IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA WP(HC)NO.15 OF 2017 BETWEEN:
MR. SURIEZ AGED 26 YEARS SON OF IBRAHIM RESIDING AT FLAT NO 803, MOHTISHAM CORAL, EMMEKERE, PANDESHWAR MANGALURU – 575001 ... PETITIONER (BY SRI: P P HEGDE, ADVOCATE) AND:
1. MR. M ABDUL KHADER AGED 50 YEARS SON OF PODIMONU, RESIDING AT DOOR NO 9-12-556/2, ISMAIL MANZIL, ANSARI ROAD, BUNDER, MANGALURU - 575001 2. MRS FARZANA AGED 42 YEARS WIFE OF ABDUL KHADER, RESIDING AT DOOR NO 9-12-556/2, ISMAIL MANZIL, ANSARI ROAD BUNDER, MANGALURU - 575001 3. MRS SOUDHA AGED ABOUT 30 YEARS WIFE OF THANZIL RESIDING AT PAKKALADKA, BAJAL, MANGALURU-575007.
4. MRS THANZIL AGED ABOUT 35 YEARS SON OF UMMER RESIDING AT PAKKALADKA, BAJAL, MANGALURU - 575007 5. THE INSPECTOR OF POLICE MANGALURU NORTH POLICE STATION MANGALURU - 575001 REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA, BENGALURU 6. STATE OF KARNATAKA DEPARTMENT OF HOME REPRESENTED BY SECRETARY BENGALURU – 01 ... RESPONDENTS (BY SRI: B S SACHIN, ADVOCATE FOR R1-4 & SRI: E.S. INDIRESH, AGA FOR R5 & 6) THIS WPHC IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF HABEAUS CORPUS, DIRECTING RESPONDENT NO.5/POLICE TO SEARCH FOR AND PRODUCE THE PETITIONER'S MINOR FEMALE CHILD BY NAME UMMA KULSOOM FARHANA (DATE OF BIRTH:15.09.2016) BEFORE THIS HON'BLE COURT FORTHWITH AND HANDOVER THE CHILD TO THE PETITIONER.
THIS WPHC COMING ON FOR FURTHER ORDERS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
ORDER The plea of the petitioner is that at the delivery of her daughter, his wife died. Thereafter, the child is in the custody of her grand-parents-respondent Nos.1 and 2. Hence, the present petition for a Writ of Habeas Corpus seeking the custody of the child.
2. The petitioner had already filed Crl.M.No.219 of 2016 before the JMFC, Mangalore seeking the search and custody of his child, by an application filed under Section 97 Cr.P.C., which was dismissed. Thereafter, the present petition is filed.
3. On hearing the learned counsel for the petitioner, we have no hesitation to hold that it cannot be said that the child is in illegal detention.
4. In order to seek a Writ of Habeas Corpus, the petitioner would have to satisfy the Court that the child is in illegal detention. The respondent Nos.1 and 2 are the grand-parents, respondent No.3 is the sister of the child’s mother. They have a right over the custody of the child under their personal law. Hence, we find, no Writ of Habeas Corpus could be issued. However, it is needless to state that the petitioner is always at liberty to work out his remedies before the appropriate Court. Consequently, the petition is rejected.
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JUDGE JUDGE *mn/-