Jammu & Kashmir High Court
Reserved On: 23.04.2024 vs Ut Of Jammu And Kashmir Th. ... on 3 May, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 21/2024
Reserved on: 23.04.2024
Pronounced on : 03. 05.2024.
1 Aarav Sharma minor through father/natural guardian, Ajay
Sharma,petitioner No.2.
2. Ajay Sharma son of Sh. Tarlochan Dutt Sharma both residents of
House No. 68/69 Sector 8 Nanak Nagar near Blooming Dale School
Jammu
...Petitioners
Through: - Mr. Adarsh Sharma, Advocate.
Vs.
1 UT of Jammu and Kashmir th. Commissioner/Secretary to
Government, Home Department.
2 Senior Superintendent of Police,Jammu
3 Station House Officer Gandhi Nagar
4. Deepshika wife of Ajay Sharma resident of House No. 58/2 Sanjay
Nagar Jammu at present Kalyan Mumbai
5 Apoorva Jain daughter of Jitinder Jain resident of House No.10 Ward
No. 26 Subash Path Vidisha MP at present Kalyan Mumbai
...Respondents
Through: - Mr. Pawan Dev Singh Dy.AG for R-1 to 3.
Mr. Ayushman Kotwal Advocate for R-4
None for R-5.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 Petitioner No.2, through the medium of present petition, has
sought a writ of Habeas Corpus against the official respondents seeking
production of his minor son (petitioner No.1) and to handover his
custody to him. In the petition, it has been alleged that marriage between
petitioner No.2 and respondent No.4 was solemnized on 04.02.2013 at
Jammu and out of this wedlock, petitioner No.1 was born on 19.08.2014.
It has been further submitted that respondent No.4, after six months of
marriage, started misbehaving with petitioner No.2 and his family
members and despite best efforts on the part of petitioner No.2 and his
family members, the things did not improve.
2 On 01.09.2020, respondent No.4 without any justifiable
cause left her matrimonial home after quarreling with petitioner No.2
and started living separately. She also took the custody of her minor son
(petitioner No1). It has been submitted that respondent No.4 filed a
petition under Section 12 of Protection of Women from Domestic
Violence Act against petitioner No.2 and his family members before the
Court of Special Excise Mobile Magistrate, Jammu, but the same was
dismissed by the learned Magistrate on 11.03.2022 for non-prosecution
and that application for its restoration is pending before the same Court.
It has been further submitted that a petition under Section 13 of Hindu
Marriage Act has also been filed by respondent No.4 against petitioner
No.2 which is pending before the Principal Judge, Family Court Jammu.
3 According to petitioner No.2, respondent No.4 developed
intimacy with respondent No.5 and she started living with her initially at
Sanjay Nagar, Jammu along with her minor son (petitioner No.1) and
thereafter, she left for Mumbai and shifted her son without consent of
petitioner No.2. It has been submitted that petitioner No.2 also went to
Mumbai and stayed with respondents No. 4 and 5 for about 15 days, but
he was maltreated by them, as a result of which, petitioner No.2 came
back to Jammu. It has been further submitted that petitioner No.1, the
minor son was willing to accompany petitioner No.2 when he left for
Jammu from Mumbai, but he was not allowed to accompany him.
Petitioner No.2 is also stated to have approached the police with a
complaint against respondents 4 and 5, but no action has been taken.
According to petitioner No.2, his minor son (petitioner No.1) is under
illegal custody of respondents 4 and 5. Hence, the present petition.
4 Notice of the petition was issued to the respondents and
respondent No.4 was also directed to produce petitioner No.1 before the
Court. Pursuant thereto, Sh. Ayushman Kotwal entered appearance on
behalf of respondent No.4 and respondent No.4 also appeared in person
before this Court along with her minor son (petitioner No.1) on
23.04.2024. Mr. Kotwal, learned counsel raised a preliminary objection
as regards the maintainability of the petition. He has contended that the
instant petition is not maintainable, for the reason that the custody of
minor son with her mother, cannot be termed as 'illegal detention',
therefore, a petition in the form of Habeas Corpus cannot be maintained.
