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2023 DIGILAW 2192 (PNJ)

Maninder Singh Sekhon v. State of Punjab

2023-07-17

ALOK JAIN

body2023
JUDGMENT Mr. Alok Jain, J. The present petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in nature of Habeas Corpus, seeking release of the alleged detenue Sidak Veer Singh, aged about 05 years being son of the petitioner, alleging him to be in the illegal custody of respondent No.2. 2. That the brief facts as narrated by the learned Senior counsel for the petitioner are narrated in the chart below: - Date Event Relevant Annexure Remark 21.03.2016 Petitioner no. 1 &Respondent no. 2 got married. Nil Admitted by both the parties. 06.02.2017 Son-Sidak Veer Singh bom to the parties. Nil Admitted by both the parties. 02.10.2017 Both the parties got separated and the child remains in the custody of respondent no. 2. Nil Admitted by both the parties. 24.04.2021 Parties compromised to resolve all the matrimonial dispute and executed a compromise. P-2 Admitted by both the parties. 26.07.2021 Petition under Section 13(B) of HMA is filed by the parties jointly. Attached with P-1 Admitted by both the parties. 19.08.2021 Parties filed an application for condonation of the statutory period. Nil Admitted by both the parties. 26.08.2021 Parties filed their affidavits dated 19.08.2021 as statements of Second Motion whereby the petitioner waived off his right of visitation. R-2/7 & R-2/8 Respondent No. 2 alleges concealment of this material document. 27.08.2021 Divorce granted by Family Court, Ludhiana. P-1 Admitted by both the parties. 3. Subsequent thereto the petitioner, issued a legal notice on 22.10.2021 and also a representation on 07.07.2022 (Annexure P-3) and sought his visitation right and meeting with the alleged detenue, which has not been responded and replied. 4. It is submitted by the learned Senior counsel for the petitioner that the detenue is in illegal custody of respondent no. 2, and hence, petitioner having left with no other speedy and efficacious remedy, therefore, sought the release of minor child by filing the present petition. 5. That this Hon'ble Court passed the following order on 02.06.2023, which reads as under: - "On request of learned counsel for the parties, adjourned to 07.07.2023. 2, and hence, petitioner having left with no other speedy and efficacious remedy, therefore, sought the release of minor child by filing the present petition. 5. That this Hon'ble Court passed the following order on 02.06.2023, which reads as under: - "On request of learned counsel for the parties, adjourned to 07.07.2023. Learned counsel for the petitioner as well as learned counsel for respondent No. 2 are ad-idem and have mutually agreed that on the next date of hearing i.e. 07.07.2023, alleged detenue namely Sidak Veer, would be brought in the Mediation and conciliation Centre of this Court or Child Counselling Centre of this Court, by his mother-respondent No.2 and child would be allowed to have meeting freely with petitioner for a sufficient period of time, in a separate room at 11.00 am, without there being any disturbance during meeting. It is made clear that said meeting is arranged as an interim measure only, without effecting or prejudicing the rights of either side." 6. In compliance of the above order dated 02.06.2023, the matter was called in the first round at 11:00A.M. on 07.07.2023, and the parties were directed to go to the Mediation Centre and the petitioner was permitted to meet the child. 7. The matter was again taken up at 02:30 PM on 07.07.2023 and the learned Senior Counsel for the petitioner very fairly submitted that the petitioner (who is present in person) met the detenue. Thereafter, the matter has been argued at length. 8. The learned Senior counsel for the respondent No.2 at the outset has raised a preliminary objection that the petitioner has concealed a material fact and a document i.e. Annexure R-2/7 & R-2/8 whereby the parties have submitted on oath, their statements by way of affidavit dated 19.08.2021, executed on 26.08.2021, in second motion proceeding before the Family Court, Ludhiana, whereby not only the petitioner has waived his visitation rights but the said arrangement has also been acknowledged by the respondent no.2. He has further vehemently argued that the said affidavit filed by the parties was the basis of the passing of decree of divorce (Annexure P-l) on petition filed under Section 13-B of Hindu Marriage Act, 1955, and hence, the maintainability as well as the orders passed by this Court right from the inception of this petition were with the notion that respondent No.2 is not allowing the petitioner-father to meet his child. The said affidavit goes to the core of the issue as the entire case setup by the petitioner has mislead the Court to the extent that Court had even issued notice of motion and subsequent orders were passed under the misconception that respondent no. 2 is acting against law, which is not the correct position and