The Madhya Pradesh High Court recently comprising of a bench of Justices Vivek Rusia and A.N. Kesharwani held that as per Article 226 of the constitution the Court cannot issue a writ of habeas corpus against an individual residing outside the territory of India. (PREETI KAUSHALAY versus THE UNION OF INDIA AND ORS.)
Facts of the case
The petitioner has filed the present Writ Petition seeking writ in the nature of habeas corpus for securing the custody of seven months old girl child who is at present under the custody of her father i.e. respondent No.5 who is residing in Netherland.
The marriage of the petitioner was solemnized with the respondent No.5 under Hindu rituals and customs at Maheshwar. After the marriage, the petitioner went to the house of in-laws at Khargone. According to the petitioner, after two days of the marriage, she was subjected to cruelty for demand of dowry. Thereafter, she shifted at the work place of respondent No.5 at Paris (France).
She came back to Khargone and thereafter the respondent No.5 shifted to Abu Dhabi (Dubai) and after two and half years they were shifted to Netherland. She became pregnant at Netherland and she gave birth to a daughter.
She was subjected to harassment and cruelty by respondent No.5 for which the Netherland police has directed respondent No.5 to remain away from the petitioner and her child. Since, the petitioner was unable to survive without financial support so she left the Netherland and came back to India.
According to the petitioner under local Rules and Laws, she was not permitted to travel with child to India without the consent of the respondent No.5. Since it was impossible for her to reside in Netherland without any source of income, therefore, she had no option but to return to India without her child.
Since then the infant child is in the custody of her father i.e. respondent No.5. The petitioner has registered the case under Section 498-A, 506 of IPC and Section 3 & 4 of Dowry Act against the respondent No.5 and his family members at Police Station Maheshwar . Now the petitioner has filed the present petition seeking writ of habeas corpus in order to secure the custody of the minor child.
Moreover, notices issued by this Court have not been served to respondent No.5 through the Embassy.
Issue before the Court
Whether this Court can issue a writ of habeas corpus against the person who is residing outside the territory of India.
Courts Observation and Judgment
The court taking note of Article 226 of the Constitution noted, "It is clear from the aforesaid, the High Court shall have the power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including any government within whose territories directions, order or writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
Therefore, the high Court can issue a writ under Article 226 of the Constitution of India to any person within its territory, thus, this writ petition is not maintainable and liable to be dismissed on this ground alone. Even otherwise admittedly, the respondent No.5 is biological father of corpus, therefore, the custody cannot be said to be illegal for issuance of writ in the nature of habeas corpus."
The bench further noted, "Shri Joshi standing counsel for the Union of India has placed reliance on the judgment passed by the Division Bench of Kerala High Court at Ernakulam in case of Adarsh Kumar Vs. State of Kerala 2017 SCC Online Ker 8505 in which the similar facts and circumstance the Division Bench of Kerala High has declined to issue writ of habeas corpus."
The bench dismissing the petition remarked "At this stage, counsel for the petitioner submits that he may be permitted to file appropriate application for impleading the parents of the respondent No.5 who are residing at Khargone. They are not necessary party in this petition as corpus is not their custody. Merely they are parents of the respondent No.5, they cannot be dragged into litigation. The petitioner may avail the remedy provided under Law. In view of the above, writ petition is hereby dismissed."
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