Madras High Court
N.Marie Claude vs State Of Tamil Nadu on 28 April, 2023
Crl.A.No.368 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
H.C.P.No.368 of 2023
N.Marie Claude ... Petitioner/
Father of the detenu
Vs.
1. State of Tamil Nadu
Rep. By the Commissioner of Police
Tambaram Police Commissionerate
Tambaram
2. State of Tamil Nadu
Rep. By the Inspector of Police
T-19, Kelambakkam Police Station
Pallikaranai Police District
Tambaram City
3. Marie Wilson. N ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of habeas corpus directing the respondents to produce
the person and body of the petitioner's minor daughter namely 'xxx', aged
about 2 years, who is under the illegal custody of Respondent No.3 and
1/29
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hand over her to the petitioner.
For Petitioner : Mr.B.Satish Sundar
for Mr.N.Balaji
For Respondents : Mr.R.Muniyapparaj
Addl. Public Prosecutor for R1 & R2
Mr.R.John Sathyan, Senior Counsel
and Mr.V.Raghavachari, Senior Counsel
for Ms.Reshmi Christy for R3
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This order will now dispose of the captioned matter.
2. This order has to be read in conjunction with and in continuation of
earlier proceedings made in the previous listings on 10.03.2023, 21.03.2023,
03.04.2023, 11.04.2023 and 17.04.2023, which read as follows:
Proceedings dated 10.03.2023
'Mr.R.Muniyapparaj, learned Additional Public Prosecutor
takes notice on behalf of Respondents 1 and 2.
2. M/s.Reshmi Christy, learned counsel accepts notice on
behalf of the 3rd respondent.
3. It is submitted that the 3rd respondent is having the custody
of the child which was given in adoption through process of Court.
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4. Hence, the 3rd respondent is directed to appear before this
Court along with the minor child Baby M.Anna Amirthim aged about
2 years before this Court on 17.03.2023.
Post on 17.03.2023.'
Proceedings dated 21.03.2023
'In continuation to the earlier order passed by this Court on
10.03.2023, the matter was listed for hearing today. The petitioner and
his spouse Mrs.Careline Claude were present. The third respondent was
also present along with the child xxx (we are masking the name).
2. For proper appreciation of the case, we deem it fit to present it
by way of dates and events herein below:
Sl.No. Date Event
1. 15.01.1978 Date of Birth of the petitioner (45 years)
2. 09.10.1979 Date of Birth of the third respondent (43
years)
3. 13.10.2019 Petitioner and his spouse were blessed with
twin children (Sebastian Paul and Saara
Marilyn)
4. 05.11.2019 The date on which the birth certificate was
given by the Chennai Corporation for the
twin children
5. 29.01.2021 Date of Birth of the child xxx
6. 24.06.2021 The deed of handing over the child xxx to the
petitioner and his spouse
7. 24.06.2021 Pre-Adoption Foster Care undertaking given
by petitioner and his spouse in which third
respondent also stood as one of the witness.
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Sl.No. Date Event
8. 31.08.2021 Petition filed before the learned Principal
District Judge, Salem under Section 58(3) of
the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016) read with
Regulations 12(2) of the Adoption
Regulations in Adoption O.P.No.214 of
2021.
9. 16.03.2022 Fair and Decreetal order passed by the
learned Principal District Judge, Salem
allowing the O.P.
10. 03.12.2022 The date of the alleged abduction of the
child xxx by the third respondent from
petitioner and his spouse from Marina Mall,
E.C.R. Road.
11. 23.02.2023 Complaint given by the petitioner to the
Inspector of Police, T-19, Kelambakkam
Police Station, taken on file in C.S.R.No.181
of 2023.
12. 03.03.2023 Filing of the captioned Habeas Corpus
Petition
3. We heard the learned counsel for the petitioner and also the
learned Senior Counsel appearing on behalf of the third respondent.
Before going into the merits of this case, we are inclined to call for the
report of the Probation Officer. This in view of the fact that when the
Adoption O.P. was allowed, one of the condition that was imposed is as
follows:
'4. that the concerned Probation Officer has to submit
his report with regard to bring up of the Child by the
Prospective Adoption Parents once in 6 months for two years;'
4. Registry is directed to call for the reports filed by the
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Probation Officer before the learned Principal District Judge, Salem
and the same shall be placed before us during the next date of hearing.
