Madhya Pradesh High Court
Preeti Kaushalay vs The Union Of India on 28 October, 2022
Author: Vivek Rusia
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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 28th OF OCTOBER, 2022
WRIT PETITION No. 2520 of 2022
BETWEEN:-
PREETI KAUSHALAY D/O SHRI SUBHASH KAUSHALYA, AGED
ABOUT 32 YEARS, OCCUPATION: NOTHING, R/O 188 KOUSHALY
TYRE IN FRONT OF GOVT. HOSIPTAL (MADHYA PRADESH)
.....PETITIONER
(SHRI DURGESH SHARMA, LEARNED COUNSEL FOR THE
PETITIONER) .
AND
THE UNION OF INDIA THROUGH MINISTRY OF EXTERNAL
1. AFFAIRS REPRESENTED BY ITS PRINCIPAL SECRETARY SOUTH
BLOCK, NEW DELHI-110 001 (DELHI)
AMBASSADOR INDIAN EMBASSY HAGUE NETHERLANDS
2. NETHERLANDS, BUITENRUSTWEG 2, 2517 KD THE HAGUE
(NETHERLANDS)
SUPERINTENDENT OF POLICE KHARGONE, DISTRICT
3.
KHARGONE (MADHYA PRADESH)
OFFICER IN CHARGE OF POLICE STATION MAHESHWAR DIST
4.
KHARGONE (MADHYA PRADESH)
NEERAJ MANDLOI S/O LATE SHRI ONKAR LAL MANDLOI, AGED
ABOUT 35 YEARS, OCCUPATION: SERVICED, PERMANENT
ADDRESS- OM SHRI KRISHNA CHHAYA, TANGAL COLONY, IN
5. FRONT OF GANDHI KOTHI, SHARDA HOSPITAL KE PASS,
SANAWAD ROAD KHARGONE CURRENT R/O OOSTINGLE 5, 2612,
HB DELFT, NETHERLAD, OFFICE DELFT UNIVERSITY OF
TECHNOLOGY MEKELWEG, 5,2628, CDS DELFT NETHERLAND (
.....RESPONDENTS
(SHRI HIMANSHU JOSHI, STANDING COUNSEL FOR THE UNION OF
INDIA.)
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This petition coming on for orders this day, the court passed the
following: ORDER
The petitioner has filed the present Writ Petition seeking writ in
the nature of habeas corpus for securing the custody of seven months old
girl child who is at present under the custody of her father i.e. respondent
No.5 who is residing in Netherland.
Facts
of the case in short are as under:
[2] The marriage of the petitioner was solemnized with the
respondent No.5 under Hindu rituals and customs on 08.12.2016 at
Maheshwar. After the marriage, the petitioner went to the house of
in-laws at Khargone. According to the petitioner, after two days of
the marriage, she was subjected to cruelty for demand of dowry of
Rs. 20,000,00/- (Rupees Twenty Lacs). Thereafter, she shifted at the
work place of respondent No.5 at Paris (France). She came back to
Khargone and thereafter the respondent No.5 shifted Abu Dhabi
(Dubai) and after two and half years they were shifted to
Netherland. She became pregnant at Netherland and on 06.05.2021
she gave birth a daughter (Jenika). She was subjected harassment
and cruelty by the respondent No.5 for which the Netherland police
has directed to respondent No.5 to remain away from the petitioner
and her child. Since, the petitioner was unable to survive without
financial support so she left the Netherland and came back to India.
According to the petitioner under local Rules and Laws, she was
not permitted to travel with child to India without the consent of the
respondent No.5. Since it was impossible to her to reside in
Netherland without any source of income, therefore, she had no
option but to return India without her child on 11.11.2021. Since
than infant child is in the custody of her father i.e. respondent No.5.
The petitioner has got registered the case under
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Section 498-A, 506 of IPC and Section 3 & 4 of Dowry Act against
the respondent No.5 and his family members at Police Station
Maheshwar on 03.01.2022. Now the petitioner has filed the present
petition seeking writ of habeas corpus in order to secure the
custody of the minor child.
[3] Notices were issued by this Court, has not been served to the
respondent No.5 through Embassy.
''The core issue which requires consideration as to whether
this Court can issue a writ of habeas corpus against the
person who is residing outside the territory of India.''
Article 226 of the Constitution of India is reproduced below:
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall
have powers, throughout the territories in relation to which it
exercise jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibitions, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or
writs to any Government, authority or person may also be exercised
by any High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises
for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not
within those territories
(3) Where any party against whom an interim order, whether by
way of injunction or stay or in any other manner, is made on, or in
any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks
from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period, before
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the expiry of the next day afterwards on which the High Court is
open; and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the expiry
of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be
in derogation of the power conferred on the Supreme court by
clause ( 2 ) of Article 32
It is clear from the aforesaid, the High Court shall have the
power throughout the territories in relation to which it exercises
jurisdiction to issue to any person or authority including any
government within whose territories directions, order or writs for
the enforcement of any of the rights conferred by Part III and for
any other purpose. Therefore, the high Court can issue a writ under
Article 226 of the Constitution of India to any person within its
territory, thus, this writ petition is not maintainable and liable to be
dismissed on this ground alone. Even otherwise admittedly, the
respondent No.5 is biological father of corpus, therefore, the
custody cannot be said to be illegal for issuance of writ in the nature
of habeas corpus.
[4] Shri Joshi standing counsel for the Union of India has placed
reliance on the judgment passed by the Division Bench of Kerala
High Court at Ernakulam in case of Adarsh Kumar Vs. State of
Kerala 2017 SCC Online Ker 8505 in which the similar facts and
circumstance the Division Bench of Kerala High has declined to
issue writ of habeas corpus. The relevant paras are reproduced
below:
''2. Respondents 5 and 6 are residing outside the jurisdiction of this
Court. Even otherwise, the first petitioner submits that he has
separated with his wife and the detenue was with the mother and
the mother is residing with respondents 5 and 6. That apart, a
Guardian Original Petition had been filed by the petitioners before
the Family Court, which has been transferred to Manikkery Court
in Kodag District as per directions issued by the Supreme Court.
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3. In such circumstances, we do not think that the presence of the
detenue with the mother amounts to any illegal detention. Even
otherwise, all of them are outside the territorial jurisdiction of this
Court and therefore a writ of habeas corpus cannot be issued in the
matter.
4. The writ petition is therefore dismissed.''
[5] At this stage, counsel for the petitioner submits that he may
be permitted to file appropriate application for impleading the
parents of the respondent No.5 who are residing at Khargone. They
are not necessary party in this petition as corpus is not their custody.
Merely they are parents of the respondent No.5, they cannot be
dragged into litigation. The petitioner may avail the remedy
provided under Law.
In view of the above, writ petition is hereby dismissed.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI)
JUDGE JUDGE
praveen
Digitally signed by PRAVEEN
NAYAK
Date: 2022.10.31 18:12:48 +05'30'