situation. Learned Senior counsel for respondent No.2 has submitted that this issue needs to be adjudicated at the outset as to whether there is any concealment by the petitioner and if yes, then whether the petitioner would be entitled to any relief much less when this Court is exercising its powers under Article 226 of the Constitution of India and more so, and the petitioner is praying for the equity. It is submitted that, had the said document not being concealed, the present petition for habeas corpus itself would not have been maintainable as neither the alleged detenue was in any illegal detention nor was it a case of the whereabouts of the detenue not known to the petitioner. He further submits that once the petitioner has concealed a material fact, he is not entitled to any relief much less in the writ court seeking issuance of a writ in the nature of habeas corpus. 9. Per contra, learned Senior counsel for the petitioner submits that there was no concealment by the petitioner. He submits that the first affidavit filed in the petition for grant of divorce by mutual consent was to be considered and has been considered, and therefore, there is no concealment. He further submits that, in fact the compromise deed dated 24.04.2021 (Annexure P-2), duly records and reserves the right of petitioner to have visitation rights and that is the document, which has been relied upon by the Family Court to grant the decree of divorce. 10. Learned counsel for the petitioner has further taken his argument and submitted that the second affidavit has no relevance as the final order dated 27.08.2021 duly records the tendering of those affidavits but still the Family Court ordered as under: "The record reveals that the parties to the petition have filed the petition voluntarily without any pressure and any undue influence from any quarter and have recorded their statements to dissolve the marriage mutually on failing to continue their married life. The petitioner no.2 received sum of Rs.50,00,000/- as referred above towards the maintenance of her minor child namely Sadak Veer Singh, as per settlement. The parties shall remain bound by the compromise dated 24.04.2021 proved as Ex.PA on the record and also part of this judgment of the present petition. The conditions of provisions of the section 13-B of the Hindu marriage Act have been satisfied by the parties to petition to the petition and there is no any ground to discard the claim of the parties because the same stand of the parties is found to be sustainable from all the comers in favour of the parties to petition. " 11. Learned Senior counsel for the petitioner has also argued that, in fact the compromise dated 24.04.2021 has been acted upon, and hence, there was no occasion to have withdrawn the visitation rights, which are now being projected as concealment by respondent No.2. He has also submitted that it was pleaded before the Family Court that the interest of the child is to be protected, and hence, it was ordered that the parties shall remain bound by the compromise dated 24.04.2021, which was on record. With the above submission, learned counsel prays that appropriate directions be issued to release the detenue from the illegal custody of respondent no. 2. 12. Per contra, learned Senior counsel for respondent No.2 has vehemently objected to the submissions made by the petitioner. It is submitted that the decree of divorce under Section 13-B of Hindu Marriage Act could not have been passed, in case, the affidavit of second motion would not have been filed. He submits that it is not only the petitioner, who had submitted that he is forgoing the visitation rights but also respondent No.2 in her affidavit acknowledged the said fact and accepted the stand taken by the petitioner that he wanted to forego his visitation rights towards his child. He further submitted that the concealment is fatal to the maintainability of the petition and the petitioner cannot be permitted to seek any relief from the Court by suppressing material facts. It is further submitted that the factum of second affidavit, is in fact, the main bone of contention between the parties and on the basis of the said affidavit only, the petitioner was not entitled to have any visitation rights of the child. It is further submitted that the factum of second affidavit, is in fact, the main bone of contention between the parties and on the basis of the said affidavit only, the petitioner was not entitled to have any visitation rights of the child. Counsel for the petitioner also submitted that the alleged legal notice is not on record and also does not find mention in the representation dated 07.07.2022. 