by M.S.RAMESH,J.) The petitioner herein is the husband of Sivakamavalli, aged about 38 years. Through her, he has two children, namely, Elilvelan, aged about 6 years and Poongulali, aged about 4 years. When the petitioner's wife went missing from 22.11.2022, he had given a complaint before the 2nd respondent Police on 21.06.2023. Since there was no much progress in the investigation, he had chosen to file the present Habeas Corpus Petition.

2.In the affidavit filed in support of this petition, the petitioner has not made any statement with regard to the illegal custody of his wife with anyone. Apart from the statement that his wife and children are in the custody of the 3rd respondent, the affidavit does not disclose as to how the said custody is illegal. Furthermore, the children also cannot be claimed to be in the illegal custody of their mother.

3.If and when the petitioner is aggrieved against the inaction on the part of the Police authorities in not acting on the complaint, appropriate remedy would be to invoke Section 482 Cr.P.C., and seeking for issuance of Habeas Corpus Petition cannot be maintained.

4.Today, when the matter was called, the petitioner's wife had voluntarily appeared before this Court along with Advocates and had also filed affidavit dated 09.08.2023. In the said affidavit she had made serious allegations against the petitioner and her inability to live with him. In view of the matrimonial dispute between herself and the petitioner herein, she

had voluntarily left the matrimonial house at Trichy and right now she is living separately in Manoj Crystals, Krishna Nagar 3rd Cross, Vellappanchavadi, Chennai-77 and working at Saveetha University, Saveetha Dental College and Hospital, Chennai-77. She has also stated that she is scared to leave her children with the petitioner because of his violent behaviours and other habits. She has also stated that the 3rd respondent herein is one among the maternal uncle and he has been unnecessarily impleaded as party respondents and that she has no other relationship with the 3rd respondent herein. While stating all these facts, she has also stated that she intends to get divorce from him.

5.We have taken into consideration of the affidavit filed by the petitioner's wife. Even otherwise, the petitioner's wife, being a major, has taken a conscious decision to get separated from her husband and is now living separately. In this background, we cannot force her to live with the petitioner herein and the scope of Habeas Corpus Petition is also not that. In case the petitioner intends to seek custodial rights, it is open to him to

obtain appropriate orders from the concerned Court of law. Accordingly, this Habeas Corpus Petition is closed.

(M.S.R.,J.) & (M.N.K.,J.) 09.08.2023 NCC : Yes / No Index : Yes / No Yuva To 1.The Commissioner of Police, Trichy City, Trichy.

2.The Inspector of Police, Uraiur Police Station, Trichy City, Trichy.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

M.S.RAMESH, J.

AND M.NIRMAL KUMAR, J.

Yuva H.C.P.(MD)No.744 of 2023 09.08.2023