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Madhya Pradesh High Court · body

2021 DIGILAW 277 (MP)

Sumit Sakargayan v. State of M. P.

2021-03-01

VIVEK RUSIA

body2021
JUDGMENT : Vivek Rusia, J. 1. The petitioner has filed the present petition seeking writ in the nature of habeas corpus alleging illegal custody of his minor child with respondent No. 4 (Wife). 2. The facts of the case in short as under: The petitioner and respondent No. 4 got married on 27.04.2009 as per Hindu rituals and customs. Respondent No. 4 gave birth to a girl child namely Katyayani out of said wedlock on 06.05.2012. After marriage, petitioner and respondents No. 4 have started living together at Ujjain. Respondent No. 4 had completed her BHMS qualification in the year 2010 and after completing the internship she started her clinic at Ujjain. They lived happily and travelled to various places together after the marriage. 3. According to the petitioner on 11.03.2020, respondent No. 4 left the matrimonial house along with a minor child Katyayani. The petitioner made desperate attempts to bring her back but all failed. According to the petitioner since 11.03.2020, respondent No. 4 is not allowing him to meet her daughter even on the telephone or through video calls. The petitioner to restore his marital life has filed a petition under Section 9 of the Hindu Marriage Act, 1955, which is pending as case No. 194/2020 before the Family Court at Indore. Respondent No. 4 has appeared in the aforesaid petition and filed a suitable reply. She has also got registered an FIR against the petitioner and his sister for the offence punishable under Section 498-A, 323, 506/34 of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961, in which challan has been filed and the petitioner is on bail. 4. According to the petitioner, the future of his child would not be secured with respondent No. 4 who is running a private clinic in the name of Katyayani Homeopathy Clinic at Indore with timing 10:00 am to 01:00 pm and 05:00 pm to 08:00 pm hence she is not in a position to take care of her daughter properly. Her mother is a government teacher and her father is an old age person. The petitioner came to know that the minor girl is not attending the classes at Delhi Public School, Ujjain, therefore, respondents be commanded be produced the corpus before this Court and hand over her custody to the petitioner. 5. I have heard Shri A K Sethi learned senior counsel for the petitioner at length. The petitioner came to know that the minor girl is not attending the classes at Delhi Public School, Ujjain, therefore, respondents be commanded be produced the corpus before this Court and hand over her custody to the petitioner. 5. I have heard Shri A K Sethi learned senior counsel for the petitioner at length. 6. The sole issue which requires consideration whether the writ petition is an appropriate remedy in the given facts and circumstances of the case. It is settled law that finding of illegal custody is a sine-qua-non for the maintainability of the petition for habeas corpus. It is to be seen from the pleadings and documents filed by the petitioner that the custody of the daughter of the petitioner with respondent No. 4 i.e. mother can be termed as illegal custody. Undisputedly, respondent No. 4 is a natural guardian of the minor child Katyayani. It is not a case that at any point in time the Katyayani was in the exclusive custody of the petitioner and respondent No. 4 has illegally removed her from the custody of the petitioner. At the time of parting with the petitioner respondent No. 4, the daughter Katyayani was with her. Since birth, she is with respondent No. 4 at Ujjain and thereafter at Indore. Hence such custody cannot be termed as illegal detention. 7. The only allegation of the petitioner is that respondent No. 4 is not permitting him to meet his daughter Katyayani. The petitioner has already resorted a remedy before the Family Court by way of an application under Section 26 of the Hindu Marriage Act, which has been declined by the Family Court. Still, the petitioner is having a remedy to approach the Family Court for seeking temporary and permanent custody of his daughter. It is a matter of evidence, whether the betterment of the child is with respondent No. 4 or with the petitioner. As on today, the petitioner and respondent No. 4 both are BHMS practitioner doctor, therefore, it cannot be said that the future of the girl child would be better with the petitioner. 8. Shri Sethi, learned Senior Counsel appearing on behalf of the petitioner has placed reliance over the judgment of Apex Court passed in the case of Ruchi Majoo Vs. 8. Shri Sethi, learned Senior Counsel appearing on behalf of the petitioner has placed reliance over the judgment of Apex Court passed in the case of Ruchi Majoo Vs. Sanjeev Majoo [ 2011(3) M.P.L.J. 642 ] in which Apex Court has held that proceedings in the nature of habeas corpus for custody of minor are maintainable and he writ court having jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenu is within its territorial jurisdiction. In the said case the child was born in America. The husband filed a petition before the American Court seeking a divorce from the wife and also custody of a minor child. The American Court issued a red corner notice based on the allegation of child abduction against the mother. In such a situation, the petition filed under Article 227 was held to be maintainable before the High Court of Delhi. 9. Shri Sethi, learned Senior counsel has also placed over the latest judgment of Apex Court passed in the case of Yashita Sahu Vs. State of Rajasthan and others (2020) 3 SCC 67 in which Apex Court has held that the court can invoke the extraordinary writ jurisdiction for the best interest of the child looking to the special facts and circumstances of the case because the welfare of a child is a paramount consideration. In this case, also the husband filed a petition for issuance of a writ of habeas corpus before the High Court at Rajasthan for the production of his minor child. The High Court by the impugned judgment dated 01.07.2019 directed the wife to return to the USA along with her minor daughter within a period of 6 weeks to enable the jurisdictional court in the USA to pass further orders. The Apex Court has not upheld the aforesaid order passed by Rajasthan High Court. Shri Sethi learned Senior counsel has placed reliance over the various judgments of this Court but in sum and substance, it has been held that it is only in an exceptional case the right of the parents to the custody of a minor will be determined in exercising of extraordinary jurisdiction on a petition of habeas corpus. In the present case, I do not find any extraordinary circumstances between the parties in respect of custody of a minor child Ms Katyayani. 10. In the present case, I do not find any extraordinary circumstances between the parties in respect of custody of a minor child Ms Katyayani. 10. Accordingly, the writ petition is hereby dismissed.