Madras High Court
Andrew vs The Commissioner Of Police on 11 August, 2021
H.C.P.No.SR2102 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Ms. Justice R.N.MANJULA
H.C.P.No.SR2102 of 2021
Andrew .. Petitioner
Vs.
1.The Commissioner of Police,
Salem City,
Salem – 636 006.
2.State represented by
The Inspector of Police,
Hasthampatty,
Salem – 636 006.
3.Merlin Beninga Selvaraj .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Habeas Corpus directing the second respondent to produce the
petitioner's two female minor children viz., Jessica (Passport Republic of
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H.C.P.No.SR2102 of 2021
Singapore No.E2665265L) and Jenita (Passport Republic of Singapore
No.E5002956C), born on 06.08.2005, aged about 15½ years and
14.11.2008, aged about 12 years and 2 months, respectively, before this
Court from the illegal custody of the third respondent and hand over to the
petitioner.
For Petitioner : Mr.K.Jayabalan
ORDER
[Order of the Court was made by P.N.PRAKASH, J.]
This habeas corpus petition has been filed seeking to direct the
second respondent to produce the petitioner's two female minor children
viz., Jessica (Passport Republic of Singapore No.E2665265L) and Jenita
(Passport Republic of Singapore No.E5002956C), born on 06.08.2005, aged
about 15½ years and 14.11.2008, aged about 12 years and 2 months,
respectively, before this Court from the illegal custody of the third
respondent and hand over to the petitioner.
2. It is the case of the petitioner that he got married to Merlin
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H.C.P.No.SR2102 of 2021
Beningna Selvaraj, third respondent herein, on 24.05.2004 in Salem, Tamil
Nadu and through the wedlock, he has two children viz., Jessica and Jenita,
both born in Singapore and hence, they are Singapore citizens.
3. According to the petitioner, on account of marital discord, he
got estranged from his wife and therefore, he moved the Family Court,
Singapore, for custody of his two children and an ex parte order has been
passed by the Family Court, Singapore, on 11.01.2017 directing the third
respondent to give the custody of the two children to the petitioner.
4. While that being so, the petitioner has filed the present habeas
corpus petition seeking custody of the two children.
5. The Registry of this Court has raised a doubt with regard to the
maintainability of this petition and hence, this matter has been posted in the
earlier occasions under the caption “for maintainability'. Since there was no
representation for the petitioner on 14.07.2021, the same has been posted
today under the caption “for dismissal”.
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H.C.P.No.SR2102 of 2021
6. Heard Mr.K.Jayabalan, learned counsel for the petitioner, who
placed strong reliance on various judgments of the Supreme Court, wherein,
it has been held that when one of the spouses brings their child to India in
violation of the Foreign Court's order, a writ of habeas corpus petition can
be maintained. One can have no quarrel with the law laid down by the
Supreme Court in those judgments. However, in this case, the third
respondent had left Singapore with her two children even before the order
of the Family Court dated 11.01.2017, as could be seen from paragraph no.4
of the order, which reads as follows:
“4. That the Defendant shall hand over to
the Plaintiff's solicitors, the children's unexpired
passports, visas, birth certificates and other travel
documents forthwith, upon the children's arrival in
Singapore. The plaintiff's solicitors shall hold these
documents in their custody pending final resolution
of this application as well as the parties' divorce
and ancillary matters in FC/D 5697 of 2015. The
Plaintiff's solicitors shall not release these
documents to the Plaintiff or to the Defendant,
without an Order of Court. ...(emphasis supplied)”
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H.C.P.No.SR2102 of 2021
7. In other words, in the absence of the third respondent and two
children in Singapore, the petitioner has filed a custody application in
Singapore Family Court and got an ex parte order, which, he wants to
execute through this habeas corpus petition. That apart, the petitioner is not
in India and he continues to be in Singapore.
8. In view of the above discussion, the objection raised by the
Registry is upheld. However, liberty is given to the petitioner to file a fresh
application as and when he comes to India.
Hence, this habeas corpus petition is rejected at the SR stage itself.
(P.N.P.,J.) (R.N.M.,J.)
11.08.2021
nsd
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H.C.P.No.SR2102 of 2021
P.N.PRAKASH,J.
and
R.N.MANJULA,J.
nsd
To
1.The Commissioner of Police,
Salem City,
Salem – 636 006.
2.The Inspector of Police,
Hasthampatty,
Salem – 636 006.
3.The Public Prosecutor,
High Court, Madras.
H.C.P.No.SR2102 of 2021
11.08.2021
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