Gaurav Raj Jain vs State Of Karnataka
2022 Latest Caselaw 64 Kant

                              1
                                                               R
        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF JANUARY, 2022

                             PRESENT

             THE HON'BLE MR. JUSTICE B. VEERAPPA

                              AND

               THE HON'BLE Mrs. JUSTICE M.G. UMA

                WRIT PETITION (HC) NO.109/2021

BETWEEN:

GAURAV RAJ JAIN
AGED ABOUT 40 YEARS,
S/O MUKESH KUMAR JAIN
FLAT NO 103,
A1 SREE UTOPIA APT.
KADABISANHALLI,
BANGALORE - 560 103
                                                   ... PETITIONER
(BY SRI. ANISH JOSE ANTONY, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY
       HOME DEPARTMENT,
       VIDHANA SOUDHA,
       BENGALURU - 560 001.

2.     STATION HOUSE OFFICER,
       MARATHAHALLI POLICE STATION
       MARATHAHALLI,
       BANGALORE - 560 037

3.     SHWETA JAIN
       W/O GAURAV RAJ JAIN
                               2



     AGED ABOUT 38 YEARS
     MAHALKA WALE
     PARASNATH NAGAR GT ROAD
     KHATAULI, UTTAR PRADESH
     PIN - 251 201

4.   AMAYA G JAIN
     AGED ABOUT 2 YEARS
     A1 SREE UTOPIA APT.
     KADABISANHALLI,
     BANGALORE - 560 103
     REPRESENTED BY HER
     MOTHER SHWETA JAIN
                                                   ... RESPONDENTS

(BY SRI. FAYAZ SAB, ADVOCATE FOR R3, R4
    SRI. THEJESH.P., HCGP FOR R1, R2)


     THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE

CONSTITUTION OF INDIA, BY THE PETITIONER PRAYS THIS HON'BLE

COURT BE PLEASED TO A WRIT OF HABEAS CORPUS OR ANY OTHER

APPROPRIATE   WRIT   ORDER   OR   DIRECTION   BE   ISSUED   TO   THE

RESPONDENTS FOR PRODUCTION OF THE 4TH RESPONDENT AMAYA G.

JAIN BEFORE THIS HON'BLE COURT AND HAND OVER HER CUSTODY TO

THE PETITIONER AND ETC.


     THIS WPHC COMING ON FOR ADMISSION THIS DAY, THROUGH

VIDEO CONFERENCE B. VEERAPPA J., MADE THE FOLLOWING:
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                               ORDER

The present writ petition is filed in the form of Habeas Corpus

by the father of respondent No.4 seeking direction to the

respondents for production of respondent No.4-Amaya.G.Jain

before this Court and hand-over her custody to the petitioner in the

interest of justice.

I. FACTS OF THE CASE:

2. It is the case of the petitioner that the petitioner and

the third respondent's marriage was solemnized on 30.06.2009 and

respondent No.4-baby girl was born out of the wedlock. The said

child was born premature and was under treatment in various

Hospitals. It is further stated that respondent No.3 had taken away

the baby girl from the petitioner's custody on 05.10.2021 and since

then the petitioner is not allowed to talk with the baby girl and

respondent No.3 is not even showing her, despite the petitioner's

repeated request. It is further stated that respondent No.3 used to

frequently run away from her matrimonial home saying that she

was forcibly married to the petitioner and was filing false and

frivolous cases against the petitioner and his family members.

Therefore, the petitioner had left with no other option other than to

file divorce petition before the family court in M.C.No.5149/2016.

During the pendency of the trial, the petitioner and his family

members were eagerly trying to settle the issues with respondent

No.3 and as a result of the same, the divorce petition came to be

withdrawn and from there onwards, the petitioner and respondent

No.3 started living together in Bengaluru. But once again,

respondent No.3 has left her matrimonial home along with her

minor child, who is under treatment, putting child's life in danger.

Thus, it is stated that the petitioner is filing Restitution Conjugal

Rights Petition under Section 9 of the Hindu Marriage Act, 1955

against respondent No.3 before the family court. Therefore, the

petitioner has filed the present writ petition for the relief sought for.

