Madhya Pradesh High Court
Rahul Malviya vs The State Of Madhya Pradesh on 27 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 27 th OF MAY, 2024
WRIT PETITION No. 12004 of 2024
BETWEEN:-
RAHUL MALVIYA S/O SHREERAM MALVIYA, AGED
ABOUT 31 YEARS, OCCUPATION: BUSINESS VYAS
COLONY, SHIVNI MALWA, DISTRICT HOSHANGABAD
(MADHYA PRADESH)
.....PETITIONER
( SHRI VIRENDRA SHARMA - ADVOCATE FOR THE PETITIONER
THROUGH V.C.)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
NANAKHEDA, UJJAIN DISTRICT UJJAIN
(MADHYA PRADESH)
2. RADHAKRISHNA SHARMA S/O LATE DWARIKA
PRASAD SHARMA, AGED ABOUT 58 YEARS, L-148,
MAHASHAKTI NAGAR, UJJAIN DIST. UJJAIN
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH SUPERINTENDENT OF
POLICE UJJAIN DIST. UJJAIN (MADHYA
PRADESH)
.....RESPONDENTS
( SHRI G S CHOUHAN - DY GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 28-05-2024
18:53:08
2
ORDER
Heard on the question of admission.
The present petition under Article 226 of the Constitution of India has
been filed seeking the following reliefs:
"It is therefore most humbly prayed that this Court may
kindly be pleased to :
a. Direct the respondent to produce the corpus before the
Court and the custody of child be handed over to the petitioner.
b. Any other appropriate order this Court deems fit may
kindly be pleased to pass in favour of the petitioner according to
the facts and circumstances of this case.
c. To allow the present writ petition & respondent may be
directed to produce the corpus who is a minor."
2. Brief facts of the case are that the petitioner was married with Megha
on 08.02.2019. Out of the wedlock, child namely Mukund was born. The wife
of the petitioner went to Ujjain during Rakhi festival and had committed suicide
there. An FIR bearing Crime No. 598/2021 has been registered against the
petitioner. This writ petition has been filed seeking a writ of habeas corpus on
the ground that the corpus namely - Mukund aged about 4 years is in illegal
detention of the respondent no. 2 who is his Maternal Grand Father. The
respondent no. 2 has no right to keep the child since the petitioner being father
is the natural guardian of the corpus. Therefore, the corpus be produced in the
Court and handed over to the petitioner.
3. Learned counsel for the petitioner in support of his contentions relied
upon the judgment of this Court passed in the case of Roshni Choubey Vs.
Subodh Gautam reported in 2019(3) MPLJ 264 to contend that in an
identical situation, the Court had directed to handover the custody of child to
the parent i.e. the mother therein. In the present case, the petitioner being father
is also eligible to have the custody of child.
4. Per contra, learned counsel for the State opposed the prayer and
submitted that the present petition seeking a writ in the nature of habeas
corpus is not maintainable in view of the fact that the petitioner has efficacious
remedy of filing an application u/S 6 of the Hindu Minority and Guardianship
Act, 1956 seeking custody of child. Being Maternal Grand Father of the child, it
cannot be said that the child is in illegal custody. It was the mother of corpus
who had taken him alongwith her to the house of respondent no.2 after
separation from the petitioner and thereafter, the child continued to reside with
respondent no. 2. Under such circumstances, the writ petition is not
maintainable.
5. Heard, learned counsel for the parties and perused the record.
6. The judgment passed in the case of Roshni Choubey (supra) is not
applicable to the circumstances of the present case, in as much as there is no
allegation on the respondent no. 2 that he took the child forcibly from the
custody of the petitioner. As already stated, the custody of the child is with the
respondent no.2.
7. Since there is no ground with regard to illegal detention having been
raised in the present writ petition and the fact that the custody of the child -
Mukund is with the respondent no.2 who is his Maternal Grand Father, this
present petition seeking a writ of habeas corpus is not maintainable. However,
petitioner being father of the child is free to avail the efficacious alternative
remedy available to him under the Hindu Minority and Guardianship Act 1956,
if so advised.
8. With the aforesaid, liberty petition stands dismissed.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
