Madhya Pradesh High Court
Smt. Manju Chaurasiya @ Jahanvi vs The State Of Madhya Pradesh on 17 August, 2021
Author: Sheel Nagu
1 W.A.No.437/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
JUSTICE SHEEL NAGU
&
JUSTICE ANAND PATHAK
WRIT APPEAL NO.437/2020
Smt. Manju Chaurasiya alias Jahanvi
Versus
State of Madhya Pradesh & Ors.
==================================================
Shri Vivek Jain, learned counsel for the appellant.
Shri Ankur Modi, learned Additional Advocate General for the
respondents/State.
Shri Alok Katare, learned counsel for respondents No.5to7.
==================================================
JUDGMENT
{Delivered on 17th day of August, 2021}
Per Justice Anand Pathak, J.:
1. The present appeal under Section 2(i) of Madhya Pradesh
Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal), Adhiniyam,
2005 arising out of the order dated 27-11-2019 passed in Writ
Petition No.24909/2019 by learned Writ Court whereby the
petition preferred by appellant as petitioner has been dismissed
as not maintainable.
2. Precisely stated facts of the case are that a writ petition was
filed by the appellant (hereinafter referred as petitioner) in the
nature of writ of habeas corpus with the allegations that
marriage was solemnized between petitioner and respondent
No.5 and out of the wedlock master Anay (corpus herein) born
on 13-03-2018. Due to domestic dispute between the couple, it
appears that petitioner left her matrimonial home and came to
her parents home at Vidisha. When respondents No.5 to 7 did
not come to take her back in family fold then in May, 2019 she
was taken to Rishikesh (Uttarakhand) by her parents but there
behaviour of private respondents was of harassment and
embarrassment to her. They did not allow her to meet her son
and to breastfeed her son. Her son was being kept with her
mother-in-law.
3. It further appears from the pleadings that an attempt was being
made over the life of petitioner, forcing her to flee from
Rishikesh in the night of 27-08-2019 and somehow reached at
maternal home at Ganjbasoda (Vidisha).
4. As per the allegations, newly born son of petitioner needs
motherly care and breastfeeding and when all attempts to
reunite with her son failed, she filed an application before SDM,
Ganjbasoda (respondent No.3 herein) under Section 97 of
Cr.P.C. and also reported the entire incident to the police
authorities vide complaint filed as Annexure P/4 but to no avail.
Therefore, she preferred the petition under Article 226 of
Constitution of India in the nature of habeas corpus because
police authorities are avoiding to produce the corpus master
Anay before SDM, Ganjbasoda and on every hearing time
sought by them to execute the warrant. On the other hand no
affirmative steps have been taken by the police over the FIR
against the private respondents. They have already been
enlarged on anticipatory bail. In the said bail application, they
have given specific undertaking to produce the child before the
SDM, Ganjbasoda on different dates of proceedings but they
did not produce the child even before the SDM.
5. Writ petition was heard by learned Writ Court and after
considering the rival submissions, came to conclusion being not
maintainable and dismissed the writ petition. Therefore,
petitioner is before this Court by way of writ appeal.
6. It is the submission of learned counsel for the
petitioner/appellant that corpus is an infant (now three years
old) and he needs mother to take care of his overall well being.
It is in the interest of child that mother should be given access
to look after him for his overall development. Private
respondents are causing hindrance in the said proceedings by
not producing corpus as per the undertaking given by them
before this Court at the time of hearing of anticipatory bail
application and they illegally detained the child from possession
of mother (present appellant), being natural guardian.
7. Learned counsel for respondents No.1to4/State opposed the
prayer and submitted that respondents are always ready to abide
by the order passed by this Court or the Court of SDM,
Ganjbasoda. They expressed their cooperation in the
proceedings as per the direction of this Court.
8. Learned counsel for respondents No.5to7 opposed the prayer
on the ground that petition by way of habeas corpus was not
maintainable and learned Writ Court rightly passed the
impugned order. However, counsel for the respondents did not
dispute the fact that as per the undertaking/spirit of the order
passed in anticipatory bail application of private respondents,
they were required to produce the child before the SDM Court
so that petitioner could have met her son (master Anay).
9. Heard learned counsel for the parties and perused the record
appended to it.
10. This is a case where mother is seeking custody of her son from
the custody of her husband and in-laws. Since father is also
natural guardian of the corpus, therefore, prima facie it cannot
be said that corpus is in illegal detention of his father.
11. It is an admitted position that proceedings are pending before
SDM, Ganjbasoda (respondent No.3 herein) under Section 97
of Cr.P.C. and as per the said provisions, SDM can search any
person wrongly confined and it is also an admitted position that
as per undertaking given by the private respondents, they had to
appear along with the corpus before SDM Court so that
petitioner could have met her son. Since appellant is mother of
corpus and corpus is only 3 years old boy, therefore, in the
interest of justice, visitation right deserves to be given to the
appellant and therefore, the order of learned Writ Court
deserves modification in following manner:
i- Order dated 27-11-2019 passed by learned Writ Court is
hereby modified.
ii- Appellant shall have visitation right that she can visit
every alternate Sunday to meet her son Anay from
morning 10 am to 3 pm. It would be the duty of the
private respondents No.5 to 7 that they shall allow the
appellant with all dignity and respect to meet her son
Anay during that period either at their home at Rishikesh
or at any suitable public place like Garden, Temple or any
Restaurant/Play Zone and during that period, no
disturbance shall be caused by private respondents No.5
to7 in the meeting of appellant with her son Anay.
iii- Respondents No.1to4 Government functionaries, shall
ensure that suitable consequential actions are ensured
over the FIR registered at the instance of appellant as
well as ensure culmination of proceedings under Section
97 of Cr.P.C. if pending before SDM Court, Ganjbasoda.
iv- It is made clear that all these observations have been
made in the interest of justice so that mother can meet her
son. However, appellant shall always be at liberty to
proceed in accordance with law as per remedies available
to her for custody of the child.
12. With the aforesaid directions, order impugned stands modified
and appeal stands allowed and disposed of in above terms.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Anil* 17/08/2021 17/08/2021
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURASIY st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b6802d068b
51dae27e84c266b09d283f0799e67cdc7d
A
f50f, cn=ANIL KUMAR CHAURASIYA
Date: 2021.08.17 13:51:35 -07'00'