13. Taking his arguments further, learned Senior counsel for respondent No.2 has also submitted that, in fact the petitioner had approached this Court by filing a contempt petition bearing COCP-1482-2022 on 13.07.2022 with an identical prayer, however, the same was dismissed as withdrawn on 08.09.2022 and the petitioner has not even disclosed this fact in the present petition. The petitioner cannot be permitted to abuse the process of law by filing repeated petitions by concealing material facts and documents. He further submits that even if for the sake of argument, it is presumed that the petitioner has some grievance, then the remedy available would be under section 28 or 28A of the Hindu Marriage Act, 1955. To summarize, learned Senior counsel for the respondent no. 2 submits that the petition deserves to be dismissed with exemplary cost and even otherwise, the basic ingredient for maintaining a habeas corpus petition does not survive as neither the alleged detenue is in any illegal detention nor it is a case that the petitioner is not aware about the whereabouts of the detenue, coupled with the fact that de hors the above, the detenue has been presented in the Court and hence no further order deserves to be passed except for dismissing present petition with exemplary cost. 14. I have heard the learned Senior counsels for the parties assisted by their associates and perused the record. 15. Before adverting to the facts of the present case, it is imperative to discuss the issue of concealment and practice of suppression of material averments and disclosure of all the necessary facts and documents to demonstrate the true and correct picture to enable the Court to pass legally sustainable order. The Hon'ble Supreme Court of India in the case of "Kishore Samrite v. State of U.P.," (2013) 2 SCC 398 , has observed as under: "29. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. The Hon'ble Supreme Court of India in the case of "Kishore Samrite v. State of U.P.," (2013) 2 SCC 398 , has observed as under: "29. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are: (i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with unclean hands. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief (ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. (iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court. (iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. (iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. (v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. (vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs. (vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants. (viii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114 ; Amor Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 ]. 30. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v. Arunachalam &Anr. (1980) 3 SCC 141 , the Court held: "15. The crucial significance of access jurisprudence has been best expressed by Cappelletti: "The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights." 16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of procession obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition." 31. It has been consistently stated by this Court that the entire journey of a Judse is to discern the truth from the vleadinss documents and arguments of the parties, as truth is the basis of the Justice Delivery System. 32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to vut forward false and exasperated claims and a litisant must avvroach the Court with clean hands. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to vut forward false and exasperated claims and a litisant must avvroach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the lesal process must be effectively curbed and the Court must ensure that there is no wronsful un-authorised or unjust sain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs. 33. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approachins the court, a litisant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litisant is not required to be dealt with lishtlv as a petition containins misleadins and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi &Anr. [ 1969 (1) SCC 110 ]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [ (2012) 6 SCC 430 ]; Chandra Shashi v. Anil Kumar Verma [ (1995) 1 SCC 421 ]; Abhyudya Sanstha v. Union of India & Ors. [ (2011) 6 SCC 145 ]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [ (2011) 7 SCC 639 ]; Kafyaneshwari v. Union of India &Anr. [ (2011) 3 SCC 287 )]. 34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et in juria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. The legal maxim jure naturae aequum est neminem cum alterius detrimento et in juria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands. 35. No litisant can vlav 'hide and seek' with the courts or adovt 'vick and choose'. True facts ousht to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [KD. Sharma v. Steel Authority of India Ltd. & Ors. [ (2008) 12 SCC 481 ]. 36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K Parasaran, (1996) 5 SCC 530 )." 16. It is settled principle of law that the exercise of jurisdiction of High Court under Article 226/227 of Constitution of India is not only extraordinary but also equitable and discretionary, and therefore, an unwritten duty is casted upon the petitioner to approach the Court not only with clean hands but also place on record all the relevant material and documents so that there is no miscarriage of justice. 