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2020 DIGILAW 1228 (MP)

Bharat Parashar v. State of M. P.

2020-11-20

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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ORDER Shrivastava, J. 1. -- This writ appeal under section 2(A) of Madhya Pradesh Uchcha Nyayalaya Ko Appeal Adhiniyam, 2005, has been filed against the order dated 19.3.2020 passed in Writ Petition No. 7050/2020, whereby the writ petition filed by the appellant/petitioner has been dismissed being not maintainable. 2. The facts of the case in nutshell are that the appellant had filed an application under sections 7 and 10 of Guardians and Wards Act, 1890 before First Additional District Judge Dabra, District Gwalior, seeking custody of his minor son Chandramohan @ Betu from respondents No.5 and 6. The said application was allowed and vide order dated 10.3.2018 custody of the minor child was directed to be given to the appellant and when the custody was not given to the appellant, the proceeding for execution of the order dated 10.3.2018 were filed, which is still pending. Since the respondents No.5 and 6 kept the child in illegal custody in spite of the judgment and decree in favour of the appellant, the appellant filed writ petition before this Court bearing No. 7050/2020. Learned Single Judge passed the following order which is impugned herein :- “In this petition under Article 226 of the Constitution of India, the petitioner seeks issuance of writ of habeas corpus on the ground that the corpus Chandramohan alias Betu is his son and is in illegal confinement of respondents No.5 and 6. It is submitted by the learned counsel for the petitioner that the respondent No.5 is the wife of the petitioner but had left the petitioner and started living with the respondent No.6 Rajbahadur out of her own free will alongwith the corpus Chandramohan alias Betu, who is aged about 7 years. It is further submitted that the custody of the corpus was not delivered to the petitioner, therefore, the petitioner filed an application under sections 7 and 10 of the Guardians and Wards Act seeking custody of the corpus. The application was decided vide order dated 10.3.2018 (Annexure P/2) and the custody of the corpus was directed to be granted to the petitioner. Since custody of the corpus was not handed over, an application was filed before the police authority for the purpose of seeking custody. Execution proceedings for execution of the order dated.10.3.2018 was also filed and the same is pending. Since custody of the corpus was not handed over, an application was filed before the police authority for the purpose of seeking custody. Execution proceedings for execution of the order dated.10.3.2018 was also filed and the same is pending. Respondents No.5 and 6 kept the corpus in illegal custody in spite of the judgment and decree passed in favour of the petitioner, hence, this petition seeking a writ of habeas corpus has been filed. On the other hand, learned counsel for the respondents/State opposed the prayer and submitted that the present petition is not maintainable, inasmuch as parallel proceedings cannot be entertained once the order has been passed in the appropriate proceeding and the execution proceedings are still pending. Heard learned counsel for the parties. Since the mother is also the natural guardian of the corpus/child, therefore, it can not be said that the corpus is in illegal detention of the mother. The execution proceeding is pending. It is settled law that the writ of habeas corpus is not to be issued as a matter of course and clear grounds must be made out for issuance of writ of habeas corpus. Moreover, the petitioner has not been able to make out a case of illegal confinement, hence, the petition is not maintainable. The same is, accordingly, dismissed as not maintainable.” 3. From the aforesaid impugned order it is clear that the learned Single Judge dismissed the writ petition as not maintainable holding that “the mother is also the natural guardian of the corpus/child, therefore, it can not be said that the corpus is in illegal detention of the mother. The execution proceeding is pending. It is settled law that the writ of habeas corpus is not to be issued as a matter of course and clear grounds must be made out for issuance of writ of habeas corpus. Moreover, the petitioner has not been able to make out a case of illegal confinement, hence, the petition is not maintainable. The same is, accordingly, dismissed as not maintainable.” 4. Moreover, the petitioner has not been able to make out a case of illegal confinement, hence, the petition is not maintainable. The same is, accordingly, dismissed as not maintainable.” 4. It is an admitted position that First Additional District Judge, Dabra District Gwalior has passed the judgment and decree dated 10.3.2018 in MJC (Guardian Wards) No. 03/2017 and allowed the petition filed by the present appellant under sections 7 and 10 of Guardian and Wards Act, 1890 directing as under :- ß9- vr% fuEufyf[kr vkns'k ikfjr fd;k tkrk gS fd %& 1- vkosnd dh ;kfpdk Lohdkj dh tkrh gSA 2- vkosnd Hkjr ikjk'kj vo;Ld ckyd panzeksgu mQZ csVw dk uSlfxZd laj{kd gSA vr% vukosfndk vo;Ld panzeksgu mQZ csVw dks vkns'k fnukad ls 45 fnu dh vof/k ds Hkhrj vkosnd Hkjr ikjk'kj dks vfHkj{kk esa iznku djsxhA 3- Ik{kdkj viuk viuk O;; Lo;a ogu djsaxsA 4- rnkuqlkj O;; rkfydk rS;kj dh tk;sA^^ 5. That means, the Additional District Judge Dabra has considered the matter on merits and thereafter has passed decree in favour of the present appellant. It is also apparent that execution proceeding in respect of the said judgment and decree is pending. Meanwhile, the appellant approached this Court by filing Habeas Corpus Petition (Writ Petition No. 7050/2020), wherein the learned Single Judge has passed impugned order dated 19.3.2020. 6. Taking into account the aforesaid facts and circumstances of the case, the order impugned passed by learned Single Judge is left undisturbed with direction to the executing Court to make all possible endeavours and decide the execution proceeding [MJC (Guardian Wards) No. 03/2017] as expeditiously as possible, preferably within 90 days of this order positively. 7. With the aforesaid directions, this writ appeal stands disposed of. Prashant Sharma for appellant; Ankur Mody, Additional Advocate General for respondent/State.