5 I have heard learned counsel for the parties on the question
of maintainability of the petition and perused the record.
6 Learned counsel appearing for petitioner No.2 has
contended that the circumstances in which respondent No.4 has taken
over the custody of petitioner No.1, the minor son, clearly indicates that
he has been illegally detained. The learned counsel has submitted that
the behavior of respondent No.4 towards petitioner No.2 has all along
been cruel in nature and that the minor son desires to live with his father,
but he is being prevented from doing so by respondents 4 and 5. Learned
counsel for petitioner No.2 has contended that while considering the
maintainability of a Habeas Corpus petition, the Court has to take into
account the best interest of the minor child and in the instant case, the
best interest of petitioner No.1 lies in his residing in company of his
father. To buttress his contention, learned counsel has relied upon a
judgment of the Supreme Court in the case of Yashita Sahu vs State of
Rajasthan and others, AIR 2020 SC 577.
7 Learned counsel for respondent No.4, on the other hand, has
contended that petitioner No.2 cannot maintain a writ in the form of
Habeas Corpus against the mother of minor child, as custody of a minor
son with his mother, can never be termed as 'illegal' in nature. It has
been contended that, if, at all, petitioner No.2 has any grievance with
regard to custody of minor son with her mother, the proper course for
him is to approach the Family Court and seek an order of custody under
the provisions of Guardians and Wards Act.
8 The question, that is required to be determined in this case,
is as to whether a writ in the nature of Habeas Corpus seeking a
direction upon the official respondents to produce petitioner No.1, the
minor child so as to handover his custody to petitioner No.2, his father,
can be maintained before this Court.
9 There is no dispute to the fact that petitioner No.2 happens
to be the husband and respondent No.4 happens to be his wife. It is also
not in dispute that, out of the said wedlock, petitioner No.1, who is aged
about 10 years, was born. Petitioner No.2 has admitted that the custody
of his minor child is presently with respondent No.4, the mother, who
happens to be his natural guardian. It is also discernible from the
pleadings filed by petitioner No.2 that there is a matrimonial discord
going between petitioner No.2 and respondent No.4 regarding which
proceedings under the Protection of Women from Domestic Violence
Act are pending before the learned Magistrate and a petition under
Section 13 of Hindu Marriage Act is pending before the Family Court.
10 The question arises as to whether in such a scenario, a
petition for grant of writ of Habeas Corpus can be maintained by one
parent to seek custody of minor child from another parent. This issue has
been a matter of deliberation and discussion in a number of cases before
the Supreme Court. It would be apt to refer to one such decision of the
Supreme Court so as to understand the legal position on this issue.
11 In Tejaswani Gaud and others vs. Shekhar Jagdish
Prasad Tewari and others, (2019) 7 SCC 42, the Supreme Court has,
while considering the aforesaid issue, observed as under:
"19. Habeas corpus proceedings is not to justify or examine
the legality of the custody. Habeas corpus proceedings is a
medium through which the custody of the child is addressed
to the discretion of the court. Habeas corpus is a
prerogative writ which is an extraordinary remedy and the
writ is issued where in the circumstances of the particular
case, ordinary remedy provided by the law is either not
available or is ineffective; otherwise a writ will not be
issued. In child custody matters, the power of the High
Court in granting the writ is qualified only in cases where
the detention of a minor by a person who is not entitled to
his legal custody. In view of the pronouncement on the issue
in question by the Supreme Court and the High Courts, in
our view, in child custody matters, the writ of habeas corpus
is maintainable where it is proved that the detention of a
minor child by a parent or others was illegal and without
any authority of law.
20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases
arising out of the proceedings under the Guardians and
Wards Act, the jurisdiction of the court is determined by
whether the minor ordinarily resides within the area on
which the court exercises such jurisdiction. There are
significant differences between the enquiry under
the Guardians and Wards Act and the exercise of powers by
a writ court which is of summary in nature. What is
important is the welfare of the child. In the writ court, rights
are determined only on the basis of affidavits. Where the
court is of the view that a detailed enquiry is required, the
court may decline to exercise the extraordinary jurisdiction
and direct the parties to approach the civil court. It is only
in exceptional cases, the rights of the parties to the custody
of the minor will be determined in exercise of extraordinary
jurisdiction on a petition for habeas corpus.