17. 17. The said issue came up before a Division Bench of Hon'ble Jammu and Kashmir High Court in LPA No.20 of 2023, 2023(2)CivCC 789 in case titled as "Fayaz Ahmad Rather v. Union Territory of J& K and Ors." decided on 03.04.2023, which has laid down certain principles, which reads as under: "23. From the case law referred to hereinabove, we can possibly deduce following principles: (i) Jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. (ii) To invoke this extraordinary, discretionary and equitable jurisdiction, it is of utmost necessity that the petitioner approaching the Writ Court must come with clean hands and put forward all facts before the court without concealing or suppressing anything. (iii) A litigant is bound to state all facts which are material or relevant to the litigation. (iv) The litigant must candidly state all the facts before the court without reservation. He cannot be permitted to play "hide and seek" or to "pick and choose" the facts he likes to disclose and keep back or conceal other facts. (v) Jugglery, manipulation, manoeuvring or misrepresentation has no place in equitable and prerogative jurisdiction. (vi) Suppression of material facts, concealment of full details of litigation, present and past, between the parties qua subject matter of dispute, distortion or manipulation of relevant facts, misleading the court by stating false facts or withholding true facts disentitle a party to invoke equitable jurisdiction under Article 226 of Constitution of India. " 18. This Court also finds support from the dicta of the judgment passed by the Hon'ble Apex Court in case Civil Appeal Nos.7550-7553 of 2021, titled as "Shri K Jayaram & Ors. v. Bangalore Development Authority and Ors." decided on 08.12.2021 and has reiterated the well-settled position that the jurisdiction exercised by the High Court under Article 226 of Constitution of India is extraordinary, equitable and discretionary, and therefore, if a litigant withholds the relevant material or documents to gain advantage or demonstrate a picture, which is not true then it is equivalent to playing fraud with the Court and such actions have to be strongly condemned. The relevant observation of the Hon'ble Supreme Court of India in the said judgment reads as under: 16. The relevant observation of the Hon'ble Supreme Court of India in the said judgment reads as under: 16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law. 19. Now considering the factual matrix of the present case and taking support from the well-established principles of law as discussed above, the instant petition demonstrates that the petitioner approached this Hon'ble Court on two occasions, initially by filing a Contempt Petition bearing COCP No. 1482 of 2022 on 13.07.2022, wherein it was prayed as under: "Contempt petition under section 10 and 12 of the Contempt of Courts Act, 1971 against the respondent for Willful disobedience of final order and judgment dated 27.08.2021 in petition for mutual divorce numbered as PBLD-01-013444-2021 before learned Principal Judge, Family Court, Ludhiana whereby visitation rights allowed to meet his only son namely Sidak Veer Singh, was denied to the petitioner. " The above said contempt petition was dismissed as withdrawn on 08.09.2022 and subsequently after more than one month, the petitioner again approached this Court by filing the present petition and inter alia prayed as under: "That from the perusal of the above facts and circumstances, it is clear that the non-comvliance of respondent with the order dated 27.08.2021 of the learned Principal Judge, Family Court, Ludhiana amounts to motivated and deliberate action to violate judicial order in petition for mutual divorce numbered as PBLD-01-013444-2021 before Learned Principal Judge, Family Court, Ludhiana and obstruct and interfere with the administration of justice. " 20. " 20. Admittedly, the petitioner did not disclose in the present petition about the earlier contempt petition filed and moreso, in both the cases did not disclose that he had himself filed an affidavit dated 19.08.2021, which was duly exhibited before the Family Court as statement of second motion before grant of the decree of divorce. The importance of the said affidavit is that the petitioner was entitled to visitation rights as per the compromise deed dated 24.04.2021 as per clause 6 which reads as under: - "That the first party shall have supervised visitation rights to meet the child Sidakveer Singh on the last Sunday of every month at a mutually convenient public place after the decree of divorce. However, the day can be changed by the parties in case of some exigency. The review of arrangement of visitation rights regarding number of visits by the First Party to meet the child shall be considered by both the parties mutually