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Allahabad High Court · body

2017 DIGILAW 416 (ALL)

SWETA PANDEY v. STATE OF U. P.

2017-02-03

HARSH KUMAR

body2017
JUDGMENT : Hon'ble Harsh Kumar,J. Heard learned counsel for the petitioners and perused the record. 2. The present petition has been filed for directing the respondents to produce the petitioner no.1 wife, petitioner no.2 minor daughter and petitioner no.3 minor son of Govind Pandey, the husband of petitioner no.1 and father of petitioner nos.2 & 3 before the court for recording their statements as well as for handing over their custody to Govind Pandey. 3. Learned counsel for the petitioners has submitted that marriage between Govind Pandey and petitioner no.1 solemnized on 5.5.2006 and out of the wedlock petitioner nos.2 & 3 were born on 1.7.2009 and 9.5.2010 respectively; that the petitioner no.1 was fetched by her father on 3.12.2014 and in June, 2016 when Govind Pandey approached the respondent no.4 for fetching the petitioners, she, his mother-in-law refused to send them with petitioner Govind Pandey on the ground of his being unemployed, and did not even permit him to meet his wife and children on 20.6.2016; that the petitioner Govind Pandey, the husband of corpus-petitioner no.1 and father of corpus-petitioner nos.2 & 3, has filed the petition under Section 9 of Hindu Marriage Act for restitution for conjugal rights in the Family Court, Gorakhpur on 28.7.20126 which is pending for disposal; that since the father is guardian of his children, the wife of petitioner Govind Pandey may be directed to produce herself as well as her children before the court and their custody may be provided to the petitioner Govind Pandey. 4. Per contra, learned A.G.A. submitted that matter relates to matrimonial dispute and Govind Pandey may seek efficatious remedy before Family Court under Guardian and Wards Act. 5. Upon hearing learned counsel for the petitioners and perusal of record, I find that petitioners/corpus Smt. Sweta Pandey, Miss Palak as well as Master Veer Pandey are not alleged to be under unlawful confinement. Due to some matrimonial dispute between Govind Pandey and petitioner no.1, the wife petitioner no.1 appears to have deprived the petitioner Govind Pandey from her company and is living at her Maika with her children. The petitioner Govind Pandey has taken steps for restitution of conjugal rights. The custody of children with their mother is not alleged to be unlawful custody and the corpus petitioner nos.2 & 3 may not be considered to be under unlawful confinement of their mother. The petitioner Govind Pandey has taken steps for restitution of conjugal rights. The custody of children with their mother is not alleged to be unlawful custody and the corpus petitioner nos.2 & 3 may not be considered to be under unlawful confinement of their mother. The petitioner Govind Pandey has every right to seek their custody under the provisions of Section 25 of Guardian and Wards Act or as advised. 6. It is also noteworthy that matter relates to matrimonial dispute on account of alleged unemployment of Govind Pandey, the husband of petitioner no.1 and father of petitioner nos.2 & 3 and there is no whisper of unlawful confinement of petitioners by respondent nos.4 & 5 and proceedings under Section 9 of Hindu Marriage Act are already pending between Govind Pandey and petitioner no.1 before the Family Court since 28.7.2016 (Annexure No.2). As per averments made in application, the petitioner no.1 is living in her Maika since 3.12.2014 and in the application it has been prayed that by a decree of restitution of conjugal rights the respondent Smt. Sweta Pandey be directed to come with her son and daughter to live with him as wife restraining the mother of Smt. Sweta Pandey from making any obstruction. 7. In view of the discussions made above, since the proceedings are pending before the Family Court and petitioner Govind Pandey has been provided with equally efficacious remedy under the provisions of Guardian and Wards Act, in absence of any whisper about the unlawful confinement of petitioner nos.1, 2 & 3 by the respondent nos.4 & 5, the petitioner Govind Pandey has failed to show sufficient ground for issuing notices to respondents and the petition for habeas corpus being devoid of merits and legally not maintainable is liable to be dismissed. 8. The present petition is dismissed, accordingly.