Madras High Court

Madras High Court: In a petition filed by the mother of the minor child to direct the State to produce her son, aged about 3 years, from the illegal custody of the respondent 5 and hand over the minor child to the petitioner, the division bench of M.S. Ramesh and Sunder Mohan, JJ. without declaring the custodial rights of respondent 5 over the minor child, said that it would be in the welfare of the child that his care and custody should be retained by the respondent 5 for the present.


During her pregnancy, she was found to have contracted the HIV virus. According to the petitioner, her father handed over her son to the respondents 5 and 6 temporarily. Claiming that she was taking Sidha treatment till 24-12-2022, when she had sought to hand over the custody of her son from the respondents 5 and 6, they refused to return custody.

The petitioner claimed to have made a police complaint on 24-12-2022, which was closed since no criminality was involved. Her further complaint to the Child Helpline also turned futile since respondent 5 had represented during the enquiry that she intended to take re-course for the retention of the child. Thereafter, respondent 5 filed a petition on the file of the Principal District Judge under Sections 7 and 8 of the Guardian and Wards Act, 1890, seeking to appoint her as the guardian of the minor child, which is still pending. It is in this background; the present Habeas Corpus Petition has been filed.

Analysis and Decision:

The Court noted that the petitioner claims that handing over the custody was only temporary, however, respondent 5 denies the same stating that the child was given in adoption and that she is the lawful guardian of the child and thus, is entitled for custody.

Considering that the minor boy has been under the care and custody of respondent 5 right from his birth date and his physical custody has never been with the petitioner, the Court said that at this age, when he had never lived with his biological mother, it would be in the welfare of the child that his care and custody should be retained by the respondent 5 for the present.

The Court clarified that it has not adjudicated or declared the custodial rights of respondent 5 over the minor child and the issue regarding appointment of the guardian for the minor child could be decided by the Court concerned based on the evidence before it.

Thus, the Court closed the Habeas Corpus Petition with a liberty to the petitioner to visit her minor child at the house of the respondent 5, once a week, preferably during the weekends between 5.00 p.m. to 8.00 p.m., commencing from 01-05-2024, pending final disposal of the case on the file of the Principal District Court.

Taking into consideration that the petitioner claims to be the biological mother of the minor boy and is seeking custody, the Court also directed the Principal District Court to dispose of the case within a period of six months commencing from the date on which the petitioner files a reply statement.

[D.Madhumithra v. State, 2024 SCC OnLine Mad 1180, Order dated 25-04-2024]

Advocates who appeared in this case :

For Petitioner: Advocate Avinash Wadhwani

For Respondents: Additional Public Prosecutor E.Raj Thilak, B. Mohan

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