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2010 DIGILAW 825 (UTT)

GIRISH CHANDRA TIWARI v. STATE OF UTTARAKHAND

2010-11-25

TARUN AGARWALA

body2010
JUDGMENT Hon’ble Tarun Agarwala, J. Heard Smt. Pushpa Joshi, Advocate for the petitioner, Sri G.S. Sandhu, Government Advocate for respondent nos. 1 to 3, Sri Z.U. Siddiquie, Advocate for respondent no. 4 and Sri Sudhir Kumar Chaudhary, Advocate for respondent no. 5. 2. A writ in the nature of habeas corpus has been filed by the father Girish Chandra Tiwari for the production of a minor child Km. Ishika, aged about four years, from the custody of respondent no. 5, his wife Smt. Monika Tiwari. 3. The brief facts as alleged in the petition is that, respondent no. 5 has eloped with respondent no. 4 and is living with this person and has also taken his minor daughter, and consequently, the present writ petition has been filed. 4. Notices were issued to respondent nos. 4 and 5. Respondent no. 5 appeared before the court yesterday along with her daughter and submitted that she has left the home of her husband because of cruelty being inflicted upon her by her husband. The Court adjourned the matter at the instance of the learned counsel for the petitioner to enable the petitioner to also appear before the Court, and accordingly, the matter was posted for today. 5. In the morning, when the case was taken up, the court directed the petitioner, the respondent no. 5 and the daughter to appear before the Conciliation Centre for an amicable settlement. The Conciliation Centre has submitted a report that considering the conduct of the parties, it is not possible to achieve any kind of an amicable settlement. The Conciliation Centre in its report has recorded that respondent no. 5 has filed a suit for divorce before the Family Court at Agra and has also filed another case in a court at Haldwani. On the other hand, the petitioner has also filed an application before the Family Court, Nainital for the custody of the child, which is pending consideration. 6. This Court had asked the respondent no. 5 as to whether she is willing to go back to her husband’s home, and she has flatly refused to go back alleging cruelty being inflicted upon her by the petitioner. 7. In the light of the aforesaid, the Court finds that the child, namely, the daughter Km. Ishika was produced by the mother, and that the petitioner also met the child at the Conciliation Centre today. Since respondent no. 7. In the light of the aforesaid, the Court finds that the child, namely, the daughter Km. Ishika was produced by the mother, and that the petitioner also met the child at the Conciliation Centre today. Since respondent no. 5 refuses to go back to her husband’s home and contends that she is living independently coupled with the fact that the child is a minor, and consequently, at this stage, the mother has a preferential right to keep the child in her custody. This Court is of the opinion that the writ petition filed at the behest of the petitioner alleging wrongful detention of his daughter by the respondent no. 5, is patently misconceived. 8. Accordingly, the writ petition fails and is dismissed summarily.