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P.K. Subramani Vs. Paster Mani and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberW.P. No. 10714 of 1983
Judge
Reported inAIR1986Mad181
ActsConstitution of India, Article 226
AppellantP.K. Subramani
RespondentPaster Mani and anr.
Appellant AdvocateP. Santhara Subbu, Adv.
Respondent AdvocateK. Ramaswami and ;Padmini Jesudorai, Advs.
Cases ReferredNee Fledman v. Dr. Chacko Pulparapil
Excerpt:
- - he had entrusted the custody of the child as early as in the year 1978 to the first respondent herein who is running an institution known as 'prayer house'.it is said to be an association registered under the societies registration act and to be enaged in running an orphanage as well is maintaining a home for aged persons and for destitute widows. raucy alberte champenois should send to this court an annual report along with recently taken photographs of the minor child in order to satisfy the court that the child was being looked after well. we are therefore, clearly of opinion that no writ can be issued in cases of this type. as a result of this finding, the writ petition deserves to fail and accordingly it will stand dismissed......the ,death of his wife, he had married again and his second wife was averse to bringing up the minor child born to his first wife and therefore, the child may be taken care of in the orphanage run by the first respondent. some months thereafter a belgium couple expressed their desire to adopt an indian child. the first respondent would say that the petitioner was contacted and he gave his consent to the child being taken in adoption by the belgium couple; but the petitioner would deny it. be that as it may, the first respondent filed a petition o. p. no. 500 of 1978 on the original side of this court under ss. 3, 7 to 10 of the guardians and wards act. after the formalities regarding publication of notice etc. were observed, a learned judge of this court passed an order on 10-12-1978.....
Judgment:

S. Natarajan, J.

1. This petition for the issue of a writ of habeas corpus for causing the production of a minor boy by name Amba Shankar alias Jayapaul has come to be filed on account of a gross and total misconnection of the circumstances under which a petition of this nature can be filed. The facts of the case are briefly as under.

The petitioner is the father of a minor by name Jayapaul. He had entrusted the custody of the child as early as in the year 1978 to the first respondent herein who is running an institution known as 'Prayer House'. it is said to be an association registered under the Societies Registration Act and to be enaged in running an orphanage as well is maintaining a home for aged persons and for destitute widows. According to the first respondent., the petitioner informed him that after the ,death of his wife, he had married again and his second wife was averse to bringing up the minor child born to his first wife and therefore, the child may be taken care of in the orphanage run by the first respondent. Some months thereafter a Belgium couple expressed their desire to adopt an Indian child. The first respondent would say that the petitioner was contacted and he gave his consent to the child being taken in adoption by the Belgium couple; but the petitioner would deny it. Be that as it may, the first respondent filed a petition O. P. No. 500 of 1978 on the Original Side of this Court under Ss. 3, 7 to 10 of the Guardians and Wards Act. After the formalities regarding publication of notice etc. were observed, a learned Judge of this Court passed an order on 10-12-1978 declaring the first respondent, to be the lawfully appointed guardian of the minor child Jayapaul and permitting the first respondent to entrust the custody of the minor child to the foreign couple Mr. Raucy Claude Roger and Mrs. Raucy Alberte Champenois residing at 18 Anenue De La Victoire Virton, Belgium, through their power of attorney agent Miss Alma Philips, English Professor, Cultural Academy, 19 Santhome High Road, Mylapore, Madras, for being taken to Belgium for the purpose of being fostered, maintained and brought up by the said Mr. Raucy Claude Roger and Mrs. Raucy Alberte Champenois. The Court Imposed a condition that Mr. Raucy Claude Roger and Mrs. Raucy Alberte Champenois should send to this Court an annual report along with recently taken photographs of the minor child in order to satisfy the Court that the child was being looked after well. The first of such report was directed to be filed on or before 31-12-1979. According to the first respondent, the petitioner was fully aware of all these things and he gave his whole-hearted consent and he also executed an agreement on stamp paper on 8-1-1979 agreeing to the child being taken by the Belgium couple as their adopted son and giving an undertaking that neither he nor his relations or friends would go back on the arrangement and give any trouble or cause any loss to the first respondent or the adoptive parents. It is the further case of the first respondent that till recently, the petitioner had been corresponding with the adoptive parents and in one of those letters dt.27-10-1979 the petitioner has categorically stated as follows

'We have no objection. I Jayapaul staying with you; Let him be your son itself, But we are eager to have some contact wish you morely writings.'

