IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.03.2010
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE C.S.KARNAN
H.C.P.No.457 of 2010
A.Vijay Augustine ..Petitioner
`Vs.
1. The Sub Inspector of Police,
R-5, Virugambakkamm Police Station,
Chennai.
2. Mrs.Nandini
3. Mr.Sivakumar. . Respondents
Petition filed under Article 226 of the Constitution of India to issue a writ of Habeas Corpus to issue a Writ of Habeas Corpus directing the respondents herein to produce the body of the petitioner's minor son namely "Tarun Vaarin" aged about 5 years son of Vijay Augustine before the Court.
For Petitioner : Mr.B.Vijayakumar
For Respondents : Mr.V.R.Balasubramanian, A.P.P. for R1
O R D E R
(The order of the Court was made by M.CHOCKALINGAM, J.)
Invoking the writ jurisdiction of this Court one Mr.B. Vijay Augustine has brought forth this petition for production of his minor son Tarun Vaarin, aged 5 years.
2. The Court perused the affidavit filed in support of the petition and heard the learned counsel for the petitioner and the learned Additional Public Prosecutor.
3. As could be seen from the averments made, it is not in controversy that the marriage between the petitioner and the second respondent took place in the year 2004 and a child was born. They lived together till 2005 and thereafter, the second respondent developed intimacy with the third respondent. When the matter stood thus, the second respondent filed a petition for divorce before the Family Court, Coimbatore in S.M.O.P.No.787 of 2006 and the petitioner filed S.M.O.P.No.533 of 2007 for restitution of conjugal rights. While both the petitions are pending, the petitioner/husband has filed an interlocutory application for interim custody of the child in the Original Petition and the same was disposed of by giving visitation rights to the petitioner. Even though visitation rights was given to the petitioner, he was not allowed to see the child. Hence, this Writ of Habeas Corpus has brought forth before this Court.
4.The only contention urged by the learned counsel for the petitioner is that when the proceedings have been taken and the interlocutory application was disposed of giving visitation rights to the petitioner, the child was hidden by the second respondent. Under such circumstances, the petitioner has filed this Habeas Corpus petition.
5.After hearing the submissions made and looking into the materials available, the Court is of the considered opinion that the request of the petitioner does not require any consideration by this Court.
6.Admittedly, divorce petition and the petition for restitution of conjugal rights are pending before the Court of law. While the matter stood thus, in the interlocutory application for custody of child, visitation rights was granted in favour of the petitioner. Now, the petitioner has come forward with this petition as if the child was hidden by the second respondent. This cannot be a ground for filing a Habeas corpus petition before this Court. Such a ground cannot be considered for grant of the relief asked for by the petitioner. Hence, the request made by the petitioner is rejected. The Habeas Corpus Petition is dismissed.
(M.C., J.) (C.S.K.., J.)
17.03.2010
Index : Yes/No
Internet : Yes/No
vsi
M.CHOCKALINGAM, J.
AND
C.S.KARNAN, J.
vsi
To
1. The Sub Inspector of Police,
R-5, Virugambakkamm Police Station,
Chennai.
2. The Public Prosecutor,
High Court, Chennai.
H.C.P.No.457 of of 2010
17.3.2010