5. Let the petitioner, his spouse and the third respondent be
present before this Court along with the child xxx.
6. Registry to requisition the records sought for from the learned
Principal District Judge's Court, Salem forthwith.
7. List on 29.03.2023.'
Proceedings dated 03.04.2023
'Read this in conjunction with and in continuation of earlier
proceedings made in the listing on 21.03.2023 which reads as follows:
'In continuation to the earlier order passed by this
Court on 10.03.2023, the matter was listed for hearing
today. The petitioner and his spouse Mrs.Careline Claude
were present. The third respondent was also present along
with the child xxx (we are masking the name).
2. For proper appreciation of the case, we deem it
fit to present it by way of dates and events herein below:
Sl.No. Date Event
1. 15.01.1978 Date of Birth of the petitioner (45 years)
2. 09.10.1979 Date of Birth of the third respondent (43 years)
3. 13.10.2019 Petitioner and his spouse were blessed with twin
children (Sebastian Paul and Saara Marilyn)
4. 05.11.2019 The date on which the birth certificate was given
by the Chennai Corporation for the twin children
5. 29.01.2021 Date of Birth of the child xxx
6. 24.06.2021 The deed of handing over the child xxx to the
petitioner and his spouse
Pre-Adoption Foster Care undertaking given by
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Sl.No. Date Event
7. 24.06.2021 petitioner and his spouse in which third
respondent also stood as one of the witness.
8. 31.08.2021 Petition filed before the learned Principal District
Judge, Salem under Section 58(3) of the Juvenile
Justice (Care and Protection of Children) Act,
2015 (2 of 2016) read with Regulations 12(2) of
the Adoption Regulations in Adoption O.P.No.214
of 2021.
9. 16.03.2022 Fair and Decreetal order passed by the learned
Principal District Judge, Salem allowing the O.P.
10. 03.12.2022 The date of the alleged abduction of the child xxx
by the third respondent from petitioner and his
spouse from Marina Mall, E.C.R. Road.
11. 23.02.2023 Complaint given by the petitioner to the
Inspector of Police, T-19, Kelambakkam Police
Station, taken on file in C.S.R.No.181 of 2023.
12. 03.03.2023 Filing of the captioned Habeas Corpus Petition
3. We heard the learned counsel for the petitioner
and also the learned Senior Counsel appearing on behalf
of the third respondent. Before going into the merits of this
case, we are inclined to call for the report of the Probation
Officer. This in view of the fact that when the Adoption
O.P. was allowed, one of the condition that was imposed is
as follows:
'4. that the concerned Probation Officer has
to submit his report with regard to bring up of the
Child by the Prospective Adoption Parents once in
6 months for two years;'
4. Registry is directed to call for the reports filed by
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the Probation Officer before the learned Principal District
Judge, Salem and the same shall be placed before us
during the next date of hearing.
5. Let the petitioner, his spouse and the third
respondent be present before this Court along with the
child xxx.
6. Registry to requisition the records sought for
from the learned Principal District Judge's Court, Salem
forthwith.
7. List on 29.03.2023.'
To be noted, there was a listing on 29.03.2023 but that was not a
productive hearing and the matter got re-notified.
2. Today, with the consent of both sides i.e., petitioner,
petitioner's spouse and third respondent, we deem it appropriate to refer
the matter to mediation. Mediation shall be by Ms.D.Nagasaila,
Advocate {Old No.123, New No.255, 3rd Floor, Hussaina Manzil,
Angappan Naicken Street, Parrys, Chennai 600 001. (Mobile No:94440
83494) (E-mail: [email protected])}. It is open to the learned
Mediator to hold sittings either in her office or in the Tamil Nadu
Mediation and Conciliation Centre under the aegis of this Court
('TNMCC' for brevity) or any other neutral venue subject to the
convenience of all concerned. If there is any cost factor in this regard,
the same shall be paid/absorbed in equal moieties by the petitioner and
the third respondent.
3. Be that as it may we deem it appropriate to fix an initial
honorarium of Rs.1,00,000/- for the learned mediator which shall be
paid in equal moieties (Rs.50,000/- by the petitioner and Rs.50,000/- by
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the third respondent).