It is further written in the letter that the adoptive parents may write to him (the petitioner) in future and not to the first respondent. Lastly, he concludes the letter invoking the blessings of God for the grace shown by them on Jayapaul.

2. In spite of all these, the petitioner has come forward with this petition stating that the entrustment of the custody of the minor child to the first respondent was only a temporary arrangement and the first respondent had no authority to act as the guardian of the minor child and send him away in adoption to Belgium. According to the petitioner, the agreement on stamp paper is a document in which his signature was obtained without his knowing what the contents were. In so far as the letters are concerned, he has no specific answer except to say that the taking away of the child in adoption was not with his consent. The technical plea raised by him is that he was not made a party to the proceedings in O. P. No. 5010 of 1978 and therefore, the order passed by the Court is not binding on him. The learned counsel for the petitioner asserts without any materials whatever, that the child is being made to serve as a domestic servant by the adoptive parents in Belgium and the child is living in inhuman conditions. Therefore, he would say that the child is not leading a dignified way of life and such a of violates Art. 23 of the Constitution. He Would also say that the child has been exported for monetary considerations by the first respondent without the consent of the father who is the natural guardian and that again is illegal. The further submission made is that the father is the natural arid lawful guardian and he is entitled to seek the issue of a writ of habeas corpus for getting the custody of his child. In support of these, Propositions, he cites the decisions in Gohar Begum, : 1960CriLJ164 and Veena Kapoor v. Varinder Kumar, : AIR1982SC792 .Those, authorities have no relevancy at all to the facts of the case on hand. When asked as to how a writ of habeas corpus can be enforced when the child is beyond the shores of this country and when the persons having the custody of the child are not parties to these proceedings, the counsel would cite the in Marggarate Maria v, Pualparampil, Nee Fledman v. Dr. Chacko Pulparapil, : AIR1970Ker1 which was rendered under entirely different circumstances.

3. For a variety of reasons, we have no hesitation in holding that this petition is totally misconceived and it has been filed on account of a total lack of understanding of the scope of habeas corpus proceedings. In the first place, the child is not in unlawful custody. On the other hand, it is in, he custody of the adoptive parents in Belgium in conformity with the order passed by this Court in O. P. No. 500 of 1978. Therefore, it is totally wrong for the petitioner to say that the child is being kept in unlawful detention. If the petitioner is aggrieved with the appointment of the first respondent as the guardian and the permission granted to him by the Court to hand over the custody of the child to the foreign parents, then the proper course for him is to approach, the learned Judge sitting on the Original Side of the High Court and seek revocation of the orders passed in O. P. No. 500 of 1978. Probably, the petitioner does not want to resort to such a course because he will have to substantiate his contentions by evidence and he may also find it difficult to get over the documents executed by him and the letters written by him, Whatever may be the reason for the petitioner's reluctance to approach the Original Side of the High Court, we have to point out that as per law, the only remedy available to the petitioner is to seek cancellation of the orders of this Court in O. P. No. 500 of 1978 and then seek enforcement of his rights as the father of the minor child to get back its custody. The learned counsel for the petitioner would say that the adoptive parents have not conformed to the conditions of undertaking given by them in O. P. No. 500 of 1978. If that be so, that is also a matter which has to be brought to the notice of the concerned court so that the Court can take appropriate action against the erring persons for non-observance of the conditions of the bond. Without doing any of the things open to him under law, the petitioner cannot rush to this Court alleging unlawful detention discussed of the child on the basis of conjectures and, imaginary contentions. We are therefore, clearly of opinion that no writ can be issued in cases of this type. As a result of this finding, the writ petition deserves to fail and accordingly it will stand dismissed. Rule nisi will stand discharged.

4. The learned counsel for the petitioner makes an oral application under Art. 134A read with Arts. 133 and 134(c) of the Constitution of India for leave being granted to the petitioner to appeal to the Supreme Court. Since the petitioner has not been shut out of the remedies available to him under law in spite of the. dismissal of this petition and since the matter is not of such importance and gravity as to call for a determination of the question by Supreme Court, we declined to grant leave.

5. Petition dismissed.


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