Rajasthan High Court
Vishal Saxena S/O Sh.Suresh ... vs The State Of Rajasthan on 1 April, 2022
Bench: Pankaj Bhandari, Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Habeas Corpus Petition No. 39/2022
Vishal Saxena S/o Sh. Suresh Saxena, Aged About 42 Years,
R/o- Bharosi Lal Ji Ka Makan, Bhagat Singh Colony, Kota,
Junction, Kota, Raj. (Father)
----Petitioner
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Department Of Home, Government Secretariat, Jaipur.
2. The Director General Of Police, Rajasthan, Jaipur.
3. The Additional Director General Of Police, Civil Rights And
Anti Human Trafficking, Rajasthan, Jaipur
4. The Superintendent Of Police, District- Kota.
5. The SHO, Police Station, Bheemganj Mandi, Kota.
6. Smt. Nisha Saxena W/o Shri Kuldeep Saxena, Aged About
62 Years, R/o House No. 354, Amrit Bhawan, Radha
Krishan Mandir Ke Pass, Dadwada, Kota Junction, Kota.
7. Shri Kuldeep Saxena S/o Late Shri Banke Bhihari, Aged
About 70 Years, R/o House No. 354, Amrit Bhawan,
Radha Krishan Mandir Ke Pass, Dadwada, Kota Junction,
Kota.
8. Shri Avkash Saxena S/o Shri Suresh Chand Saxena, Aged
About 29 Years, R/o House No. 69, Siddhi Vinayak Nagar,
Sogariya, P.s. Railway Colony, Kota, Raj.
----Respondents
For Petitioner(s) : Mr. Samarth Sharma
For Respondent(s) : Mr. Om Prakash Singh with Mr.
Gaurav Kumar Pal
Mr. Anshuman Saxena
Ms. Alka Bhatnagar, Addl. Govt. Adv.
With Mr. Laxmichand Verma, Police
Inspector, S.H.O., P.S.,
Bheemganjmandi, Kota City.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
(2 of 5) [HC-39/2022]
ORDER RESERVED ON :: 28/03/2022
ORDER PRONOUNCED ON :: 01/04/2022
1. The petitioner has preferred this Hebeas Corpus Petition
inter-alia praying for production of the corpus, who is daughter of
the petitioner.
2. Factual matrix of the case is that the marriage of the
petitioner was solemnized on 11.12.2008. Wife of the petitioner
delivered a baby girl on 30.9.2009, who is the corpus in this case.
Due to differences between petitioner and his wife, wife along with
her daughter started living separately from the petitioner.
However, the petitioner was paying maintenance to his wife and
minor daughter. Wife of the petitioner expired on 17.12.2021 on
account of heart ailment. The corpus continued to remain with her
maternal grandparents.
3. It is contended by the counsel for the petitioner that the
petitioner is the only natural guardian and is entitled to the
custody of the minor child. It is also contended that respondent
Nos.6 and 7 are neither natural guardians nor legal guardians of
the minor girl, therefore, petitioner's daughter is in illegal custody.
It is further contended that recently the petitioner came to know
that during the pendency of the divorce proceedings, his wife had
solemnized second marriage on 16.3.2021 with respondent No.8.
4. Counsel for the petitioner has placed reliance on Tejaswini
Gaud & Ors. Versus Shekhar Jagdish Prasad Tewari & Ors.: 2019
Cr.L.R. (SC) 705 wherein it was held that in child custody
matters, the writ of Habeas Corpus is maintainable where it is
proved that the detention of a minor child by a parent or others
(3 of 5) [HC-39/2022]
was illegal and without any authority of law. Reliance is also
placed on Smt. Chandra Kanta Versus Superintendent of Police &
Ors.: 2000 (3) WLC 667 wherein it was held that grand father
has no legal right to the custody of minor and mother who is
natural guardian has a right to the custody.
5. It is contended on behalf of respondent Nos.6 and 7 that the
child is aged twelve and half years. She is staying with her
maternal grandparents for last more than six years and her
custody cannot be said to be in illegal detention. It is contended
by the counsel for respondent No.8 that an application under the
Guardians and Wards Act with regard to declaration of
guardianship of the corpus is pending before the Family Court in
which the petitioner is a party. The petitioner instead of applying
before the Family Court has approached the High Court.
6. Counsel for the respondents has placed reliance on Sayed
Saleemuddin Versus Dr. Rukhsanam & Ors.: 2001 3 Supreme
497 wherein it was held that in an application seeking a writ of
hebeas corpus for custody of minor children, the principal
consideration for the Court is to ascertain whether the custody of
the children can be said to be unlawful or illegal and whether the
welfare of child requires that present custody should be changed
and child should be left in care and custody of someone else. The
paramount consideration should be welfare of the child. Reliance is
also placed on Kirtikumar Maheshankar Joshi Versus Pradipkumar
Karunashankar Joshi: 1992 0 Supreme (SC) 382 wherein the
children categorically stated that they did not wish to go with their
father, but rather wished to stay with their maternal uncle. The
(4 of 5) [HC-39/2022]
Court recognized that the father had a preferential right to
custody of his minor children, but nevertheless the Court keeping
in view the facts and circumstances of the case and the wishes of
the children ruled in favour of the maternal uncle. Reliance is also
placed on Nil Ratan Kundu & Anr. Versus Abhijit Kundu: (2008) 8
SCC 413 wherein the Court held that it would not be proper to
give custody to his father when the child unequivocally refused to
go with him or to stay with him.
6. We have considered the submissions.
7. Admittedly, there was a dispute between petitioner and his
wife and the corpus is staying with her maternal grandparents for
last more than six years. We have interacted with the corpus. The
corpus has specifically stated that she does not want to go with
the petitioner and want to stay with her maternal grandparents.
From our interaction with the corpus, we gathered that the corpus
though aged twelve and half years has enough maturity. The
corpus has been living with her maternal grandparents for more
than six years. She does not want to go with her father. The
preference of the minor, in view of her age, cannot be ignored.
Though the petitioner is the natural guardian of the minor, but
since the minor has been living with her maternal grandparents
for last more than six years, her custody cannot be said to be
illegal detention merely because mother of the corpus has expired.
8. In Sayed Saleemuddin (supra), the Apex Court held that the
paramount consideration should be the welfare of the child. In
Kirtikumar Maheshankar Joshi (supra), the custody of the child
was given to the maternal uncle even though father was a natural
(5 of 5) [HC-39/2022]
guardian. The judgment relied upon by the counsel for the
petitioner in Nil Ratan Kundu & Anr. (supra), merely deals with the
maintainability of a habeas corpus petition, but that would apply
only when the child is in illegal detention. However, in the present
case in hand, the corpus is with respondent Nos.6 and 7 for last
six years and has expressed her wish to stay with her maternal
grandparents.
9. It will not be out of place to mention that an application is
already pending before the Family Court under the Guardians and
Wards Act and the proper forum to decide the custody of the
minor is the Family Court where the proceedings under the
Guardians and Wards Act is pending. As on date, the corpus
cannot be said to be in illegal detention as she is with her
maternal grandparents for last more than six years and has clearly
expressed her wish to stay with her maternal grandparents. We do
not find any force in the Habeas Corpus Petition and the same is
accordingly dismissed. However, the petitioner would be free to
approach the competent Court with regard to custody of the
corpus, if so advised.
(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
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