4. The aforementioned earlier order dated 21.03.2023
captures the crux and gravamen of the issue on hand and therefore that
shall form basis for the mediation. However, we hasten to add that it is
open to both sides to participate in the mediation and produce anything
in their support as we notice that multiple documents/agreements have
been placed before us by way of typed set of papers by both sides.
Suffice to say that elements of settlement are sighted.
5. We request the learned mediator to send a mediation
report by a fortnight from today i.e., by 17.04.2023.
6. Be that as it may, as regards the GAWA Court order i.e.,
Salem District Judge's order adverting to clause 4 of the operative
portion paragraph, learned counsel for petitioner submits that the
Probation Officer is now calling upon the petitioner and his spouse to
produce xxx (to be noted we have masked the name). Considering the
trajectory the matter is taking before us, we deem it appropriate to say
that the Probation Officer shall lay her hands off in this regard till the
listing of captioned matter on 18.04.2023.
7. We also direct the learned Additional Public Prosecutor to
produce the CC TV footage regarding the alleged incident on
03.12.2022 at the Marina Mall, Old Mahabalipuram Road, Chennai or
any other material in this regard. While we have requested for
mediation report by a fortnight hence, this Bench makes it clear that
listing of this matter one week hence will be solely for the Prosecutor to
respond in this regard and the listing thereafter will be on 18.04.2023.
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8. List on 10.04.2023.'
Proceedings dated 11.04.2023
'Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 03.04.2023.
2. Today, adverting to earlier proceedings, learned
Prosecutor submits that complaint itself was given on the eighty
first day of the alleged occurrence and there is difficulty in getting
the CCTV footage.
3. Let Prosecutor file this by way of a report and place it
before us in the next listing.
4. Registry to send a copy of the earlier proceedings dated
03.04.2023 and the proceedings made today to the learned
Mediator today forthwith.
List on 17.04.2023.'
Proceedings dated 17.04.2023
'Read this in conjunction with and in continuation of earlier
proceedings made in the previous listing on 11.04.2023.
2. Today, Mr.B.Satish Sundar, learned Counsel representing the
counsel on record for petitioner, Mr.R.Muniyapparaj, learned State
Additional Public Prosecutor for respondents 1 and 2 (official
respondents) and Ms.Reshmi Christy, learned counsel for third
respondent are before us.
3. As regards learned Prosecutor, a further status report dated
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17.04.2023 together with typed set of papers running to 8 pages has
been placed before us. This will be considered in due course. To be
noted, learned Prosecutor is instructed by second respondent.
4. As regards the Mediation, we are informed that learned
Mediator was feeling under the weather and has now fixed first sitting
on 20.04.2023. We request the learned Mediator to send a report to this
Court by 26.04.2023.
5. List on 27.04.2023. '
3. As regards the mediation exercise which was explored with the
consent of the parties, learned Mediator has sent a report to this Court dated
26.04.2023 and a perusal of this terse and simple report makes it clear that
mediation was held on two days, namely 20.04.2023 and 24.04.2023 but no
settlement could be arrived at though the first sitting lasted the whole day
(11.00a.m to 07.00p.m). Therefore, the captioned matter is back in this
Court and a legal drill has become inevitable.
4. The chronology captured by this Bench in the proceedings dated
21.03.2023 is not disputed by both sides i.e., petitioner and third
respondent. However, there might be some other dates and events that
happened on such dates which may be of relevance and there will be
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reference to the same elsewhere infra in this order.
5. The aforementioned proceedings made in previous listings of
captioned HCP have captured the crux and gravamen of the issue before this
Habeas Corpus Court and it is also telltale qua the trajectory the matter has
taken before this Bench.
6. Before plunging into the Habeas Corpus legal drill, we deem it
appropriate to remind ourselves of Tejaswini Gaud case [Tejaswini Gaud
and others Vs. Shekhar Jagdish Prasad Tewari and Others reported in
2019 SCC OnLine 713] which also on facts pertains to custody of a minor
child as between guardians at loggerheads wherein Hon'ble Supreme Court
held that Habeas Corpus Petitions in cases of this nature are maintainable.
