Bharat Kumar vs State Of Rajasthan ...
2023 Latest Caselaw 8578 Raj

[2023:RJ-JD:35182-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Habeas Corpus Petition No. 317/2023

Bharat Kumar S/o Shri Bhikha Bhai, Aged About 38 Years, R/o 87/3, Shriji Row, House Society, Opposite Surya Ami Flat, Ranip, Ahmedabad, Gujarat. At Present Residing At Unit 4, 189, Hawkesbury, Rd Westmead, Nsw, Through His Power Of Attorney Shri Pravin Kumar S/o Shri Bhikha Bhai, Aged About 36 Years, R/o 87/3, Shriji Row - House Society, Opposite Surya Ami Flat, Ranip, Ahmedabad, Gujarat.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Home Department, Government Of Rajasthan, Secretariat, Jaipur.

2. The Office Of Commissioner Of Police, 2C8 Ccf, Old Dak Bungalow Building, New Power House, Rd. North Western Railway Colony, Jodhpur, Rajasthan - 342003.

3. The Superintendent Of Police, Jodhpur (Raj.).

4. Ms. Priyanka Dabi D/o Shri Ruparam Parihar, R/o Plot No. 10, Lakshmi Vihar, Basni First Phase, Jodhpur.

                                                                        ----Respondents


For Petitioner(s)                :    Mr. Keshav Pareek
                                      Mr. Pankaj Mehta
                                      Ms. Sweta Soni
For Respondent(s)                :    Mr. M.A. Siddiqui, AAG with Mr. A.R.
                                      Malkani
                                      Mr. Salman Agha
                                      Ms. Dipti Gora, Sub-Inspector, Women
                                      Police Station (West), Jodhpur


                HON'BLE MR. JUSTICE VIJAY BISHNOI

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order

16/10/2023

This Habeas Corpus Petition under Article 226 of the

Constitution of India is filed by the petitioner seeking following

reliefs:-

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"i. Issue a Habeas Corpus for production of the minor son namely Master Vihaan;

ii. Pass appropriate directions granting proper and continuous access of the son Master Vihan to the petitioner, and his safe passage to Australia; iii. Pass any such other/further orders or directions as this Hon'ble Court may deem fit in the interest of justice."

Brief facts of the case are that the petitioner and the

respondent No.4 got married on 25.02.2012 and started residing

in Australia and from their wedlock, a male child was born on

16.02.2016. It appears that on account of some dispute between

the petitioner and the respondent No.4, the respondent No.4 left

Australia and is residing with her parents in Jodhpur since

25.07.2018. While leaving Australia, she took the minor child with

her and since then, the minor is residing with her mother.

In between, an FIR was registered at the instance of the

respondent No.4 and after arriving at a settlement, a mutual

divorce petition under Section 13(B) of the Hindu Marriage Act

was filed on behalf of the petitioner and the respondent No.4,

wherein the Family Court No.1, Jodhpur granted a decree of

divorce vide judgment 17.02.2020.

It is noticed that in the said judgment and decree dated

17.02.2020, it is specifically mentioned that custody of the minor

child shall remain with the respondent No.4. After issuance of

decree of divorce, the criminal case filed against the petitioner at

the instance of the respondent No.4, was also closed and a

negative final report was filed by the Police in the matter, which

was duly accepted by the concerned criminal court.

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The petitioner, thereafter, filed an application before the

Family Court No.1, Jodhpur with a prayer for reviewing the

judgment and decree dated 17.02.2020 awarded by it. The said

review application came to be dismissed on 23.09.2021 and

thereafter the petitioner preferred DB Civil Misc. Appeal

No.1047/2021 before this Court challenging the judgment and

decree dated 17.02.2020. In the said misc. appeal, this Court has

passed the order for visitation through video call in favour of the

petitioner from time to time. Ultimately, the said misc. appeal

came to be disposed of by this Court by following judgment dated

12.07.2023 :-

"The only grievance which has been highlighted by the learned counsel for the appellant is the mentioning with regard to the custody of the minor child Vihan in para 5 of the impugned order dated 17.02.2020. It has been asserted that the custody of the child may be left open to be decided by the Court where the proceedings are pending i.e. Family Court No.2, Jodhpur.

