Roop Resham Waskale vs The State Of Madhya Pradesh
2021 Latest Caselaw 2020 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                      W.P.No.7585/2021
         Roop Resham Waskale Vs. State of M.P. and others
                             -1-

Indore, dated 24/5/2021

      Heard through video conferencing.

      Shri Kuldeep Pathak, learned counsel for the petitioner.

      Shri Ram Shashtri, learned counsel for the respondent State.

The petitioner has filed the present petition seeking writ in nature

of habeas corpus for the custody of respondent no.5 (son) from

respondent no.4 (husband). The petitioner and respondent no.4 are

husband and wife by virtue of their marriage solemnized on 13.5.2013.

After the marriage she has delivered two children, out of which

respondent no. 5 one is aged about four years six months , and the

second child is aged about eight months. It appears that there are some

matrimonial disputes cropped up between the petitioner and respondent

no.4 and they approached the civil court in which with the help of

Mediator (III Additional District Judge Barwani), a compromise was

arrived between them. A written compromise was submitted before the

Court and on the basis of the said compromise, the proceedings have

been closed by order dated 20.10.2020 by the III Additional District

Judge, District Barwani.

By way of compromise, both the parties have agreed that they

would not initiate any proceedings against each other. So far as the

children are concern, they are free to live as per their wish either with

mother or father or as per the decision of the Court. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W.P.No.7585/2021 Roop Resham Waskale Vs. State of M.P. and others

The petitioner approached the Sub Divisional Magistrate by way

of application filed under Section 97 of the Cr.P.C on 7.1.2021 alleging

that the respondent no.4 came to meet respondent no.5 on 31/12/2020

and took away with him without her consent, therefore, a search warrant

be issued. The Magistrate issued a search warrant and respondent nos. 4

and 5 were produced by the police before the Court. Vide order dated

4/2/2021, the Sub Divisional Magistrate, has dismissed the application

on the ground that the respondent no.5 is willing to live with his father

and relegated parties to approach the Competent Court for the purpose

of custody. Hence, the present petition before this Court.

Learned counsel for the petitioner submits that the mother being a

natural guardian is entitled to retain the custody of respondent no.5

because he is less than 5 years. In support of his contention he is relying

upon the judgment passed by the Division Bench in the case of Roshini

Choubey Vs. Subodh Gautam and others in W.P.No.2991/2019

decided on 5.3.2019.

It is not in dispute that the mother and father both are natural

guardians and the children in either of the custody cannot be termed in

illegal custody. However, in the present matter the respondent no.4 and

the petitioner had entered into an agreement that they would give

respect to the choice of the son to choose to whom he wants to reside

with otherwise as per the Court order. Under the Guardian and Wards HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

W.P.No.7585/2021 Roop Resham Waskale Vs. State of M.P. and others

Act, the Family Court is the Competent Court to deccide about the legal

custody of the Respondent no.5 taking into consideration of his future

and betterment. The petitioner and the respondent no.4 are in

Government service and holding Class II post; hence, prima facie it

cannot be said that the custody of child with them jointly or separately

would not be in the interest the child.

In view of the above though the WP the nature of Habeas Corpus

is maintainable but there is no urgency in the matter as the Respondent

no. 5 is in the custody of his father as per his choice. Both the petitioner

and respondent no.4 are matured and are responsible Government

officers, either of them may approach, the Family Court for adjudication

of the issue of custody of Respondent no.5 after resumption of courts

proceedings .

It is made clear that any observation made by this court herein

above shall not come in the way of the Family court in deciding the

application filed by the parties for adjudication.

In view of aforesaid liberty, the petition is disposed of.

(VIVEK RUSIA) REENA PARTHO JUDGE das SARKAR Digitally signed by REENA PARTHO SARKAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=14e70a287a42438a98dcd4449c9a456209 ff4272bed8d6bac1452f3fb432e6d0, serialNumber=58c860afe3bd7b9233b3b2d74632a 61befdc37f85ce50264bcf843011f77654d, cn=REENA PARTHO SARKAR Date: 2021.05.25 14:36:55 +05'30'