Madras High Court
Sasikala vs The Superintendent Of Police on 26 June, 2023
H.C.P.No.1081 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.1081 of 2023
Sasikala
D/o.Ravi .. Petitioner
Vs.
State rep. by its
1. The Superintendent of Police
Office of the District Superintendent
Namakkal District.
2. The Inspector of Police
Mohanur Police Station
Namakkal District.
3. Panneer Selvam
S/o.Kuruvan
4. Rajammal
W/o.Kuruvan
5. Vijaybasker
6. Selvi
W/o.Vijayabasker ..Respondents
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H.C.P.No.1081 of 2023
Petition filed under Article 226 of the Constitution of India praying for
issuance of a writ of habeas corpus to direct the respondents 1 and 2 to
produce the body or person of the petitioner's minor children namely, (1)
xxxxx, s/o.Panneer Selvam, aged about 5 years, (ii) xxxxx, S/o.Panneer
Selvam, aged about 3 years, before this Hon'ble Court who is under the
illegal custody of 3rd to 6th respondents and hand over them into the
petitioner's custody, who is the natural guardian of the children.
For Petitioner : Mr.P.Saravana Sowmiyan
For Respondents : Mr.E.Raj Thilak
Additional Public Prosecutor
For R1 and R2
Mr.S.Senthilvel
representing Mr.D.Chandrasekar
for R3
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This order will now dispose of the captioned 'Habeas Corpus Petition'
['HCP' for the sake of convenience and brevity].
2. Factual matrix is that the petitioner was married to third respondent
(to be noted, third respondent is a private respondent) on 29.05.2017; that
from this wedlock two children i.e., male children were born; that one child
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H.C.P.No.1081 of 2023
was born on 24.05.2018 and the other child was born on 01.04.2020 [we
shall be referring to these two children as 'absentees' in plural for the sake of
convenience and clarity]; that there was matrimonial discord between the
petitioner and third respondent; that the petitioner filed a petition for divorce
vide F.C.O.P.No.250 of 2020 on the file of Family Court, Namakkal which
after full contest i.e., after full trial, granted divorce in and by judgment and
decree dated 14.12.2022; that this judgment and decree has become final;
that it is now the case of the petitioner that on 10.06.2023, respondent No.3
along with respondent No.4 (third respondent's mother) and two other
relatives namely, respondents 5 and 6 forcibly took away the absentees who
were playing in petitioner's house; that the petitioner has lodged a complaint
with the jurisdictional police on the same day; that the captioned HCP has
now been filed under such circumstances in this Court on 20.06.2023.
3. Issue notice to respondents 1 to 3.
4. Mr.E.Raj Thilak, learned State Additional Public Prosecutor accepts
notice for respondents 1 and 2. Mr.D.Chandrasekar, (Enrol. No.1804/2004)
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H.C.P.No.1081 of 2023
with address for service at No.9/5, Radial House, Anna Nagar West
Extension, Chennai-600 101 (Mobile No.9710555657) accepts notice for
third respondent.
5. We find that the captioned HCP can be disposed of without issuing
notice to respondents 4 to 6 and therefore, we are taking up the main HCP.
To be noted, we will be preserving all the rights and contentions of
respondents 4 to 6.
6. Learned Prosecutor submits on instructions that preliminary
investigation brings to light that it appears to be a matter of matrimonial
discord as between petitioner and third respondent and absentees appear to
be caught in this matrimonial discord.
7. Learned counsel for third respondent submitted that third
respondent has already filed a petition in jurisdictional GAWA Court vide
G.W.O.P.No.131 of 2023 and E-Courts service download in this regard is as
follows:
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8. Aforementioned G.W.O.P.No.131 of 2023 appears to have been
filed with a prayer to appoint third respondent as guardian and other reliefs
qua absentees but considering the scope of legal drill on hand we do not
want to elaborate on the same. It will suffice to say that G.W.O.P.No.131 of
2023 has been filed inter alia under Sections 7 and 10 of GAWA. To be
noted, 'GAWA' stands for 'Guardians and Wards Act, 1890';
9. As it is a case of a tussle between two parents (who are estranged
and divorced by a Court order) i.e., a tussle for custody of two minor
children (absentes) and as the jurisdictional GAWA Court has already been
moved, we make the following order:
(a) All questions are left open as regards custody of
absentees as between the petitioner and third respondent;
(b) All rights and contentions of the petitioner and
respondent No.3 are preserved for other proceedings in other
Court including GAWA Court;
(c) Learned counsel for third respondent has served one
set of papers in G.W.O.P.No.131 of 2023 on the learned
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H.C.P.No.1081 of 2023
counsel for the petitioner;
(d) Learned counsel for petitioner accepts notice for the
petitioner in G.W.O.P.No.131 of 2023;
(e) We request the learned GAWA Court judge to advance
the hearing from 24.07.2023 to 03.07.2023 by consent qua
petitioner counsel and 3rd respondent and both sides agree /
consent that they waive notice in this regard;
(f) All rights of respondents 4 to 6 are preserved as
regards subject matter of captioned HCP including rights when
jurisdictional police proceeds with complaint pertaining to
episode said to have happened on 10.06.2023;
(g) We make it clear that all questions i.e., all rights and
contentions are left open including interim prayer for learned
GAWA Court Judge to decide the matter on its own merits and
in accordance with law without this order serving either as an
impetus or as an impediment as this order has been made for
the limited purpose of giving closure to HCP legal drill;
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H.C.P.No.1081 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
mk
Captioned HCP disposed of as closed in the aforesaid manner albeit
preserving all the rights and contentions of all parties concerned in the
aforesaid manner. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
26.06.2023
Index : Yes
Speaking
Neutral Citation : Yes
mk
To
1. The Superintendent of Police
Office of the District Superintendent
Namakkal District.
2. The Inspector of Police
Mohanur Police Station
Namakkal District.
3. The Public Prosecutor
High Court, Madras.
H.C.P.No.1081 of 2023
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