It was held that Habeas Corpus proceedings is a medium through which the
custody of the child is addressed to the discretion of a Court and Habeas
corpus is a prerogative writ which is an extraordinary remedy and the writ is
issued in the circumstances of a particular case.
7. At the outset we need to make it clear that as captured in the
proceedings made in the 21.03.2023 listing (extracted and reproduced
supra) a petition was filed by petitioner herein and his spouse on the file of
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the learned Principal District Judge, Salem under Section 58(3) of the
'Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)'
read with Regulations thereunder being '2017 regulations', which shall
hereinafter be referred to as 'JJ Act' and 'JJ Adoption Regulations'
respectively for the sake of brevity and convenience. After an exhaustive
examination of oral and documentary evidence and after an assessment of
suitability of the petitioner and his spouse, the JJ Court has given the
absentee in adoption to the petitioner and his spouse and has declared the
petitioner and his spouse as parents of the child 'xxx' which is the fulcrum
of the exercise on hand.
8. To be noted, Date of Birth of the child 'xxx' is 29.01.2021 and as
on date, the child is two years and three months old.
9. Mr.B.Satish Sundar, learned counsel for petitioner took us through
the proceedings which culminated in the 16.03.2022 order of JJ Court and
submitted that online application made to 'Central Adoption Resource
Authority' ['CARA' for the sake of brevity], Ministry of Women and Child
Development, Government of India, by the petitioner and his spouse led to
appointment of a 'Specialized Adoption Agency' ['SAA' for the sake of
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brevity and convenience], namely 'Cluny Childrens Home, Pondicherry' and
a thorough study of suitability of the petitioner and his spouse was made.
Learned counsel drew our attention to a report where application of
'Prospective Adoptive Parents' ['PAP' for the sake of brevity] was
scrutinized. In this report, SAA has strongly recommended the petitioner
and his spouse for adoption. The relevant portion of this report to which
our attention was drawn reads as follows:
'Yes, I strongly recommend this couple for adoption. They are
physically mentally and financially strong for adoption. They are very
understanding towards each other and very loving couples. They
adjust and adopt themselves to any situations, life and people. They
are very jovial but very patient and kind in their dealings with others.
They are very confident and happy in their decisions and prepared to
take any risk that come on the way and the whole family is in full
support to them. They have seen other parents who have adopted
children while going for adoption and they know the difficulties that
would come on the way. They are very positive in their plan and feel
that the child will grow up well as their child and the child will get
enough love and affection as their child from them and all family
members. The while family is eagerly waiting for the child, to have a
new life in their family. The family is a happy family. So, I
recommend Mr.Marie Claude.N and Mrs.Gareline Claude to bless
them with a child from the age group of 0-2 years of any gender who
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is physically and mentally sound.'
10. Learned counsel further pointed out that the third respondent has
signed as first witness in the Deed of Handing Over and Taking Over of
Minor Child (dated 24.06.2021) between Trust concerned and petitioner/his
spouse. It was also pointed that even in the Pre-adoption Foster Care
undertaking dated 24.06.2021 signed by the petitioner and his spouse, the
third respondent has signed as a witness. Therefore, the third respondent
was privy to the proceedings before JJ Court and he is fully aware of the
proceedings as well as orders of the JJ Court is his say. It was also
submitted that the petitioner, petitioner's spouse and third respondent were
all one happy family till about August 2022 when certain issues touching
upon immovable properties and a family Trust erupted. It was pointed that
there is a civil suit also in this regard but it may not necessary to delve into
those facts, dilate and be detained by those facts owing to the nature of the
exercise on hand and it will suffice to say that relationship between the
siblings (petitioner and third respondent) turned sour in August of 2022.
Some time in August 2022, the petitioner and his spouse moved out (from
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the common roof with third respondent) along with the minor child 'xxx' is
learned counsel's say. It was pointed out that the issue between the
petitioner/petitioner's spouse on one side and third respondent on the other
side pertain to immovable property, Trust etc., and it has nothing to do with
the minor child.