Learned counsel for the respondent states that the respondent has no objection to the prayer as has been made by learned counsel for the appellant.

In light of the above, any observation which has been made by the Family Court No.1, Jodhpur in the order dated 17.02.2020 with regard to the custody of the minor child Vihan shall have no bearing on the litigation which is pending between the parties.

The present appeal stands disposed of."

From perusal of the above quoted judgment, it appears that

the petitioner has already approached the Family Court No.2,

Jodhpur seeking custody of the minor child and the same is

pending consideration. It is also to be noticed that in the said

proceedings, the Family Court No.2, Jodhpur has passed an order

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dated 20.09.2022, wherein visitation rights have been given to the

petitioner.

Aggrieved with the order dated 20.09.2022, the petitioner

has preferred SB Civil Writ Petition No.16655/2022 before this

Court, wherein notices have been issued to the respondent No.4

and the same is pending.

After passing of the order dated 12.07.2023 in DB Civil Misc.

Appeal No.1047/2021, the petitioner has preferred the instant

Habeas corpus Petition alleging therein that his minor son is in

illegal detention of the respondent No.4.

We have questioned about maintainability of this Habeas

Corpus Petition in view of the fact that the custody proceedings

initiated at the instance of the petitioner are pending consideration

before the Family Court No.2, Jodhpur.

Learned counsel for the petitioner while placing reliance on

the decision of the Hon'ble Supreme Court rendered in Yashita

Sahu Vs. State of Rajasthan referred in (2020) 3 SCC 67 has

argued that writ of habeas corpus is maintainable in the matter of

custody of a minor child.

Learned counsel appearing for the respondent No.4 has

vehemently opposed this Habeas Corpus Petition and argued that

this writ of habeas corpus is not maintainable in view of the fact

that the custody proceedings initiated at the instance of the

petitioner are pending consideration before the Family Court No.2,

Jodhpur.

Learned counsel has submitted that in the custody

proceedings initiated at the instance of the petitioner, the Family

Court No.2, Jodhpur has already passed an order dated

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20.09.2022, wherein visitation rights have been given to the

petitioner and pursuant to that, he met with his minor son twice.

Learned counsel has submitted that when the petitioner has

already challenged the order dated 20.09.2022 passed by the

Family Court No.2, Jodhpur by way of filing writ petition, the

instant Habeas Corpus Petition filed by the petitioner is nothing

but an abuse of the process of the Court.

Learned counsel has submitted that the facts of Yashita

Sahu's case (supra) are quite distinguishable and looking to the

facts and circumstances of the present case, this Habeas Corpus

Petition is not at all maintainable. Learned counsel has placed

reliance on the decision rendered by the Hon'ble Supreme Court in

Jose Antonio Zalba Diez Del Corral Alias Jose Vs. State of

West Bengal & Ors. reported in 2021 SCC Online SC 3434 -

Writ Petition(s) (Criminal) No(s).318/2020.

Learned AAG has submitted that in the facts and

circumstances of the case, particularly when the custody

proceedings are pending consideration before the competent

court, this Habeas Corpus Petition is not maintainable.

Heard learned counsel for the parties and perused the

material available on record.

It is not in dispute that in the consent decree of divorce, a

condition was mentioned that custody of the minor child would

remain with the respondent No.4, however, the petitioner, while

contending that his consent was fraudulently obtained has

approached this Court by way of filing DB Civil Misc. Appeal

No.1047/2021, which came to be disposed of by this Court on

12.07.2023 while specifically observing that the question

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regarding custody of the minor child will be decided by the Family

Court No.2 Jodhpur and that the said observations were also made

as per the submissions of the petitioner only.

True it is, that a Habeas Corpus Petition is maintainable in

the custody of matter of a minor, but in the facts and

circumstances of the present case, it is clear that this Habeas

Corpus Petition is not maintainable.

The Hon'ble Supreme Court, while distinguishing the case of

Yashita Sahu (supra) has observed as under:-

"10. Having heard the petitioner as well as the learned counsel for the parties and on perusal of the record, before going into the merits of the claim of the petitioner, the preliminary question to be decided by this Court would be with regard to the maintainability of this petition.

