Chattisgarh High Court
Amol Kumar Suhane vs Smt. Ritu Suhane on 11 February, 2022
1
AFR
(Proceeding through Video Conferencing)
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (H.C.) No. 12 of 2021
Amol Kumar Suhane, S/o Late Shri Narayan Das Suhane, aged 40
years, resident of Samta Colony, near Agrasen Chowk, Raipur, District
Raipur (C.G.) Mobile No. - 87703 -59163
---- Petitioner
Versus
1. Smt. Ritu Suhane, wife of Shri Amol Kumar Suhane, daughter of Shri
Surendra Gupta, aged - 39 years, Mobile No. - 87705 - 33061
2. Surendra Gupta, son of Late Babulal
3. Roshni Gupta, daughter of Surendra Gupta, aged 30 years,
4. Naman Gupta, son of Surendra Gupta, aged 28 years,
All are resident of - Block-A, Flat No. A-305, Third Floor, Ratan Golden
Nest, Near Springvelly, Katra Hils, Police Station Katra Hills, Bhopal,
District Bhopal (M.P.)
---- Respondents
(Cause-title taken from Case Information System)
For Petitioner : Mr. Amol Kumar Suhane, petitioner in person.
For Respondents : Mr. Awadh Tripathi, Advocate.
Reserved on 25-01-2022
Judgment delivered on 11-02-2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K. Chandravanshi, Judge
CAV JUDGMENT
2
Per N.K. Chandravanshi, J.
1. By means of present petition under Article 226 of the Constitution
of India, the petitioner has invoked extraordinary jurisdiction of this
Court with a prayer that respondents be directed to release the wife /
respondent No. 1 and their daughter - Manya from wrongful restrain of
respondents.
2. The petitioner's marriage was solemnized with respondent
No. 1 -Smt. Ritu Suhane on 2.2.2012 as per Hindu rites and customs.
On 23.7.2014, they were blessed with one daughter, namely, Manya.
But as per averments made in the petition, due to unnecessary
interference of family members of maternal side of respondent No. 1,
she used to go to her maternal home frequently, from where petitioner
brought her back. But on 28.11.2016, respondent No. 1 alongwith her
daughter baby Manya left her matrimonial home on her own will, and
thereafter, residing with her parents. Since beginning the petitioner is
having love & affection for his wife and daughter but respondent
No. 1/wife, without any sufficient and valid reasons, has deprived him
from his marital and parental right. It is further stated that despite
granting visiting rights to the petitioner to meet his daughter by the Court
vide order dated 20.11.2018, respondents did not allow him to meet his
daughter. Even she did not permit the petitioner to talk over telephone
with his daughter and respondents No. 2 to 4 are pressrising
respondent No. 1 to seek divorce from the petitioner. The petitioner
made numerous attempts to bring his wife and daughter back. Even he
has filed petition under Section 9 of the Hindu Marriage Act, 1955 in the
Court of Additional Principal Judge, Family Court, Raipur but he did not
succeed to bring them back, and therefore, he has filed the instant
habeas corpus petition.
3. Petitioner appearing in person would submit that his wife
(respondent No. 1 herein) has left her matrimonial home alongwith their
daughter without any sufficient and valid reasons and she has filed the
cases under Section 21 of the Protection of Women from Domestic
Violence Act, 2005 (henceforth "Act, 2005") against him and also for
getting maintenance, in the Court of Begumganj, District Raisen (M.P.),
which has no jurisdiction to hear the matter. He would further submit
that vide order dated 20.11.2018, he has been granted visiting right from
3:00 P.M. to 6:00 P.M. on every Friday to meet his daughter by the
Court, but he has never been allowed by respondents to meet his
daughter. He would also submit that respondents have deprived him to
show his love and affection for his daughter since last six years. Even
respondents do not permit him to talk to his daughter over phone. Due
to inducement made by his in-laws, respondent No. 1/wife is harassing
him by keeping away from matrimonial and parental enjoyment. The
respondents are creating pressure for divorce, so that they could get
handsome alimony from the petitioner.