3. Respondent No.3 being natural mother of respondent

No.4-minor child filed objections to the present writ petition and

specifically contended that the present writ petition in the form of

Habeas Corpus filed against her is not maintainable and the same is

liable to be dismissed. It is further contended that the matrimonial

case in M.C.No.5149/2016 filed seeking divorce came to be

withdrawn by the petitioner. Thereafter at the intervention of senior

members of both families, the petitioner and respondent No.3

were re-united and had led matrimonial life. They were blessed with

a female child i.e., respondent No.4. Respondent No.3 submits that

the said minor child is with her and the minor child is hale and

healthy. She is growing very well and getting regular treatment in

Kathouli, which is one hour journey to reach Delhi. It is further

contended that as per Annexure-R1, the medical prescription, the

child is in safe custody of respondent No.3-natural mother of the

minor child. This aspect of the matter is also well within the

knowledge of the petitioner and his family members and despite the

same, the petitioner willfully filed the present writ petition only to

harass respondent No.3. Therefore, sought for dismissal of the writ

petition.

II. ARGUMENTS OF THE LEARNED COUNSEL FOR THE PARTIES:

4. We have heard Sri. Anish Jose Antony, learned counsel

for the petitioner through virtual mode and Sri. Thejesh.P, learned

High Court Government Pleader for Respondent Nos.1 and 2,

Sri. Fayaz Sab, learned counsel for respondent Nos.3 and 4 through

physical mode.

5. Sri. Anish Jose Antony, learned counsel for the

petitioner reiterating the grounds urged in the present petition

contended that respondent No.3-wife of the petitioner has taken

away the baby girl from the custody of petitioner illegally and she is

not allowing him to talk with his daughter and not even showing her

to him despite repeated request. Thereby, the writ petition in the

form of Habeas Corpus is maintainable in view of the dictum of the

Hon'ble Supreme Court in the case of Tejaswini Gaud and Others

Vs. Shekhar Jagdish Prasad Tewari and Others reported in

(2019) 7 SCC 42. It is further contended that the father being a

natural guardian of a minor child has a preferential right to claim

custody of his son in view of the dictum of the Hon'ble Rajasthan

High Court in the case of Goverdhan Lal v. Gajendra Kumar,

AIR 2002 Raj 148.

6. Learned counsel would further contend that in view of

the provisions of the Juvenile Justice (Care & Protection) Act, 2015,

the best interest of the child is of paramount consideration and

should involve fulfillment of his/her basic rights and needs-socially,

physically and emotionally for overall development of the child.

Further, learned counsel for the petitioner-husband contended that

merely the statement made by the 3rd respondent-wife on oath that

the 4th respondent-child is in her safe custody since she is a natural

mother of Respondent No.4, cannot be believed and the petitioner

is not aware as to whether the child is alive or dead. Therefore, he

sought to allow the present writ petition.

7. Per contra, Sri. Fayaz Sab, learned counsel for

respondent Nos.3 and 4 reiterating the contentions urged in the

statement of objections, contended that there is no dispute

between the petitioner and respondent No.3 that they are husband

and wife and out of their wedlock, respondent No.4 was born. He

further contended that though the husband/petitioner filed

M.C.No.5149/2016 seeking divorce from respondent No.3,

subsequently the said petition came to be dismissed as withdrawn.

The minor child is residing with her natural mother-respondent No.3

and the present writ petition in the form of Habeas Corpus is not

maintainable. Learned counsel further contended that the petitioner

is misusing the provisions of Article 226 of the Constitution of India

by filing the present writ petition in the form of Habeas Corpus. If

at all the petitioner is really willing the custody of his daughter, he

could have approached the family court seeking custody of the

minor child under the provisions of the Guardians and Wards Act,

1890 or under the provisions of the Hindu Minority and

Guardianship Act, 1956. Instead of doing so, the petitioner is

misusing the provisions of Habeas Corpus and thereby

unnecessarily troubling the minor child and respondent No.3. The

minor child is hale and healthy and she is in safe custody of

respondent No.3, who is her natural mother. The petitioner knowing

fully well all these aspects, filed the present writ petition only to

harass his wife and minor child. Therefore, he sought to dismiss

the writ petition.