11. It cannot be disputed that both the parents may have a right for custody of their children but the said question of custody is to be considered and decided after evidence is adduced by the parties, and after following the due procedure, which would be under the provisions of the Guardians and Wards Act; and the petitioner has already filed a petition under the said Act, which matter is pending consideration before the Trial Court in Kolkata.

12. The decision in Yashita Sahu (supra) is distinguishable on facts. The said case related to a matter in which both the parents, along with the children, were residing in United States and since there were disputes between the husband and wife, and the wife had taken away the children and started living separately, the father filed a petition for custody of the children before the court in the United States, which directed the wife to produce the children and instead the wife took the children from United States to India. It was in such circumstances that in a Habeas Corpus Petition before the Rajasthan High Court, the High Court directed the wife to return to the United States along with the minor daughter within six weeks to enable the territorial jurisdictional court in United States to pass further orders in the proceedings already pending there.

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It was in the aforesaid facts that the writ petition for Habeas Corpus was held to be maintainable. This Court in the case of Tejaswini Gaud (supra) has categorically laid down the law with regard to the maintainability of Habeas Corpus Petition in Paragraphs No. 19 & 20, which are extracted below:

"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. 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 view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, 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 was illegal and without any authority of law. 20. 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. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. 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. It is only in exceptional cases, the rights of the

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parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

13. In the present case, the admitted facts being that the mother has the custody of two minor children, for which the petitioner(father) has already filed a petition under Section 12 of the Act, which is pending consideration; and the custody of the children with the mother, who is a natural guardian, cannot be said to be illegal and, thus, the petition for habeas corpus would not be maintainable and that too directly under Article 32 of the Constitution of India. While saying so, we are not going into the question whether the maintenance amount directed by the Trial Court in the proceedings under the Protection of Women from Domestic Violence Act,2005 has been paid or not. The statutory remedy available under the Guardians and Wards Act is the appropriate remedy, which has already been availed by the petitioner. There are no extra ordinary or exceptional circumstances in the present case requiring this Court to exercise its jurisdiction under Article 32 of the Constitution of India. The remedy already availed by the petitioner is an appropriate and effective remedy, where all the questions raised herein regarding the welfare and wellbeing of the children can be considered in accordance with law, after appreciation of the evidence, which may be led by the parties."

From the facts noted above, we also find that there are no

extraordinary or exceptional circumstances in the present case

requiring this Court to exercise its jurisdiction under Article 226 of

the Constitution of India. As noted earlier the petitioner has

already availed remedy for custody of minor son which is pending

consideration and wherein the Family Court No.2, Jodhpur has

already given visitation rights to the petitioner. The petitioner has

also challenged the said order of the Family Court No.2, Jodhpur

by way of writ petition which is pending consideration. The facts of

the present case are quite distinguishable from the facts of the

case of Yashita Sahu (supra). The facts of the present case are

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near to the case of Jose Antonio Zalba Diez Del Corral Alias

Jose Antonio Zalba (supra). At present the minor is in custody of

respondent No.4 who is also a natural guardian and in such

circumstances, we have no hesitation in holding that this Habeas

Corpus Petition is not maintainable.

Taking into consideration the fact that in the custody

proceedings initiated at the instance of the petitioner, the Family

Court No.2, Jodhpur has already given visitation rights to the

petitioner pursuant to which he met his minor son twice and also

taking into consideration the fact that soon after disposal of DB

Civil Misc. Appeal No.1047/2021, the petitioner has filed this

Habeas Corpus Petition, we are of the view that the instant

petition is filed by the petitioner only with an intention to harass

the respondent No.4. Such an attempt on behalf of the petitioner

is nothing but a classic case of the abuse of the process of the

Court.

Hence, this Habeas Corpus Petition is dismissed as not

maintainable with a cost of Rs.25,000/- upon the petitioner, which

shall be deposited by him within a period of one month from today

in Family Court No.2, Jodhpur, where the custody proceedings

initiated at his instance are pending consideration.

The amount of cost shall be disbursed to the respondent

No.4 on moving an appropriate application in this regard.

(RAJENDRA PRAKASH SONI),J (VIJAY BISHNOI),J 42-nitin/-

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