11. Learned counsel for petitioner asserted that as per the orders of JJ
Court, the petitioner and his spouse are parents of the minor child and they
continue to have rights. On 02.12.2022, a program was organized by
CARA, photographs taken therein with the petitioner/petitioner's spouse
and child 'xxx' as participants have been placed before us to demonstrate
that 'xxx' minor child was with petitioner/petitioner's spouse even as of
02.12.2022. Photographs showing petitioner/petitioner's spouse with 'xxx'
minor child addressing gathering as adoptive parents was shown to the
Bench and it was emphasized that (a) the child is happy, (b)
petitioner/petitioner's spouse are successful adoptive parents even according
to 'CARA' Government of India and (c) all this is even after August 2022
i.e., after relationship with third respondent turned sour and
petitioner/petitioner's spouse moved out separately.
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12. When things stood as above, on 03.12.2022, when the petitioner
and his wife had taken the minor child to a Mall in Chennai, the third
respondent compelled them to let him take the minor child for two days on
the promise that he would bring her back home. The petitioner and his wife
felt pressurized and agreed but thereafter the third respondent did not
honour the promise resulting in the petitioner lodging a police complaint on
23.02.2023 (after much persuasion and efforts) is learned counsel's further
say. To be noted, this police complaint in T-19 Kelambakkam Police Station
is pending vide C.S.R.No.181 of 2023.
13. As regards the official respondents, learned Additional Public
Prosecutor has placed before us a status report pursuant to our earlier
proceedings and submitted that they are unable to retrieve the CCTV
footage from the Mall concerned on 03.12.2022.
14. As regards the third respondent, counsel on record was led by two
Senior counsel Mr.V.Raghavachari who was physically present in Court and
Mr.R.John Sathyan, who joined on a video-conferencing platform. To be
noted, this is a hybrid hearing.
15. Learned Senior counsel for the third respondent submitted that
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entire exercise before the JJ Court was undertaken for the purpose of
adoption of minor child 'xxx' by the third respondent as there was an
apprehension that third respondent may not be eligible to be a PAP
(Prospective Adoption Parent) in the light of Section 57(4) of JJ Act, which
says that a single male is not eligible to adopt a girl child. Pausing here for
a moment, it is necessary to capture another undisputed fact which emerged
in the hearing. Learned Senior counsel for third respondent submitted that
third respondent was married in 1999 and divorced through a Court order in
2012, from the third respondent's wedlock (between 1999 and 2022), two
girl children were born in 2000, 2003 and from 2012 i.e., from the date of
divorce, two children who were then minors were in the custody of third
respondent's former wife with visitation rights to the third respondent. It is
pointed out that both the daughters are now majors.
16. In this view of the matter, it is the categoric and emphatic
submission of learned counsel for third respondent that the petitioner and
his spouse, being petitioners in JJ Court was deviced only to enable the
third respondent to become an adoptive parent of minor child 'xxx' as it was
believed that there is a bar for third respondent i.e., legal bar qua adoption
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of a girl child owing to Section 57(4) of JJ Act which reads as follows:
'57.Eligibility of prospective adoptive parents.
(1) xxxxx
(2) xxxxx
(3) xxxxx
(4) A single male is not eligible to adopt a girl child.'
17. Learned Senior counsel submitted that aforementioned device is
by consent and therefore, there cannot be any illegal custody. Learned
Senior counsel also placed before us certain documents which according to
third respondent demonstrate the care given to the minor child 'xxx' from
24.06.2021 to 19.02.2022 but these documents are disputed by the
petitioner's counsel. A video clipping regarding Baptism and Baptism
certificate is also placed before us but this is also disputed by the petitioner
counsel. It was contended by learned Senior counsel that the petitioner is
now trying to monetize the situation i.e., make money out of the exercise as
the good relationship between the petitioner and third respondent, who are
siblings, had fallen apart owing to immovable properties and family Trust
disputes. In this view of the matter, learned Senior counsel pressed into
service Syed Saleemuddin case [Syed Saleemuddin Vs. Dr.Rukhsana and
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Others reported in (2001) 5 SCC 247] to say that in a writ of Habeas
Corpus for custody of minor children, the principal consideration for the
Court is to ascertain whether the welfare of the children requires that the
present custody should be changed and children should be left in the care
and custody of someone else.
