MAKUTAM BASAVALINGAM Vs. MAKUTAM SWARAJYALAKSHMI

JUDGEMENT

(1.) This application was filed under Article 226 of the Constitution to issue an order, direction or writ particularly one in the nature of habeas corpus to the 2nd and 3rd respondents herein directing him to produce the baby, son of the petitioner, before this Court immediately and then restore it to his custody. The allegations in the affidavit in support of this petition are that the petitioner married the first respondent who is the illegitimate daughter of the 3rd respondent by his concubine the second respondent, that the marriage took place on the 4th of April, 1953, that ever since the marriage the first respondent, the petitioner's wife, has been going away off and on from his house to her parents' house without obtaining his consent and much against his wishes at the instigation of the 2nd and 3rd respondents, that she has been slighting him and has also been disobedient, that her behaviour is not conducive to good morals and that in the last week of May when he had an attack of small-pox the first respondent went away to her parents' house with the child in utter disregard of the petitioner's wishes and without caring for his health and without attending on him.

(2.) These allegations are denied in the counter-affidavit. It is alleged in the counter-affidavit that this is a mala fide application, that the petitioner was harassing his wife with a view to extract as much money as possible from her parents and that having failed in his attempts to get as much money as possible from the parents of the girl he has conceived the idea of taking out this application for the custody of the child. It is also added that respondents 2 and 3 are wife and husband and the allegation to the contrary is a mischievous one.

(3.) Under Article 226 of the Constitution, the High Courts are invested with power to issue the common law writ of habeas corpus in England and it is not necessary to invoke the jurisdiction of a High Court to obtain direction of the nature of habeas corpus. But the powers conferred by this Article of the Constitution in regard to the issue of writs of the nature of habeas corpus are exercised for the purposes enumerated in section 491, Criminal Procedure Code. Normally, the remedy indicated in section 491, Criminal Procedure Code is for a person deprived of his liberty. If a person is detained without cause and has a right to be delivered, such a writ is granted to such a person. It extends its influence to remove every unlawful restraint on personal freedom in private life. It may in some circumstances be resorted to in order to obtain the custody of children from persons who are illegally or unauthorisedly holding them. But. it is only in exceptional cases that the right of parties to the custody of children is determined in a petition under either of the two provisions of law. Ordinarily, this jurisdiction should not be invoked to decide disputes as to who should be the guardian of a child. They are properly adjudicated upon in an application under the Guardians and Wards Act as that is the ordinary remedy.