KAMASHI Vs. A RADHAKRISHNAN

JUDGEMENT

(1.) This petition is by the mother of a male child aged about 16 months at the time of filing the petition for issue of a writ of habeas corpus directing the respondents to produce the child and hand over the same to her. The petitioner is the wife of Venkatesan, son of respondents 1 and 2. The marriage took place on 26-4-1991, though in the affidavit of the petitioner filed in support of the petition it was wrongly typed as 26-11-1991. The child was born on 15-8-1992. Venkatesan died on 9-11-1993, though the petitioner stated in her affidavit that he died on 10-11-1993. According to the petitioner, she was illtreated by respondents 1 and 2, who demanded dowry and on account of their illtreatment, she was living with her parents for about five months prior to the filing of the petition with her child. Her husband took away the child about two months prior to the petition and she caused a lawyer's notice to be issued asking for return of the child, but he did not do so. After the death of her husband, she approached the respondents in order to get back the child but it was of no avail. She gave a police complaint to All Women Police Station, Adyar, with the aid of the Tamil Nadu State Legal Aid and Advice Board. When her parents went with the Police officials to get the child, her mother was beaten badly by the respondents and their friends. She was nursing the child at the time when it was forcibly taken away. She was under tremendous emotional and physical anguish and, therefore, she has filed the writ petition.

(2.) In the counter affidavit filed by respondents 1 and 2, the following case is set out:- The respondents never demanded dowry and celebrated the marriage with their money to the tune of Rs. 15,000/-. The petitioner deserted her husband on or about 15/04/1993 and since then the child was only with them. They were bringing up the same with all affection and care. The petitioner left the child voluntarily and never used to feed the child with breast-milk. The child used to take only cow's milk in a bottle from the birth. From the 45th day after the birth, the respondents are feeding the child and it is affectionately attached to them. In the lawyer's notice she only demanded restitution of conjugal rights and not the child. The petitioner had poisoned her husband and his body was found opposite to the house of the petitioner's sister one Mallika, where the petitioner is actually living. The petitioner refused to live with her husband in a Panchayat held on 4-11-1993 at Sholinganallur, Kumaran Nagar. She came on 8-11-1993 to the house of respondents at Teynampet and took her husband in a auto-rickshaw in spite of the protest by respondents 1 and 2 and on the very same night message came of the death of the petitioner's husband. On 9-11-1993, the petitioner, her sister Mallika and her husband one Raja Bahadur were all missing from their house at Kumaran Nagar and the said Mallika also locked the door and was witnessing the scene from a long distance. The people in the village witnessed the escape of the petitioner and the matter was reported to the Tpolice. A case was registered in No. 3434/93 on 9-11-1993 under Section 174 of the Code of Criminal- Procedure. The police is awaiting the report from the expert regarding the cause of death. The welfare of the child is not in the hands of the petitioner. She refused to accept the son of the respondents and aso never cared to look after the child. The allegation that the child was forcibly taken in false and the petitioner was not nursing the child. The child is with the respondents legally. The petitioner has also categorically stated in the panchayat that she left the child at her husband's place as she did not want to live with him and she had thrown away the 'thali'. The petitioner never demanded the child. The petition is not maintainable as the child is not in illegal custody and it was not taken away from lawful guardian. The petitioner is one of the suspects for the poisoning of her husband and the cause is her illicit relationship with one Raja Bahadur, husband of her sister Mallika. The custody of the child was handed over to the respondents by its father and natural guardian even before the desertion by the petitioner. The custody is legal and it cannot be questioned by the petitioner in a writ petition. The respondents are always willing and ready to permit and allow the petitioner to visit their house and show her affection to wards her child and they are the last persons to prevent her.

(3.) A reply affidavit is filed by the petitioner. She claimed that she knew of her husband's death only on 10-11-1993. It is said that the child was with her for one year and her husband forcibly took him away. Her husband wanted her to attend a Panchayat but she left Sholinganallur to talk with her father. She had no idea of her husband's death and the circumstances which led to it. According to her, a reading of the document of Panchayat would show that it was not as per caste practice, as neither her nor her husband's singnature was in it. None of the events mentioned in the Panchayat took place. It is false to state that she took away her husband on 8-11-1993. She was at Gingee when the death of her husband was alleged to have taken place. The complaint to the police is only a counter-blast. The allegation that she was having illicit intimacy with her cousin sister's husband is mischievous and false. She is entitled to the custody of the child as she is the natural guardian.