4. Learned counsel appearing for the respondents has filed reply-
affidavit and while referring to the same, he would raise preliminary
objection with regard to maintainability of habeas corpus petition
contending that it is a dispute between husband and wife, and
continuous harassment and cruelty were meted out by the petitioner to
respondent No. 1/wife and on 28.11.2016, he badly beat the respondent
No. 1 and threw them i.e. respondent No. 1 and their daughter baby
Manya from his home, and therefore, respondent No. 1 informed the
police of Police Station Azad Nagar, Raipur and went to her parental
home along with her daughter baby Manya. He further contended that
in the present fact situation of the case, habeas corpus petition is not
maintainable. If the petitioner wants custody of his daughter and
conjugal rights, then in that regard, efficacious remedy is available
under the Guardians and Wards Act, 1890 / Hindu Marriage Act, 1955,
which petitioner has already availed before the competent court of
Raipur / Bhopal. Even respondent No. 1/wife herself has filed case
under the Protection of Women from Domestic Violence Act, 2005
against the petitioner, which is pending consideration before the
Additional Chief Judicial Magistrate, Begamganj, District Raisen (M.P.)
and execution proceedings for maintenance is also pending between
them. It is further contended that petitioner has been granted visiting
rights from 3:00 P.M. to 6:00 P.M. on every Friday by the Court of
Begumganj, District Raisen (M.P.) to meet his daughter baby Manya but
except for one occasion, neither he has availed his visiting rights nor
has filed any application before the concerning court with regard to
deprivation of his right. Instead, he has chosen to file this habeas
corpus petition to release his wife and daughter from alleged wrongful
restrain of the respondents. But he did not make any averment in his
petition who and in what manner, had restrained his wife and daughter.
He has also not made the State Government as a party respondent in
this habeas corpus petition. Therefore, this habeas corpus petition is not
maintainable on this count also.
5. Learned counsel for the respondents further submitted that soon
after marriage, petitioner started harassing and torturing the respondent
No. 1/wife in connection with demand of dowry. Petitioner and his
family members were also not happy on the birth of female child baby
Manya, as they wanted a male child. Due to harassment and humiliation
meted out by the petitioner and his family members and also ousting her
from their home along with her two year old daughter, she is residing
with her parents in Bhopal, who are taking full care and well being of
respondent No. 1/wife and her daughter. It is further submitted that the
petitioner has filed an application before the Family Court, Bhopal under
Guardians and Wards Act, 1890 for custody of his daughter baby
Manya, which has been registered as MJC GW 40/2019. He has also
filed an application under Section 9 of the Hindu Marriage Act, 1955,
which is pending consideration before the Family Court, Raipur.
Respondent No. 1/wife has filed an application under Section 21 of The
Protection of Women from Domestic Violence Act, 2005 against the
petitioner, in the court of Additional Chief Judicial Magistrate,
Begumganj, District Raisen (M.P.), before whom execution of
maintenance amount is also pending. Thus, various cases are pending
between the petitioner and respondent No. 1 before the various courts.
More so, issue of custody of baby Manya could be very well decided in
the case filed by the petitioner under Guardians and Wards Act, 1890
before Family Court, Bhopal, and therefore, in the aforesaid facts and
circumstances of the case also, the petitioner is not entitled for the
relief, as sought for by him, in this habeas corpus petition.
6. In reply, referring to the rejoinder-affidavit, petitioner in person
would submit that, on the preliminary objection relating to lack of
jurisdiction raised by him, case of the Protection of Women from
Domestic Violence Act, 2005 has been dismissed by the Court of
Judicial Magistrate, Begumganj, District Raisen (M.P.) for want of
jurisdiction. He would further submit that he has filed an application
before the Family Court, Bhopal for withdrawal of his case filed under
Guardians and Wards Act, 1890 (but he has not filed any document
with regard to aforesaid contention). He further contended that
allegations of cruelty meted out by the petitioner in connection with
demand of dowry on the respondents is found false and baseless by the
police, therefore, no offence has been registered against the petitioner.
He has also denied that he was not happy on the birth of female child
Manya. It is further submitted that there is no dispute between petitioner
and respondent No. 1/wife but respondents No. 2 to 4 are restraining
him to meet his wife and daughter baby Manya, and therefore,
preliminary objection raised by respondents is without any merit.
7. We have heard the petitioner in person and learned counsel
appearing for the respondents and perused the material available on
record with utmost circumspection.
