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2008 DIGILAW 633 (ALL)

Amit v. Nirmal Sahu

2008-03-19

TARUN AGARWALA

body2008
ORDER :- A petition under Article 226 of the Constitution of India has been filed by the natural guardian and mother for a writ of habeas corpus directing her husband to produce her two year old son. The applicant contended that the marriage with the opposite party was solemnized in the year 2004 and a male child was born in the year 2005. On account of harassment and the demand for dowry, which the applicant was unable to accede, the opposite party threw her out on 10-7-2007 and illegally took the custody of the male child. In paragraph 11, the applicant alleged that, she is now residing with her parents and contended that she is the mother and natural guardian of the child and that the opposite party has illegally detained the child without any authority of law. It was also contended that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of the child below 5 years of age is always with the mother and therefore, prayed that the child be produced before the Court and orders for the release of the child be passed. 2. The opposite party appeared and submitted that the marriage was solemnized between the parties on 22-4-2004 and a male child was born on 29-10-2005. The opposite party alleged that the applicant, namely, the mother of the child had developed an illicit relationship with her brother-in-law and had left the husbands house on 20-11-2005 on her own will and volition and, since then, is living with her brother-in-law. The opposite party further submitted that since then, the child was being looked after by himself and his parents. The opposite party further submitted that a suit under Section 9 of the Hindu Marriage Act was filed in the Family Court, being suit No. 439 of 2006, for the restitution of the conjugal right which is pending consideration, in which the applicant has appeared and is contesting the matter and has submitted that she was not willing to live with her husband. The opposite party further contended that the applicant has also filed an application under Section 24 of the Hindu Marriage Act for maintenance which is also pending. The opposite party further contended that the applicant has also filed an application under Section 24 of the Hindu Marriage Act for maintenance which is also pending. The opposite party further submitted that the mother has no funds of her own and cannot bring up the child and since the welfare of the child is of paramount importance, the custody should not be given to the mother. The opposite party contended that on the facts and the circumstances stated aforesaid, the application for a writ of habeas corpus was not maintainable and was liable to be rejected. 3. In rejoinder affidavit, the applicant submitted that she cannot live any longer with the husband and submitted that her life would be in danger, if she has to live or reside with her husband. The opposite party further submitted that she had lodged an F.I.R. against the husband and that she cannot survive without her son and that she would make every effort for the welfare of the child. 4. Heard Sri D. K. Mishra, the learned counsel for the applicant and Sri Rajendra Pratap Singh, the learned counsel for the opposite party and the standing counsel for the State. Pursuant to an earlier order of the Court, the child has been produced before the Court today. 5. With regard to the submission of the learned counsel for the opposite party that the application for a writ of habeas corpus was not maintainable, the learned counsel for the applicant placed reliance upon a decision of the Supreme Court in Capt. Dushyant Somal v. Smt. Sushma Somal and others, 1981 (2) SCC 277 : AIR 1981 SC 1026 wherein it was held that a writ of habeas corpus should not be issued against a parent for the custody of a child but, the Supreme Court held that this would not mean that a writ of habeas corpus would not lie at all and that a writ could not be issued against the parent who with impunity kept the child in illegal custody. The Supreme Court held that a prerogative writ of habeas corpus would lie even where an alternate remedy under the Guardians and Wards Act was available to a party. 6. The Supreme Court held that a prerogative writ of habeas corpus would lie even where an alternate remedy under the Guardians and Wards Act was available to a party. 6. In Vinayak Goyal v. Prem Prakash Goyal and others, 1981 All LJ 752, a Division Bench while following the aforesaid judgment of the Supreme Court held, that a writ of habeas corpus was available as a remedy in all cases of deprivation of personal liberty and that a writ of habeas corpus would lie where a detention was illegal which was incapable of legal justification. Similar view was again reiterated by a learned Single Judge in the case of Master Deepanshu Bhatnagar, through his mother, natural guardian and next friend Smt. Sandhya Bhatnagar v. Sri S.S.D. Bhatnagar, Advocate and others, 1998(16) LCD 349. 7. In view of the consistent pronouncement on the issue in question, it is clear that a writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent was illegal and without any authority of law. 8. The question that is required to be considered at this stage is, whether the detention of the minor child by the father and the natural guardian of the child was illegal and without any authority of law ? From the affidavit that has been filed before the Court, it is clear, that a false averment has been made by the applicant, namely, that she was thrown out of the house of her husband on 10-7-2007. The record indicates that the applicant, namely, the natural mother left the house of her husband on 20-11-2005, almost after one month of the child being born. The opposite party has filed an application under Section 9 of the Hindu Marriage Act for the restitution of the conjugal right, in which the mother is appearing and is contesting the matter. Not only this, the mother has filed an application under Section 24 of the Hindu Marriage Act for grant of maintenance on the ground that she has no funds to maintain herself. The record clearly indicates that the applications under Sections 9 and 24 of the Hindu Marriage Act were filed prior to the filing of the present writ petition. Not only this, the mother has filed an application under Section 24 of the Hindu Marriage Act for grant of maintenance on the ground that she has no funds to maintain herself. The record clearly indicates that the applications under Sections 9 and 24 of the Hindu Marriage Act were filed prior to the filing of the present writ petition. The record also suggests that the mother had also appeared before the Family Court and was contesting the matter prior to the filing of the present writ petition. 9. In view of the aforesaid facts which has been culled out from the record, it is clear that the mother has made a false assertion that she was being thrown out of her husbands house in July 2007. The record indicates that she had left the husbands house in November 2005 itself. In view of the aforesaid, the Court is of the opinion, that the alleged detention of the child by the opposite party, who is the father and natural guardian of the male child, was neither illegal nor the detention could be said to be without any authority of law. Further, since the matter is pending before the Family Court where the opposite parties are appearing, the applicant, namely, the mother, should have moved an application under Section 6 of the Hindu Minority and Guardianship Act. If such an application was filed, the Court would also consider the provisions of Section 13 of the said Act which relates to the welfare of the child which stipulates that the welfare of the minor would be a paramount consideration for the Court. The submission of the learned counsel for the applicant that the custody of the minor child below 5 years has to be given to the mother under all circumstances is patently erroneous. In my opinion, from a bare reading of the provisions of Section 6-A of the Act it is clear that the custody of the minor who is below 5 years should ordinarily be with the mother. The word ordinarily does not mean "necessarily". Once the matter is before the Court u nder Section 6 of the Act, the Court would consider all aspects of the matter including the provisions relating to the welfare of the minor. The Court can also consider the provisions of Section 19 of the Guardians and Wards Act. The word ordinarily does not mean "necessarily". Once the matter is before the Court u nder Section 6 of the Act, the Court would consider all aspects of the matter including the provisions relating to the welfare of the minor. The Court can also consider the provisions of Section 19 of the Guardians and Wards Act. In view of the aforesaid, this Court is of the opinion that the detention of the child by the father of the opposite party was neither illegal nor could it be said to be without any authority of law. This Court is also of the opinion that the applicant has misused the process of the Court by invoking the writ jurisdiction of habeas corpus. 10. In view of the aforesaid, the writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to cost. 11. Since the petition is being dismissed, the father who has appeared along with the child is free to take the child back. However, this Court expresses hope that the opposite party would take care of the sentiments of the childs mother and would not do anything to deprive her from meeting her son Amit. Petition dismissed.