after complete payment of amount detailed in para 5 above is made by first party to the second party and subject to compliance of the terms and conditions of this compromise deed. " However, vide the affidavit dated 19.08.2021 exhibited on 26.08.2021, specifically waived off the rights of visitation in the said affidavit and the relevant averment is as under: "The petitioner no.2 is admitted as sole guardian of the minor from now onwards for all intents and purposes. The complete and absolute custody of minor shall remain with the petitioner no.2 and she shall be competent to take all decisions with regard to minor solely without any interference of the deponent. That, out of freewill and volition, I have completely given up all my rights with regard to the child Sidak Veer Singh as well as I have also completely given up my rights of visiting the minor child on last Sunday of every month (as mentioned in the compromise deed annexedas (Annexure-A). The 2nd party shall be responsible for upbringing, studies and any other decisions concerning Sidak Veer Singh. " It was further submitted in para 5 of the said affidavit as under: "5. That any disputes with regard to the compromise deed dated 24.04.2021 and the present's supplementary compromise deed, or any violation with regard to above shall call for initiation of legal proceedings against either of the parties. " 21. " It was further submitted in para 5 of the said affidavit as under: "5. That any disputes with regard to the compromise deed dated 24.04.2021 and the present's supplementary compromise deed, or any violation with regard to above shall call for initiation of legal proceedings against either of the parties. " 21. It is pertinent to mention here that the said arrangement, whereby the petitioner waived off his visitation rights as agreed in the compromise deed dated 24.04.2021 was acknowledged by the respondent-wife in her affidavit dated 19.08.2021(Annexure R-2/7), which was also exhibited on 26.08.2021 (AnnexureR-2/8) and the relevant averments reads as under: "The deponent is admitted as sole guardian of the minor from now onwards for all intents and purposes. The complete and absolute custody of minor shall remain with the petitioner no.2 and she shall be competent to take all decisions with regard to minor solely without any interference of the deponent. That, out of free will and volition, the petitioner no. 1 has completely given up all his rights with regard to the child Sidak Veer Singh as well as he have also completely given up the rights of visiting the minor child on last Sunday of every month (as mentioned in the compromise deed annexed as Annexure A. 5. That any disputes with regard to the compromise deed dated 24.04.2021 and the present's supplementary compromise deed, or any violation with regard to above shall call for initiation of legal proceedings against either of the parties. " A perusal of the above especially para 5 of the said affidavit, amends the compromise deed dated 24.04.2021 qua the visitation rights of the petitioner and hence was a vital and important document in the present proceedings. 22. A joint reading of both the Clauses of the affidavit dated 19.08.2021, clearly demonstrates that the parties had willfully without any coercion or pressure had amended the terms of compromise dated 24.04.2021, and therefore, it was incumbent upon the petitioner to have disclosed this fact. Accordingly, the petitioner being guilty of concealment of material facts and documents, which led the Court to initially believe and presume that his rights have been violated and led to passing of the initial orders, and also framing of certain questions of law. Accordingly, the petitioner being guilty of concealment of material facts and documents, which led the Court to initially believe and presume that his rights have been violated and led to passing of the initial orders, and also framing of certain questions of law. In the totality of the circumstances and coupled with the established principles of law as discussed above, the concealment made by the petitioner is fatal and the instant petition deserves to be dismissed on this score alone. 23. The learned Senior counsel for the petitioner has further taken his arguments that this Hon'ble Court intervened in the matter and vide order dated 29.10.2022, issued notice and subsequently, the Court had framed the issues vide order dated 22.11.2022, however, the learned Senior counsel of respondent No.2 submits that the said issues were framed due to concealment and misrepresentation by the petitioner and moreso, in the present case, the parties have already been divorced and are not litigating qua their matrimonial discord before any Court, therefore, the issue of custody of child did not arise at all, as the same stood already settled and established in terms of the affidavit filed by the petitioner. 24. After hearing the counsel for the parties, the said issues framed by predecessor of this Court are kept open and shall be adjudicated in an appropriate case and requires no finding at this stage. 