8. Admittedly, in the instant case respondent No. 1/wife of petitioner
along with her daughter Manya, aged about 7 ½ year are residing with
her parents in Bhopal (M.P.). On 25.01.2022, respondent No. 1 and
their daughter baby Manya had appeared before this Court through
video-conferencing from Bhopal. We have interacted with them for a
fairly long time. While interacting, respondent No. 1 told that she along
with her minor daughter baby Manya are residing in Bhopal with her
parents on her own will and wishes and presently Baby Manya Suhane
is studying in class -II. Respondent No. 1 also told that she takes tuition
of children to earn her livelihood and her parents are taking care and
well being of her and her daughter also. She also told that they do not
want to reside with the petitioner because once she tried to settle the
matter and went back to her matrimonial home, but the petitioner did not
change his behaviour towards them, and therefore, she does not feel
safe to reside with the petitioner.
9. As per contention made by both the parties, it is evident that the
petitioner has filed case against the respondent No. 1/wife under
Section 9 of the Hindu Marriage Act, 1955 in Family Court, Raipur
(C.G.); he has also filed an application, registered as MJC No. GW
40/2019 for custody of his daughter baby Manya in the Family Court,
Bhopal. Respondent No. 1/wife has filed a case against the petitioner
under Section 21 of the Protection of Women from Domestic Violence
Act, 2005 in the court of Additional Chief Judicial Magistrate,
Begumganj, District Raisen (M.P.). According to the counsel for the
respondents, execution of maintenance case is also pending between
them. Thus, it is clear that various cases including custody of baby
Manya is pending between the petitioner and respondent No. 1.
10. In the instant case, it is not in dispute that respondent No. 1/wife
along with her daughter baby Manya are residing with her parents on
her own will and wishes. It is also not disputed that petitioner and
respondent No. 1 both are husband and wife and baby Manya Suhane,
aged about 7 ½ year is their daughter and she (Manya Suhane) is in
safe custody of her natural guardian mother i.e. respondent No. 1. With
regard to the reasons for living separately from each other, petitioner
and respondent No. 1 have made allegations and counter allegations
against each other. Since a case is pending between them, hence, their
matrimonial / conjugal right could be decided by the Family Court,
Raipur in the petition filed by the petitioner under Section 9 of the Hindu
Marriage Act, 1955.
11. So far as custody of baby Manya is concerned, she is in safe
custody of her natural guardian mother i.e. respondent No. 1 and except
mother, no-one is best protector of the interest and well being of a girl
aging about 7 ½ year as baby Manya is at present. The petitioner has
not produced any material on record to show that respondents No. 2 to
4 had detained the respondent No. 1/wife and respondent No. 1/wife
has detained her daughter, baby Manya, illegally, in violation of the
any court's order. In absence of the orders passed by any of the Courts,
custody of minor daughter with the mother cannot be held to be
unlawful. Petitions for habeas corpus are filed for the person, for whose
release the petition is filed, must be in 'detention' by the authorities or by
any private individual. It is the 'detention', legal or illegal, which gives a
cause of action for maintaining the writ of habeas corpus. In this case,
as has been stated above that respondent No. 1/wife is residing with her
parents along with her daughter baby Manya on her own will and
wishes, which cannot be held to be unlawful or illegal detention. If there
is any grievance against respondents with regard to right of custody of
baby Manya, in all fairness, petitioner could have filed petition seeking
custody of baby Manya before the Family Court, which is said to have
already been filed by him. Although, the petitioner has submitted that
he has filed an application before the Family Court, Bhopal for
withdrawal of petition filed by him for custody of baby Manya under
Guardians and Wards Act, 1890 but he has not submitted any document
to show that the aforesaid case has been withdrawn by him. Assuming
that it is so, it is not understood why the petition was withdrawn.
12. It is also pertinent to mention here that the petitioner has prayed
for direction to release his wife (respondent No. 1) and his minor
daughter Manya from wrongful restrain of respondents but he has not
made any averments in this writ petition that how and in what manner
respondents have restrained them.
13. In view of above, we find that instant habeas corpus petition as
framed and filed is not maintainable. Hence, instant writ petition is
dismissed as not maintainable. However, the petitioner is set at liberty to
avail the remedy under the law for redressal of his grievances.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
Chief Justice Judge
Dubey/-
