Madhya Pradesh High Court
Surendra Arse vs The State Of Madhya Pradesh on 16 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 16th OF APRIL, 2025
WRIT PETITION No. 13518 of 2025
SURENDRA ARSE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ahadulla Usmani - Advocate for the petitioner.
Shri Darshan Soni - Government Advocate for the respondents/State.
ORDER
Per: Justice Sanjeev Sachdeva
By this petition, petitioner seeks habeas corpus and transfer of custody
of his minor son Shubhyank Arse, age 3 years who is in the custody of
respondent No.7, the maternal grandmother.
2. The brief facts of the present petition are that petitioner was
working in Railways and married the mother of corpus on 11.12.2020. On
13.4.2024, the mother of corpus was found hanging under suspicious
circumstances at the house of in-laws. An F.I.R. was registered under
Section 498-A, 304-B, 34 of IPC and Section 3 and 4 of Dowry Prohibition
Act, 1961 against the petitioner and his mother. Both the petitioner and his
mother were arrested on 27.04.2024 and consequently, the custody of the
child was handed over to the maternal grandmother for his care and
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upbringing. Since 27.04.2024, the maternal grand mother is taking care of
the child.
3. Subject petition has been filed by the petitioner claiming that
custody of the child with respondent No.7 is illegal.
4. Learned counsel for the petitioner relies on the judgment of the
Supreme Court in Gautam Kumar Das vs. NCT of Delhi, (2024) 10 SCC 588
to contend that where custody is illegal, the High Court should not direct the
parties to take remedy under the Guardians and Wards Act but can grant
habeas corpus and hand over custody to the natural parents of the child.
5. We are unable to accept the contention of learned counsel for the
petitioner for the reason that in Gautam Kumar Das (supra), the mother of
child has expired on account of Covid 19 infection and consequently the
custody of the child was given to the sister-in-law who was taking care of the
child. The Supreme Court in Gautam Kumar Das (supra) found that there is
no circumstances which affected the fitness of the father to take care of the
child and the Court found that on account of unfortunate circumstances, by
the death of mother, the temporary custody of the child was given to the
sister-in-law and said could not be a ground to deny custody of minor child
to the father who is the natural guardian.
6. The Supreme Court in Gautam Kumar Das (supra) has also
referred to judgment of Nirmala vs. Kulwant Singh (2024) 10 SCC 595 to
hold that no hard and fast could be laid down in so far as maintainability of
habeas corpus petition in matter of custody of minor child is concerned and
has to whether writ court should exercise it jurisdiction under Article 226 of
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the Constitution of India for not to depend on the facts and circumstances of
each case.
7. The facts of the present case are completely different from the
facts in Gautam Kumar Das (supra), however, are similar to the facts of the
case in Nirmala (supra).
8. In Nirmala (supra), the Supreme Court was considering the case
where F.I.R. under Section 304-B of IPC was registered against the father
and the father has already handed over the custody of minor child to the
grand mother. The Supreme Court in Nirmala (supra) has said that habeas
corpus is a prerogative writ which is an extra ordinary remedy and recourse
to such a remedy should not be permitted unless the ordinary remedy
provided by the law is either not available or is ineffective. In child custody
matters, the power of the High Court in granting the writ is qualified only in
cases where the detention of a minor by a person who is not entitled to his
legal custody. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and Wards Act as
the case may be. The Supreme Court has further held that exercise of powers
by a writ court is summary in nature and what is important is the welfare of
the child and where the court is of the view that a detailed enquiry is
required, the court may decline to exercise the extraordinary jurisdiction and
direct the parties to approach the civil court.
9. In the present case, an F.I.R. under Section 304-B and 498-A of
IPC has been registered against the petitioner and petitioner was arrested
though has been subsequently enlarged on bail, however the trial is yet to
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commence.
10. Under these circumstances, we are of the considered view that a
detailed inquiry to the welfare of the child has to be conducted and same can
be conducted by the competent court under the Hindu Minority and
Guardianship Act or the Guardians and Wards Act as the case may be.
11. In these circumstances, we are not inclined to exercise the extra
ordinary jurisdiction under Article 226 of the Constitution of India.
Consequently, the petition is dismissed.
12. It is clarified that this Court has neither considered nor decided
the case of the petitioner with regard to the welfare of the minor child. Said
question is therefore left open to be considered by a competent court, if so
raised before it.
(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE
irfan
