Piyush Prakashbhai Ahuja vs The State Of Madhya Pradesh
2022 Latest Caselaw 9668 MP

                           -1-


IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                       BEFORE
           HON'BLE SHRI JUSTICE VIVEK RUSIA
                            &
     HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
                 ON THE 14th OF JULY, 2022


           WRIT PETITION No. 14389 of 2022

     Between:-
     PIYUSH PRAKASHBHAI AHUJA S/O PRAKASH
     AHUJA, AGED ABOUT 33 YEARS, OCCUPATION:
     BUSINESS SADHU NAGAR, INDORE . (MADHYA
     PRADESH)
                                       .....PETITIONER
     (BY SHRI MANU MAHESHWARI, ADVOCATE)

     AND

     THE STATE OF MADHYA PRADESH THROUGH
1.   PRINCIPAL   SECRETARY   VALLABH  BHAWAN
     DISTRICT BHOPAL (MADHYA PRADESH)
     COMMISSIONER OF POLICE INDORE (MADHYA
2.
     PRADESH)
     STATION HOUSE OFFICER POLICE STATION JUNI
3.
     INDORE INDORE (MADHYA PRADESH)
     DEEPA   @   YUVIKA AHUJA      W/O    PIYUSH
     PRAKHASHBHAI AHUJA, AGED ABOUT 27 YEARS,
4.   OCCUPATION: HOUSEHOLD R/O O/204, THE OZONE
     CITY KUBERNAGAR ITI ROAD NARODA GALAXY
     (GUJARAT)
5.   NISHA BEN HIRANAND SACHDEV W/O HIRANAND
     SACHDEV , AGED ABOUT 50 YEARS, OCCUPATION:
     HOSUEWIFE R/O O/204, THE OZONE CITY
                                 -2-


       KUBERNAGAR        ITI    ROAD    NARODA      GALAXY
       (GUJARAT)
       DEEPAK SACHDEV S/O HIRANAND SACHDEV ,
       AGED ABOUT 20 YEARS, OCCUPATION: JOB R/O
6.
       O/204, THE OZONE CITY KUBERNAGAR ITI ROAD
       NARODA GALAXY (GUJARAT)
                                         .....RESPONDENTS
       (RESPONDENT / STATE BY SHRI BHASKAR AGRAWAL,
       GOVT. ADVOCATE)
        This petition coming on for hearing this day, JUSTICE
VIVEK RUSIA passed the following:
                               ORDER

The petitioner has filed the present petition seeking writ of habeas corpus by directing respondents No.4 to 6 to hand over the custody of minor child Prithviraj Ahuja to him.

02. According to the petitioner, he was married with respondent No.4 on 03.02.2018 under the Hindu Customs and Rituals. Respondent No.1 gave birth of above named child on 05.11.2018. Thereafter, she left the house of the petitioner and started living with her parents i.e. respondents No.5 & 6. The petitioner has filed an application under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal right. Respondent No.4 appeared before the Court, conciliation proceedings were taken up, a compromise was arrived at between them and she agreed to live with the petitioner. Accordingly, the proceedings were dropped. According to respondent No.4, she lived with the petitioner along with the child but somewhere around July, 2021, she went to Ahmedabad on a wrong pretext that

her parents are not well, thereafter, she refused to come back. The petitioner made a complaint to Police Commissioner, Deputy Inspector General of Police and Collector, Indore.

03. Respondent No.4 called the petitioner to Ahmedabad to discuss further in the matter and after some discussion, both have decided to file an application under Section 13-B of Hindu Marriage Act before the Family Court at Ahemdabad seeking divorce by way of mutual consent. The terms and conditions of the divorce were settled and filed before the Court. On 10.06.2022, mother of respondent No.4 filed an application that respondent No.4 has travelled to the foreign country for higher studies on 10.02.2022 by giving power of attorney to her. In such circumstances, the petitioner approached this Court seeking custody of his minor child who is at present with respondents No.5 & 6.

04. This Court directed the petitioner to serve respondents No.4 to 6 by way of Hamdust service. According to the petitioner, he has served all the three aforesaid respondents and filed an affidavit. Respondent No.5 has signed the acknowledgment on behalf of respondents No.4 & 6 also.

05. We have learned counsel for the parties at length and perused the record.

06. The question is whether this petition is maintainable before this Court or the petitioner is liable to approach the Ahemdabad High Court. The petitioner by way of this petition is virtually

seeking custody of his minor child under Section 9 of the Guardians and Wards Act, 1890. The respondents No.5 & 6 are residing within the jurisdiction of Ahmedabad High Court. According to the petitioner, the corpus is also residing with them.

07. Learned counsel for the petitioner has placed reliance upon judgments delivered by the Full Bench of Kerela High Court & Rajasthan High Court in the cases of Marggarate Maria Pulparampil Nee Feldman v/s Dr. Chacko Purparampil & Others reported in 1969 SCC OnLine Ker 86 and Umed Mal v/s Union of India & Others reported in 1998 SCC OnLine Raj 352 respectively.

08. It is not in dispute that this Court is having jurisdiction to issue writ of habeas corpus but the Ahmedabad High Court is also having jurisdiction. According to the petitioner, respondent No.4 / wife has travelled abroad and his minor son is with respondents No.5 & 6, therefore, instead of calling two senior citizens and one three years' child all the way from Ahmedabad to Indore to contest the case, it would be better to direct the petitioner to file a petition before Ahmedabad High Court.

09. Section 9 of the Guardians and Wards Act, 1985 provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor resides.

10. In view of the above, the present Writ Petition stands dismissed with a liberty to the petitioner to approach the

Ahmedabad High Court by filing a petition for custody of his minor child.

    (VIVEK RUSIA)                   (AMAR NATH (KESHARWANI))
       JUDGE                                JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.07.18 17:21:38 +05'30'