21. In the present case, the appellants are the sisters and
brother of the mother Zelam who do not have any authority
of law to have the custody of the minor child. Whereas as
per Section 6 of the Hindu Minority and Guardianship Act,
the first respondent- father is a natural guardian of the
minor child and is having the legal right to claim the
custody of the child. The entitlement of father to the custody
of child is not disputed and the child being a minor aged 1½
years cannot express its intelligent preferences. Hence, in
our considered view, in the facts and circumstances of this
case, the father, being the natural guardian, was justified in
invoking the extraordinary remedy seeking custody of the
child under Article 226 of the Constitution of India".
12 From a perusal of the aforesaid analysis of law on the
subject, it is clear that, in child custody matters, the power of the High
Court in granting the writ is confined only to the cases where detention
of a minor is by a person who is not entitled to his legal custody. Thus,
when custody of a minor child is with a parent or any other person
without any authority of law, the same would become illegal and the
High Court would get jurisdiction to issue a writ in the nature of Habeas
Corpus for production of such minor child and decide about his/her
custody.
13 Adverting to the facts of the present case, the custody of
minor child is with respondent No.4, who happens to be his mother. It is
not the case of petitioner No.2 that custody of minor child was handed
over to him by any Court or authority and that respondent No.4 is
holding the custody of petitioner No.1 in violation of any direction of the
Court. In the absence of any orders passed by any Court with regard to
the custody of the minor son, his custody with mother cannot be held
unlawful.
14 In order to present a Habeas Corpus petition for release of a
person, it has to be shown that such person is in detention of any
authority or of any private individual. If the contents of the petition do
not disclose detention of a person, there is no cause for maintaining the
said petition. As already indicated, in the present case, the contents of
the writ petition do not show that petitioner No.1 has been detained by
respondent No.4. What is revealed from the contents of the present
petition is that the custody of petitioner No.1 is with his mother who
happens to be his natural guardian. Thus, the petition does not disclose
any cause of action in favour of petitioner No.2
15 So far as the judgment relied upon by learned counsel for
the petitioner No.2 is concerned, in the said case, wife had brought the
minor to India in violation of orders of the jurisdictional Court in USA
and, as such, the custody of the child was termed as 'illegal'. It is in
those circumstances that the Supreme Court held that a writ of Habeas
Corpus was maintainable. In the present case, as already stated
hereinbefore, there is no Court order prohibiting respondent No.4 from
having the custody of her minor son, therefore, the ratio laid down in
Yashita Sahu's case (supra) cannot be made applicable to the facts of the
present case.
16 In the present case, it seems that petitioner No.2 has
approached this Court without exhausting the alternative and effective
remedy of approaching the Family Court,where a petition under Section
13 of Hindu Marriage Act is pending and the petitioner No.2 could have
easily applied to the said Court for grant of interim custody of the child
in terms of Section 26 of the said Act. Having regard to the fact that
respondent No.4 is admittedly having the custody of minor child for the
last about 4 years ever since she has left the company of petitioner No.2,
there are no extraordinary circumstances that would persuade this Court
to entertain the present petition despite the existence of alternative and
effective remedy of approaching the Family Court which is available to
petitioner No.2. The issue, whether it would be in the interest of the
minor child to handover his custody to his father, can be determined only
after a detailed enquiry, therefore, it would not be appropriate for this
Court to exercise its extraordinary writ jurisdiction.
17 For the foregoing reasons, the instant writ petition is held to
be not maintainable and the same is dismissed accordingly, leaving it
open to petitioner No.2 to work out proper remedy.
(Sanjay Dhar)
Judge
JAMMU
03.05.2024
"Sanjeev ' Whether order is reportable:Yes