8. The learned HCGP appearing for respondent Nos.1 and

2, contended that in view of the relationship of the parties, the child

is with her mother-respondent No.3, writ petition in the form of

Habeas Corpus is not maintainable and sought to dismiss the writ

petition.

III. THE POINT FOR DETERMINATION:

9. In view of the above rival contentions urged by the

parties, the only point that would arise for our consideration is:

"Whether the petitioner can maintain the writ petition in the form of Habeas Corpus seeking direction to Respondent Nos.1 and 2 for production of Respondent No.4-minor child from the Respondent No.3 his wife, before this Court?"

10. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties and

objections filed by respondent Nos.3 and 4. Perused the material

on record carefully.

IV. CONSIDERATION:

11. It is undisputed fact that the petitioner and respondent

No.3 are husband and wife and their marriage was solemnized on

30.06.2009. It is also not in dispute that respondent No.4 was born

from their wedlock as per Annexure-B on 23.11.2019. As per the

pleadings of the writ petition at para-8, the minor child-respondent

No.4 is with respondent No.3 who is none other than her natural

mother. It is also not in dispute that the petition filed by the

petitioner seeking divorce from respondent No.3 in

M.C.No.5419/2016 before the family court came to be dismissed as

withdrawn. It is specifically contended by the respondent No.3 in

the objections that the petitioner and respondent No.3 were

re-united and thereafter respondent No.4 was born to them.

Respondent No.4 is hale and healthy and taking regular treatment

and is in safe custody of respondent No.3, who is her natural

mother. The petitioner knowing fully well the said fact, has filed

the present writ petition. Though learned counsel for the petitioner

relied upon the judgment of the Hon'ble Supreme Court in the case

of Tejaswini Gaud and Others Vs. Shekhar Jagdish Prasad

Tewari and Others reported in (2019) 7 SCC 42, it was the case,

where the question of maintainability of a habeas corpus petition

under Article 226 of the Constitution of India for custody of a minor

was examined and it was held that the petition would be

maintainable where detention by parents or others is found to be

illegal and without any authority of law and the extraordinary

remedy of a prerogative writ of Habeas Corpus can be availed in

exceptional cases where ordinary remedy provided by the law is

either unavailable or ineffective. Admittedly in the present case, it

is not in dispute that respondent No.4 is residing with respondent

No.3 and it is not the case of the petitioner that respondent No.3

illegally detained respondent No.4 without any authority of law. It is

the fact that the petitioner and respondent No.3 both are husband

and wife and their child is in safe custody of respondent No.3. If

any grievance against respondent No.3 with regard to the custody

rights as alleged in the present writ petition, in all fairness, the

petitioner could have filed petition seeking custody of the child

before the family court. Thereby, he is misusing the provisions of

Article 226 of the Constitution of India, by filing the writ petition in

the form of Habeas Corpus.

12. The judgment of the Hon'ble Supreme Court in the case

of Tejaswini Gaud (supra) relied upon by the learned counsel for

the petitioner, it was a case where the detention of a minor by a

person who is not entitled to his legal custody is treated as

equivalent to illegal detention for the purpose of granting writ,

directing custody of the minor child. Admittedly, the petitioner has

not produced any material documents to show that respondent

No.3 has detained respondent No.4 illegally in violation of any court

order, nor he has filed any petition seeking custody of respondent

No.4 for custody rights. In the absence of any material documents

produced, the present writ petition filed in the form of Habeas

Corpus is nothing but abusing the process of law and also with a

malafied intention to harass respondent No.3 and her daughter-

Respondent No.4, which is impermissible. Therefore, judgment in

the case of Tejaswini Gaud (supra) has no application to the facts

and circumstances of the present case.

