K PADMAVATHY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Petitioner Padmavathi, claiming herself to be the mother of Johnson, aged about 1/2 years, has prayed for issue of a habeas for his production by the second respondent, S.N. Arasu Raja, before this Court, so that the minor child could be set free from illegal custody and handed over to her, who is legitimately entitled to hold its custody.

(2.) In the affidavit sworn to in support of the prayer in the main habeas corpus petition, petitioner has stated that she was married to one Jayaraman on 25/5/1989. She did not have any issue out of this marriage. She was working as a Shop Assistant in a Video Lending Library in Ashok Nagar Shopping Complex from January, 1990. Second respondent, S.N. Arasu Raja, was working in an adjacent shop. Both of them became friendly. On one particular visit to the house of the second respondent he forced her for sexual union. She became pregnant. The consequence was she was driven away from her marital home. Sometime later, second respondent agreed to marry her. They continued to live together. Minor child Johnson was born on 8/4/1992. Obviously Johnson is an illegitimate child, since both parties agree that they have not entered into matrimony, much less valid. According to the petitioner, since the child was illegitimate second respondent was anxious to do away with the child. In the process, he inflicted physical torture on her. In or about September, 1992 second respondent snatched away minor Johnson from her younger sister, who was then taking care of the child. Three days later, on intervention of well-wishers, child was restored to her. Thereafter, child was in her custody till about April, 1993. On 8/4/1993 she happened to meet the second respondent by accident at Jaffarkhanpet. He asked her to hand over the child to him. When his request was not acceded to, the brother of the second respondent snatched the child. She was also beaten in public road by the second respondent. Even then the child was being breast-fed. Inspite of her efforts taken through common friends to have the child restored, such steps did not yield any result. Second respondent was evading. Thereafter, petitioner preferred a complaint on 17.6.1993 before the first respondent, Inspector of Police, Thiruvanmiyur. The child could yet not traced. Hence, she had chosen to invoke the petition under article 226 of the Constitution of India, to plead for the relief she has now asked for.

(3.) On notice, second respondent appeared before us in person along with minor Johnson. He is represented by his Counsel Mr. S.M. Pandian. Counter affidavit sworn to by the second respondent shows that he had entered into matrimony with the petitioner on 10/4/1991 at Tirunelveli. He has further stated that minor Johnson was born on 8/4/1992. According to him, petitioner voluntarily surrendered the child to him and chose to marry one Rajendran, residing at Dindigul. He has also pinpointed the fact of the petitioner having already married one Jayaraman before he came into contact with her. That fact of prior marriage was suppressed. He has further stated in his Counter, that welfare of the child is paramount and since he has means to take care of the minor child, the child must be allowed to be retained by him. He has further stated that his mother was anxious to take care of her grand-son.