K SUGANYA Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THE petitioner is the mother of a 2 years old female child Nandhini, who is admittedly in the custody of her father, namely the fourth respondent herein. THE fourth respondent is employed in Abu Dhabi and after his marriage with the petitioner, both of them set up their marital home in Abu Dhabi. THEy were gifted with the birth of the above said girl child Nandhini. After a couple of years from the date of birth of the child Nandhini, there arose difference of opinion between the husband and wife, pursuant to which the petitioner alone came back to India and lodged a complaint with the Inspector of Police, S.14 Peerkankaranai Police Station alleging cruelty demanding dowry. In the said complaint, she had also asked for the recovery of the custody of the said child from her husband. THE police assigned C.S.R.No.348/2010 and conducted an enquiry and after enquiry, they did not take effective steps to get the custody of the child transferred to the petitioner. THE petitioner also took steps through the Indian Embassy in Abu Dhabi, which also failed to yield the result desired by the petitioner, namely retrieval of the custody of the child, since after enquiry for which the fourth respondent appeared with the child, the Indian Embassy in Abu Dhabi did not find fault with the fourth respondent and allowed him to continue to be there in Abu Dhabi along with the child. THEreafter, the petitioner has chosen to approach this court by way of the present Habeas Corpus Petition seeking the issuance of a writ of Habeas Corpus for the production of the child and entrustment of the custody of the child to her.

(2.) THE learned counsel for the petitioner has argued with vehemence that a child aged about 2 years is very much in need of the nursing and fostering of the mother and the 4th respondent, though happened to be the father of the child, is denying such a right of the child to have the nursing of the mother; that the same alone shall be the ground on which this court has to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to direct the production of the child and consequent entrustment of the custody of the child to the petitioner. THE learned counsel for the petitioner has contended further that in case of custody of minor children, the paramount consideration is not whether the present custody of the concerned child is lawful or illegal and on the other hand, the welfare of the child should be the paramount consideration in making a decision as to in whose custody the child should be left.

(3.) IN fact, the respondents 1 to 3 do not have any personal interest and they are not interested in the outcome of the case, which is a dispute between wife and husband regarding the custody of their minor child, as the child is admittedly in a foreign country, namely Abu Dhabi, in the custody of the 4th respondent, the father of the child.