Manoj Sharma And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 28050 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195506
 
Court No. - 81
 
Case :- HABEAS CORPUS WRIT PETITION No. - 856 of 2023
 
Petitioner :- Manoj Sharma And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Prem Babu Verma,Anita Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Prem Babu Verma, learned counsel for the petitioners and Sri L.D. Rajbhar, learned AGA for the State.

2. This habeas corpus writ petition has been filed on behalf of the minor-Master Bansh, aged about 13 years (corpus) through his father-Manoj Verma (petitioner no. 1) against Smt. Gudiya @ Raj Kumari (respondent no. 4).

3. The submissions of the petitioners are that the respondent no. 4 got married to the petitioner no. 1, without disclosing the fact that she was already married to some other person. From this marriage, two sons were born. It is further submitted that the petitioner no. 1 filed a case i.e., case no. 1269 of 2013 (Manoj Kumar vs. Gudiya) under section 11 of the Hindu Marriage Act, and this marriage was declared void by order of court concerned dated 19.5.2017. (Perusal of the papers reveal that the marriage was declared void by passing an ex-parte judgment in petitioner's favour.) It is further said that, by mutual consent, the parties executed a divorce deed. And they have been living separately since then. The son of the petitioner no. 1, born out of this void relationship, is in illegal custody of respondent no. 4, as they had settled that he shall stay with his father.

4. In the light of submission of the petitioners, I went through the papers on record.

Following facts emerge:-

(i) The petitioner no. 1 obtained an ex-parte decree on 19.5.2017 declaring their marriage as void.

(ii) Before this decree, they admittedly executed a settlement on 9.6.2013, in which one of the terms and conditions was that the kids born out of this wedlock shall stay with the husband.

(iii) The petitioner no. 1 filed an application before the Family Court under section 25 of the Guardians and Wards Act for obtaining the guardianship and consequent custody of the corpus, however the same was rejected by the court concerned vide order dated 7.4.2023.

5. The petitioner no. 1 could not explain the need for executing a mutual divorce settlement deed when as per his own submissions, the marriage was void and was also declared so by competent court. This legal position remains intact that whatever the nature of marriage, the relationship of mother and son remains intact and that the custody of a child with his mother, cannot be termed as 'illegal' from any angle. The settlement or divorce deed is devoid of any legal sanctity, hence no relief can be given on the basis of that deed.

6. In my view, the petition lacks merit and is liable to be dismissed.

Order Date :- 11.10.2023

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