13. One more judgment relied upon by the learned counsel

for the petitioner is Goverdhan Lal's case (supra), where it is

observed that the father being a natural guardian of a minor child

has a preferential right to claim custody of his son. If that is so, the

petitioner could approach the appropriate court for custody of his

child. There is no dispute with regard to the law laid down, but the

fact remains that the petitioner should have approached proper

Court without misusing the process of the Court by filing the writ

petition in the form of Habeas Corpus, which is nothing, but abusing

the process of the law and daring ride on the court, which is

impermissible.

14. Learned counsel for the petitioner relied upon the

judgment of the Hon'ble Supreme Court in the case of Nithya

Anand Raghavan -vs- State (NCT of Delhi) and another

reported in (2017) 8 SCC 454. It was a case wherein the High

Court inter alia directed the mother to produce her daughter Nethra

and to comply with the order dated 8.1.2016 passed by the High

Court of Justice, Family Division, Principal Registry, United Kingdom

(UK), within three weeks from the date of the impugned order

therein or in the alternative to hand over the custody of the

daughter to the father within three weeks from the date of the

order. The said order was violated by the mother. In those

circumstances, the Hon'ble Supreme Court, set aside the orders

passed by the High Court. Admittedly in the present case, there is

no such direction to the mother by any of the Courts, either foreign

Court or any Court in India directing her to hand over the child to

the petitioner, who is the father. In the absence of any orders

passed by any of the Courts, the custody of the minor daughter

with the mother, cannot be held to be unlawful. If the petitioner is

really aggrieved, he has to invoke the provisions of Guardians and

Wards Act, for the proper relief. In the present case, the petitioner

is misusing the powers of this Court by filing the present writ

petition under Article 226 of the Constitution of India seeking writ

of habeas corpus. Therefore, the judgment relied upon by the

learned counsel for the petitioner has no application to the facts

and circumstances of the present case.

15. The judgment in the case of Nithya Anand Raghavan

stated supra has also been considered by the Hon'ble Supreme

Court in the latest judgment in the case of Yashita Sahu -vs-

State of Rajasthan (AIR 2020 SC 577), wherein the Hon'ble

Supreme Court held that the parent who is denied custody of the

child is entitled to sufficient visitation rights for social, physical and

psychological contact of child with any of the parent.

16. It is well settled law that presenting a petition for

Habeas Corpus is for the person for whose release the petition is

filed, must be in "detention". He must be under detention by the

authorities or by any private individual. It is the "detention" legal

or illegal which gives the cause of action for maintaining the writ of

Habeas Corpus. If the averments in the writ petition read as a

whole do not disclose the detention, in other words, there is no

allegation of illegal detention, the writ petition is liable to be

rejected in limine. The principles of Order VII Rule 11 of CPC

equally apply to a writ of Habeas Corpus. However, in the case of

minor girls, or young women who are kidnapped by persons in the

business of trafficking in women for the purpose of forcing them to

prostitution, may be the parents would not be in a position to

specifically give the details of the persons who have detained them

or they may not be knowing the reason for missing of their wards.

In such cases, on that ground the relief cannot be denied. It would

be an exception to the aforesaid rule. The material on record clearly

depicts that in the course of investigation, it is found that

respondent No.4 is in lawful custody of her mother, natural

guardian-Respondent No.3.

17. In view of the above, the act of the petitioner is nothing

but an attempt to overreach the Court and is nothing, but an

attempt to mislead the police. It is our experience that this type of

frivolous writ petitions in the recent days is on the rise. Because it

is a Habeas Corpus writ petition and the personal liberty of a citizen

is involved, this Court being the Constitutional Court has to reach

out to the rescue of those innocent people. We are giving top

priority to those cases. We are putting pressure on the Police to

investigate and secure and release these persons. But we find from

our experience that in most of the cases, there is no cause much

less sufficient cause for the parties to approach this Court. Litigants

and members of the Bar appear to have not understood the

importance and seriousness of this extraordinary writ of Habeas

Corpus. It is high time that we have to send a clear message that

the Courts will not encourage such litigants and tolerate such abuse

of the judicial process.