25. However, this Court feels it necessary to return a finding on the issue of maintainability of the habeas corpus petition in the present set of circumstances and after considering the matter in its entirety, I am of the opinion that the petitioner has not placed on record the legal notice dated 22.10.2021 and neither the same finds place in the representation dated 07.07.2022 (Annexure P-3) meaning thereby that the first date of lodging any claim to seek visitation right was on 07.07.2022 and the petitioner choose to remain silent for almost one year after passing of decree of divorce. 26. More so, as per the definition of the word "habeas corpus" in a layman language means to "produce the corpus". Admittedly, the alleged detenue-child has been produced and is in safe custody of the mother, who is also supported by her parents and learned Senior counsel for the petitioner has very fairly admitted that the child is living with the maternal grandparents and is safe. Admittedly, the alleged detenue-child has been produced and is in safe custody of the mother, who is also supported by her parents and learned Senior counsel for the petitioner has very fairly admitted that the child is living with the maternal grandparents and is safe. The alleged detenue being in custody of the natural mother who has been divorced cannot be said to be in illegal custody nor be in any illegal detention. 27. This Court feels that de hors the fight of egos between the parents continues but the welfare and interest of the child are paramount for this Court and the petitioner could not demonstrate, much less with any cogent proof that the child is not being nurtured and nourished in a safe and warm environment. 28. It is admitted position by the parties and this Court extend its credit to the leaned Senior counsel for the petitioner, who fairly submitted that despite two meetings of the petitioner with the child, no congenial or positive reaction could be found, though he submitted that the child has purposefully been tutored by the mother, however, the fact remains that the child is being brought up by the mother on her own for the last five years. The psychology and tender mind of the child cannot be played with and he cannot be made a shuttlecock to be passed on repeatedly to either of the parent. In the present case, the reaction of the child of being uncomfortable in the company of the father seems to be natural, and hence, protecting the fundamental rights of the child, who is also a citizen of this country and the only difference is that he has taken birth after 32 years of the parents, will not change the same. The process of law is to protect the fundamental rights of each and every citizen, and hence, considering the best interest of the child and to avoid any mental or psychological apathy to the child, the custody of the child is safely secured with his mother. 29. In the present case, the child has been produced and is safe, and hence, the present petition does not survive. 29. In the present case, the child has been produced and is safe, and hence, the present petition does not survive. Therefore, it is held that the present petition was not maintainable for the reason that neither the child was in any illegal detention nor it was the case that the whereabouts of the alleged detenue are not known, specially in the backdrop of the fact that the parents already stand divorced. 30. This Court and these proceedings cannot be made a tool and used for restoring the visitation rights of the petitioner which he himself has waived off in his affidavit dated 19.08.2021 and he has not approached the Court of competent jurisdiction for redressal of his grief till date. However, still to balance equity, the petitioner is at liberty to exercise his rights if available in accordance with law before the appropriate forum much less not in a Writ Court. 31. In light of the above and keeping in mind the interest and welfare of the child and his over-all growth as paramount, the present petition is dismissed on the ground of concealment of material facts and documents, as well as, on merits, as the custody of the child with the mother, which is by virtue of a compromise supplemented by the affidavit filed by the parties before the Family Court and the fact that the parties have been divorced, petitioner has miserably failed to demonstrate that the alleged-detenue is in illegal detention, or it is a case that the whereabouts of the alleged-detenue are not known. The custody with the mother cannot be held to be illegal detention. Hence the petition deserves dismissal. 32. Though the concealment has been proved and it is a fit case to impose exemplary cost to deter the person like petitioner to abuse the process of law, this court by taking a lenient view restrains itself from imposing costs on petitioner. 33. Pending miscellaneous application(s), if any, also stands disposed of.