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Shaik MoidIn Vs. Kunhadevi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1929Mad33; 126Ind.Cas.111
AppellantShaik Moidin
RespondentKunhadevi
Excerpt:
criminal procedure code (act v of 1898), section 491 - writ of habeas corpus for custody of child--welfare of child paramount consideration--proper remedy of father to obtain custody of child. - .....child--i do not say anything at all against his character--but the fact remains that he has got a wife married before he married the mother of the child and that that wife apparently, assuming that she is quite willing to treat her step-children properly, is constantly away. what is the result during those periods? the petitioner is a man who earns his livelihood by driving a motor car which means he will be out on the roads practically all day. it is not suggested that in the absence of the first wife there will be any other woman about whom any body can ascertain anything--we have no materials for doing so--who will look after a child of this tender age. the boy is now between 7 and 8.2. in these circumstances we think it is quite unnecessary to interfere and my learned brother.....
Judgment:
ORDER

1. This is obviously a vexatious proceeding brought to unable the father to get out of his obligations under an order for maintenance to which he himself consented. It is quite true that after a time prima facie in the eye of the law he is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a Court has to look to on applications under habeas corpus is the interest of the child as being paramount. In this case there is nothing to show that the father is in a position to look after the child--I do not say anything at all against his character--but the fact remains that he has got a wife married before he married the mother of the child and that that wife apparently, assuming that she is quite willing to treat her step-children properly, is constantly away. What is the result during those periods? The petitioner is a man who earns his livelihood by driving a motor car which means he will be out on the roads practically all day. It is not suggested that in the absence of the first wife there will be any other woman about whom any body can ascertain anything--we have no materials for doing so--who will look after a child of this tender age. The boy is now between 7 and 8.

2. In these circumstances we think it is quite unnecessary to interfere and my learned brother Jackson has pointed out in the course of the argument that if the father wishes to assert his rights he can try to set the Court in motion ideally where the evidence would be much more easily obtainable and where the witnesses could be seen and if necessary cross-examined under Section 25, Guardians and Wards Act. This application is dismissed.


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