PREMILA DEVI Vs. R JAYACHANDRAN SUB INSPECTOR OF POLICE PALLIPALAYAM POLICE STATION PALLIPALAYAM ERODE

JUDGEMENT

(1.) THIS writ petition is for issue of a writ of habeas corpus, directing the respondents to produce the child, Harihara Sudhan, before this Honourable Court and to deliver him to the petitioner and set him at liberty. The petitioner has alleged in the affidavit in support of this petition that she got married to the first respondent on 3rd September, 1976. The second respondent is her mother-in-law. A male child was born on 20th May, 1979, and its name is Harihara Sudhan. The petitioner has further alleged that the first respondent herein, under the instigation of the second respondent and his sister, meted out cruel treatment to the petitioner and that the first respondent abused her stating that she has not brought enough dowry from her parents. The petitioner has further alleged that, subsequent to the birth of the child, Harihara Sudhan, the first respondent inflicted both physical and mental agony on the petitioner, that the respondents removed the child, who aged about eleven months at the time, forcibly from the petitioner on 27th April, 1980, that the petitioner was beaten severely by the first respondent and that the first respondent sent the child through the second respondent to Neyveli, where his father is employed as the Chief Security Officer, Neyveli Lignite Corporation Limited. There is a specific allegation to the effect that, before sending the child with the second respondent they joined together and forced the petitioner to sign blank papers and, subsequently, sent the petitioner to Madras through one Police Constable by name M. Natesan. It is alleged by the petitioner that she is suffering very much due to the separation of her child and that the child, which is in the custody of the second respondent at Neyveli, must be given back to her. The petitioner has also stated that, as per section 6 (a) of the Hindu Minority and Guardianship Act, 1956, she is entitled to the custody of the child, since the child was only 11 months old. There is also an allegation in paragraph 10 of the affidavit in support of the writ petition that the petitioner apprehends danger to the child's life and health. With the above said allegations, the present writ petition was filed.

(2.) THE first respondent has filed a counter -affidavit denying every one of the allegations mentioned in the affidavit in support of the writ petition, except those that were specifically admitted by him. As regards the marriage and the birth of the child, the first respondent has admitted the same. THE first respondent flatly denied the allegation regarding the cruelty alleged to have been meted out by the first respondent to the petitioner. We do not think it is necessary to narrate the various idiosyncrasies of the petitioner alleged by the first respondent in his counter-affidavit. Suffice it to say that the child, according to the first respondent, is with his mother, the second respondent, from its birth and that it is the second respondent who is nurturing and protecting the child born to the petitioner, on 20th May, 1979. THE first respondent has further alleged that the petitioner has refused to join him in spite of several requests and that she has not even cared to come and see the child. According to the first respondent, the second respondent, who is his mother, is staying with him and the child is also in his custody along with bis mother, the second respondent. THE first respondent has also stated that the petitioner has an alternative remedy available to her in law and that the present writ petition is misconceived.

(3.) THE present writ petition is filed under Article 226 of the Constitution of India. This extraordinary remedy is always contemplated to give speedy, effective and efficacious remedy to the aggrieved party, if there is no such urgency, the ordinary course of law must take effect and this extraordinary jurisdiction cannot be resorted to. Thus, in given circumstances, the parlies are at liberty to invoke the jurisdiction of this Court under Article 226 of the Constitution for necessary reliefs. We can presently discuss as to whether there is any urgency on the part of the petitioner herein to resort to the remedy under Article 226 of the Constitution. This is a ease in which the petitioner, who is the mother of the tender child which was born on 20th May, 1979, wants its custody. According to her allegation, she was sent out of the respondents" house, after the male child was forcibly taken away from her on 27th April, 1980. Subsequently, that is, on 7th October, 1980, she has also given birth to a female child No doubt, the petitioner has alleged that cruel treatment has been meted out to her while she was with the first respondent. As far as the tender child is concerned, for which a direction is prayed for, the first respondent has specifically alleged that from its date of birth, the second respondent, who is the mother of the first respondent, is taking care of the child and that the child is in the custody of his mother and himself.