18. Mr.R.John Sathyan, the other Senior counsel placed before us
two unreported orders in H.C.P.No. 2085 of 2021 [S.Mohanapriya Vs. The
Chairperson/member, Child Welfare Committee and Others] and
H.C.P.No.2086 of 2021 [R.Tamilselvi Vs. The Chairperson/member, Child
Welfare Committee and Others] both dated 27.01.2022 to say that even this
Court (HCP Court) can declare guardianship and in a matter of custody of
children in a habeas corpus legal drill welfare of the children is paramount
consideration.
19. By way of reply, learned counsel for petitioner stoutly disputed
the allegation of demand of money by the petitioner and his spouse to allow
the third respondent to continue to have the custody of the minor child. It
was also pointed out that the petitioner and his spouse have twin biological
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children born on 13.10.2019 and all the three children i.e., twin biological
children and minor child 'xxx', have been living happily as siblings under
the care and custody of petitioner/petitioner's spouse.
20. We carefully considered the rival submissions and the case laws.
The following points emerge:
(i) There is an order of a competent Court (JJ Court) which
declares the petitioner and petitioner's spouse as parents of (now) two
years and three months old minor child 'xxx';
(ii) The petitioner and his spouse were working as Professors
in a College and are now having their own business. As regards the
welfare of the child there is nothing to suggest that
petitioner/petitioner's spouse with their twin biological children have
fallen short of any requirement;
(iii) In continuation of above, to be noted, one limb of the
operative portion of the order of the JJ Court reads as follows:
'4.that the concerned Probation Officer has to submit his
report with regard to bring up of the Child by the Prospective
Adoption Parents once in 6 months for two years.'
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(iv) Owing to the provisions of JJ Act, third respondent
appears to be not eligible to adopt a girl child [Section 57(4)]. This is
a statutory bar. As would be evident from proceedings made in
earlier listings (extracted and reproduced supra), this Bench called for
records from JJ Court and there is nothing adverse therein. We find
that even as regards welfare of the child, we do not find anything
averse or unacceptable for the minor child being with the petitioner
and his wife. To be noted, petitioner, petitioner's wife and their two
biological twin children come across as a happy family i.e., a couple
and twin children and they are supported by a Court order which
declares them as parents. Therefore, on a demurrer, even if the
allegation of petitioner and his spouse demanding money to leave the
child in the custody of third respondent is true, this Court cannot
endorse such a course as it is contrary to the statute. Equally, that
cannot be a ground to allow the minor child to be in the custody of
third respondent when there is no contra indicia that welfare of the
child will be compromised if it is with the petitioner and his spouse.
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(v) The entire issue that has unfurled before us is clearly a
product of disputes between two siblings i.e., petitioner and third
respondent as regards immovable property, a Trust etc., which has
nothing to do with the minor child but the minor child appears to
have been caught in the crossfire;
(vi) As regards Tejaswini Gaud case reported in 2019 SCC
OnLine 713, we respectfully follow the Hon'ble Supreme Court
which says that a Habeas Corpus Petition is maintainable in such
child custody matters. As regards the unreported orders in
S.Mohanapriya case and R.Tamilselvi case, both are dated
27.01.2022, we find that those cases are clearly distinguishable on
facts as those are not cases where there was any order from a
competent JJ Court unlike the case on hand. In this regard, we
remind ourselves of declaration of law in Padma Sundara Rao case
law [Padma Sundara Rao Vs. State of Tamil Nadu reported in
(2002) 3 SCC 533: 2002 SCC OnLine SC 334] and the most relevant
paragraph is paragraph 9, which reads as follows:
'9.Courts should not place reliance on decisions
without discussing as to how the factual situation fits in
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with the fact situation of the decision on which reliance is
placed. There is always peril in treating the words of a
speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that
judicial utterances are made in the setting of the facts of a
particular case, said Lord Morris in Herrington v. British
Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL)
[Sub nom British Railways Board v. Herrington, (1972) 1
All ER 749 (HL)]] . Circumstantial flexibility, one
additional or different fact may make a world of difference
between conclusions in two cases'
To be noted, Padma Sundara Rao is a judgment rendered by
