Custody Can’t Be Taken By Force: Madras High Court Asks Father To Return 2.5 Year Old Son To Mother
The Madras High Court was considering a Petition filed by a father under Article 226 of the Constitution seeking a direction to the police to produce his minor son.
Justice A.D. Jagadish Chandira, Justice B. Karthikeyan, Madras High Court
While observing that the custody of a minor child cannot be taken by force, the Madras High Court has asked a man to hand over the custody of his 2-and-a-half-year-old son to his mother.
The High Court was considering a Habeas Corpus Petition filed under Article 226 of the Constitution seeking a direction to the police to produce the petitioner’s (mother) 3-year-old son, allegedly under the illegal custody of the respondent father.
The Bench comprising Justice A.D. Jagadish Chandira and Justice B. Karthikeyan held, “Though the third respondent is the father and natural guardian of the child, who is just about 2 ½ years old, the custody of the minor child cannot be taken by force and must be sought in accordance with the procedure established by law.
“In view of the above facts and circumstances, the third respondent is directed to hand over the custody of the minor child to the petitioner”, it ordered.
Advocate K. Venkatesan represented the Petitioner while Additional Public Prosecutor M.Mohamed Riyaz represented the Respondent.
Factual Background
The petitioner, a medical doctor by profession, claimed that her marriage with the third respondent was solemnised in 2021 at Puducherry and two children were born. The petitioner further stated that she was subjected to verbal and physical abuse and harassment by the (husband) third respondent. During the course of the matrimonial disputes, the husband allegedly threatened her with an aruval. Due to the alleged harassment and cruelty, the petitioner left the matrimonial home along with her children and had been residing with her mother.
The husband allegedly came to the petitioner’s parental home and forcibly took away the minor child, without her consent. Aggrieved by the same, the petitioner lodged a complaint before the second respondent, pursuant to which, a case was registered. Since no further action was forthcoming, the petitioner approached the Court by filing the Habeas Corpus Petition.
Reasoning
The Bench noted that the matrimonial disputes were pending between the petitioner and the husband, and the parties were living separately. The petitioner was residing with her mother and it was alleged that, while the petitioner was residing at her maternal home, the husband came there and forcibly took away the minor child.
Holding that the custody of the minor child cannot be taken by force, the Bench directed the father to hand over the custody of the minor child to the mother. The Bench closed the Petition by clarifying, “This Court hastens to add that the observations made in this order are confined to the disposal of the present Habeas Corpus Petition and shall not influence the adjudication of any subsequent proceedings initiated by either party before the appropriate forum.”
Cause Title: A v. The Commissioner of Police (Case No.: HCP No. 2125 of 2026)
Appearance
Petitioner: Advocate K. Venkatesan
Respondent: Additional Public Prosecutor M. Mohamed Riyaz, Advocate A. Nagarajan