18. In the present case, admittedly the petitioner and

respondent No.3 are husband and wife and the writ petition filed by

the petitioner seeking divorce from his wife came to be dismissed

as withdrawn. It is also not in dispute that out of their wedlock,

baby girl was born and the said minor child is naturally with the

custody of respondent No.3-Mother. As stated in the objections filed

by respondent Nos.3 and 4, knowing fully well that the minor child

is in safe custody of her mother, the petitioner filed the present writ

petition in the form of Habeas Corpus for the relief sought for

unnecessarily wasting public precious judicial time and

unnecessarily misusing police force, which is meant to protect the

people. Thereby, the petitioner instead of approaching proper and

appropriate court for custody of his minor child, has misused the

State machinery as well as approached this Court knowing fully well

that his daughter is safe, hale and healthy with his wife. It is

nothing but the abuse of the judicial process. Thereby, the

petitioner is not entitled for the relief sought in the petition and the

writ petition in form of Habeas Corpus is liable to be dismissed with

costs.

19. Sri Anish Jose Antony, learned counsel for the

petitioner-husband contended that merely the statement made by

the 3rd respondent - wife on oath that the 4th respondent - child is

in her safe custody since she is a natural mother of Respondent

No.4, cannot be believed and the petitioner is not aware as to

whether the child is alive or dead. The said contention cannot be

accepted because the petitioner has not filed any rejoinder to the

present writ petition. Moreover, the very writ petition filed for writ

of Habeas Corpus, is not maintainable as already stated by us.

20. Our view is fortified for the dictum of the Hon'ble

Supreme Court in the case of KISHORE SAMRITE vs. STATE OF

UTTAR PRADESH AND OTHERS reported in

MANU/SC/0892/2012 : (2013)2 SCC 398, Para-32, 32.1 to

32.8 held as under:

"32. The cases of abuse of 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 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:

32.1. 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 are entitled to any relief.

32.2. 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 then litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

32.3. The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

32.4. 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 overshadowed the old ethos of Irrigative values for small gains.

32.5. 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.

32.6. The court must ensure that its process is not abused and in order to prevent abuse of process of 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.

32.7. Whether a public interest is involved, 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.

32.8. The court, especially the Supreme Court, has to maintain the strictest vigilance over the abuse of process of court and ordinarily meddlesome bystanders should not be granted "visa". May societal pollutants create new problems of unredressed grievances and the court should endure to take cases where the justice of the list well justifies it.

21. The Hon'ble Supreme Court in the case of P.S.R.

Sadhanantham v. Arunachalam, reported in

MANU/SC/0083/1980 : (1980) 3 SCC 141 at Para-15 and 16

has held as under:

"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 amount 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 to 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 bonafide 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 processual 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."

22. It is well settled law that with the passage of time, it

has been realized 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 put forward false and

exaggerated claims and a litigant must approach the court with

clean hands. It is the bounden duty of the court to ensure that

dishonesty and any attempt to surpass the legal process must be

effectively curbed and the court must ensure that there is no

wrongful, unauthorized or unjust gain to anyone as a result of

abuse of process of court. One way to curb this tendency is to

impose realistic or punitive costs.

V. CONCLUSION:

23. For the reasons stated above, we answer the above

point in negative holding that the petitioner-father of the minor

child has not made out any ground to allow the writ petition and

has abused the judicial process. Thereby, writ petition is liable to be

dismissed imposing cost of Rs.50,000/- (Rupees Fifty thousand

only) on the petitioner payable to the Police Welfare Fund, within

one month from the date of receipt of the order.

VI. RESULT:

24. In view of the above, we pass the following:

ORDER

(i) The writ petition is dismissed as devoid of any merits.

(ii) The petitioner shall pay the cost of Rs.50,000/-

(Rupees Fifty thousand only) to the Police Welfare Fund, within one month from the date of receipt of copy of this order.

(iii) The Registrar Judicial is directed to send the copy of this order to the Jurisdictional Deputy Commissioner to recover the said amount from the petitioner as arrears of land revenue, in case, petitioner fail to deposit the same within the time stipulated.

Sd/-

JUDGE

Sd/-

JUDGE

SMJ