Hon'ble Constitution Bench and therefore we choose to use the
expression 'declaration of law' in place of a simple 'ratio';
(vii) As regards Syed Saleemuddin case reported in (2001)
5 SCC 247 pressed into service by the Senior counsel for third
respondent, we only say that by applying Padma Sundara Rao
principle, we find that Syed Saleemuddin case is not one where
custody in the hands of one party was illegal. Syed Saleemuddin
on facts was a case of tussle between two biological parents. In
any event, in paragraph 11 of Syed Saleemuddin, Hon'ble
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Crl.A.No.368 of 2023
Supreme Court has clearly laid down that in a habeas corpus drill,
the principal consideration for the Court is to ascertain whether
the custody of the children can be said to be unlawful or illegal
and whether the welfare of the children requires the present
custody to be changed and the children being left in the care and
custody of somebody else has been set out an option. In the case
on hand, custody by third respondent is clearly illegal and
therefore, if Syed Saleemuddin principle is applied also, it is clear
that third respondent should hand over the custody to the
petitioner and his spouse. We have taken into account welfare of
the child and we have already found that the welfare of the child is
not impaired if the child is with the petitioner and his spouse
(together with their two twin biological children). This Bench
finds that there are adequate reasons for not allowing custody in
the hands of third respondent as it is (a) clearly illegal on the teeth
of orders of a competent JJ Court (it is even contemptuous) (b)
petitioner/petitioner's spouse have not in any matter failed to
provide for welfare of minor child and (c) there is a statutory bar
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Crl.A.No.368 of 2023
for third respondent to be a adoptive parent of a girl child [Section
57 (4) of JJ Act] and accepting the argument that JJ Court
proceedings were deviced to circumvent this bar will tantamount
to endorsing an exercise to circumvent law.
21. This Bench is of the considered view that when there is an order
by a Competent Court declaring the petitioner and his spouse as parents of
the minor child 'xxx', the custody of the minor child 'xxx' with the third
respondent cannot but be construed as custody which is not legal. To be
noted, the judgment and decree of the competent JJ Court is now operating.
This Bench finds the argument that an OP was filed as a method devised to
get over a legal bar of adoption qua third respondent in the light of Section
57(4) of JJ Act is clearly unacceptable. There is a faint mention in the
counter affidavit of third respondent that a Kancheepuram Court has been
moved but the averments are bare and bald. Therefore, this Bench finds that
such an argument cannot be sustained.
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Crl.A.No.368 of 2023
22. In the light of the narrative, discussion and dispositive reasoning
supra, we make the following order:
(a) This Habeas Corpus Petition is allowed and custody of
Minor child 'xxx' (name masked) {which is subject matter of
judgment and decree dated 16.03.2022 made in Adoption
O.P.No.214 of 2021 on the file of Principal District Judge,
Salem}, which is now two years and three months old, shall be
with the petitioner and petitioner's spouse and third respondent
shall handover the child forthwith to petitioner and petitioner's
spouse who are present in Court. To be noted, third respondent
and minor child are also present in Court;
(b) The jurisdictional police and law enforcing authorities
shall do the needful to ensure that custody of minor child 'xxx' is
handed over to petitioner/petitioner's spouse forthwith by third
respondent.
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Crl.A.No.368 of 2023
(c) From the earlier proceedings made in the listing on
03.04.2023 (extracted and reproduced supra), more particularly
paragraph 6 thereat, it will be clear that we had granted an
interim protection saying that Probation Officer shall lay his/her
hands off for the present as the Probation Officer had been
pursuing the matter with the petitioner for a report. This interim
protection is now lifted and the Probation Officer will proceed in
accordance with law as per the order of competent Court.
(M.S.,J.) (M.N.K.,J.)
28.04.2023
Index : Yes
Speaking order
Neutral Citation : Yes
gpa
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Crl.A.No.368 of 2023
To
1. The Commissioner of Police
Tambaram Police Commissionerate
Tambaram
2. State of Tamil Nadu
Rep. By the Inspector of Police
T-19, Kelambakkam Police Station
Pallikaranai Police District
Tambaram City
3. The Public Prosecutor
Madras High Court, Chennai
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Crl.A.No.368 of 2023
M.SUNDAR, J.,
and
M.NIRMAL KUMAR, J.,
gpa
H.C.P.No.368 of 2023
28.04.2023
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