K V BHASKARAN Vs. P O SHOBA

JUDGEMENT

(1.) THIS, habeas corpus petition is for directing the respondent, who is the wife of the petitioner, to produce their minor child deepak before this Court and Tor directing the custody of the said minor child to be given to the petitioner.

(2.) THIS petition came up on 13. 10. 1992 before us for filing counter, and the learned counsel for the respondent requested further time for filing counter. However, we, after going through the allegations in the affidavit in support of the petition, asked the learned counsel for the petitioner how this habeas corpus petition under Art. 226 of the Constitution of india, is maintainable on the very allegations made in the said affidavit. In other words, will not this Court be justified in holding than on the very allegations in the supporting affidavit, the petitioner could only move the proper civil court under the Guardians and Wards Act for the relief sought for in this petition" In reply to the said quary, the learned counsel for the petitioner addressed arguments on that point regarding the maintainability.

(3.) THAT apart, not only right from 1986 the petitioner has not taken any steps to get the custody of the child, but even in his divorce proceeding in 1991, he did not ask for the custody of the child, which he could have done. Sec. 26 of the Hindu Marriage Act provides that in any proceeding under the said Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree werestill pending. So, the said section provides for the court making suitable orders for the custody of the children of the parties in any proceeding under the said Act and empowers the court to pass not only the above referred to interim orders, but also orders subsequent to the decree with reference to the custody of children. So, under the abovesaid section, jurisdiction to pass orders with respect to the custody of minor children continues evenafter the main proceeding initiated under the Act has come to an end. Videa. R. M. Rajoo v. Hamsa Rani, (1974)2 M. L. J. 237. A. I. R. 1975 Mad. 15.