Case Note & Summary
The dispute arose from a matrimonial conflict between the mother and father of two minor children, Pragathesh aged 9 and Ananya aged 5. The mother filed a habeas corpus petition under Article 226 of the Constitution of India seeking a direction to the Superintendent of Police, Tirunelveli District, and the Inspector of Police, Kalakadu Police Station, to secure the children from the father and produce them before the court. Earlier, the father had filed H.C.P(MD)No.118 of 2025 alleging that the mother had illegally taken custody of the children and was living with a paramour. On 07.02.2025, the court dismissed that petition after finding the allegation false; it recorded that the father had harassed his wife and children, that the mother had taken the children about one and a half years earlier and was living with her mother, and that the children were studying in a school in Peykkulam. The court observed that the matter was a matrimonial and child custody dispute and that the father should approach the appropriate forum since the children were with the mother for over one and a half years and the custody was not illegal. After that dismissal, the father lodged a complaint with Thiruchendur Taluk Police Station and caused the mother to be summoned for an enquiry. While the mother was at the police station on 06.03.2025, the father along with his henchmen forcibly took the children from the maternal great-grandfather. The mother immediately lodged a complaint with Kalakadu Police Station, but no steps were taken to recover the children, leading to the present habeas corpus petition. After notice, the police traced the children and produced them before the court. The father contended that the children were voluntarily given to him after a compromise at Thiruchendur Taluk Police Station. The court conducted a personal enquiry with the mother, who reiterated that the children were forcibly taken from her great-grandfather while she was at the police station. The Inspector of Police, Kalakadu Police Station, conceded that a phone complaint and a written complaint through the Deputy Superintendent of Police were received and that Crime No.292 of 2025 was registered against the father Rajasekar and four others, with the matter under investigation. The court found that the father, due to some ill advice, had committed the crime and had forcibly kidnapped his own children from the lawful custody of their mother. It directed the police to proceed with Crime No.292 of 2025 in accordance with law and ordered the father to hand over the custody of the two minor children to the mother forthwith. The habeas corpus petition was disposed of accordingly.
Headnote
A) Habeas Corpus - Child Custody - Constitution of India, Article 226 - Habeas corpus was used by mother to recover minor children forcibly taken by father - Earlier father's HCP alleging illegal custody by mother was dismissed on 07.02.2025 with observation that mother had lawful custody for 1.5 years and father should approach appropriate forum - Court found father's later act of removing children from maternal great-grandfather while mother was at police station was forcible kidnapping from lawful custody, not voluntary, and directed third respondent to hand over custody to mother forthwith and police to proceed with Crime No.292 of 2025 in accordance with law - Held that mother's custody was lawful and father's act was illegal (Paras 3-7). B) Criminal Law - Police Investigation - Constitution of India, Article 226 - Upon mother's complaint, Kalakadu Police registered Crime No.292 of 2025 against father and four others for kidnapping - Court accepted police's concession that complaint was received and investigation pending, and directed police to proceed in accordance with law, holding that father's conduct constituted a crime despite his being natural father - Held that police must investigate the registered case lawfully (Paras 6-7).
Issue of Consideration
Whether habeas corpus under Article 226 of the Constitution of India lies to direct police to secure and produce minor children alleged to have been forcibly kidnapped by their father from the mother's lawful custody, and whether the children should be handed over to the mother while criminal investigation is pending.
Final Decision
Habeas Corpus Petition disposed of with directions: second respondent police shall proceed with complaint in Crime No.292 of 2025 in accordance with law; third respondent shall hand over custody of minor children Pragathesh and Ananya to petitioner forthwith.
Law Points
- Habeas corpus lies to restore custody of minor children when a parent forcibly removes them from the other parent's lawful custody
- prior dismissal of father's habeas corpus establishes mother's custody was not illegal
- father's act of removing children from maternal great-grandfather while mother was at police station constituted kidnapping
- police shall proceed with registered crime in accordance with law
