Point of Law: With the passage of time, it has been realized that people used to feel proud to tell the truth in the courts, irrespective of the consequences, but that practice no longer proves true, in all cases.

ORDER :

The present writ petition is filed in the form of Habeas Corpus by the father of respondent No.4 seeking direction to the respondents for production of respondent No.4-Amaya.G.Jain before this Court and hand-over her custody to the petitioner in the interest of justice.

I. FACTS OF THE CASE:

2. It is the case of the petitioner that the petitioner and the third respondent's marriage was solemnized on 30.06.2009 and respondent No.4-baby girl was born out of the wedlock. The said child was born premature and was under treatment in various Hospitals. It is further stated that respondent No.3 had taken away the baby girl from the petitioner's custody on 05.10.2021 and since then the petitioner is not allowed to talk with the baby girl and respondent No.3 is not even showing her, despite the petitioner’s repeated request. It is further stated that respondent No.3 used to frequently run away from her matrimonial home saying that she was forcibly married to the petitioner and was filing false and frivolous cases against the petitioner and his family members.

Therefore, the petitioner had left with no other option other than to file divorce petition before the family court in M.C.No.5149/2016. During the pendency of the trial, the petitioner and his family members were eagerly trying to settle the issues with respondent No.3 and as a result of the same, the divorce petition came to be withdrawn and from there onwards, the petitioner and respondent No.3 started living together in Bengaluru. But once again, respondent No.3 has left her matrimonial home along with her minor child, who is under treatment, putting child’s life in danger. Thus, it is stated that the petitioner is filing Restitution Conjugal Rights Petition under Section 9 of the Hindu Marriage Act, 1955 against respondent No.3 before the family court. Therefore, the petitioner has filed the present writ petition for the relief sought for.

3. Respondent No.3 being natural mother of respondent No.4-minor child filed objections to the present writ petition and specifically contended that the present writ petition in the form of Habeas Corpus filed against her is not maintainable and the same is liable to be dismissed. It is further contended that the matrimonial case in M.C.No.5149/2016 filed seeking divorce came to be withdrawn by the petitioner. Thereafter at the intervention of senior members of both families, the petitioner and respondent No.3 were re-united and had led matrimonial life. They were blessed with a female child i.e., respondent No.4. Respondent No.3 submits that the said minor child is with her and the minor child is hale and healthy. She is growing very well and getting regular treatment in Kathouli, which is one hour journey to reach Delhi. It is further contended that as per Annexure-R1, the medical prescription, the child is in safe custody of respondent No.3-natural mother of the minor child. This aspect of the matter is also well within the knowledge of the petitioner and his family members and despite the same, the petitioner willfully filed the present writ petition only to harass respondent No.3. Therefore, sought for dismissal of the writ petition.

II. ARGUMENTS OF THE LEARNED COUNSEL FOR THE PARTIES:

4. We have heard Sri. Anish Jose Antony, learned counsel for the petitioner through virtual mode and Sri. Thejesh.P, learned High Court Government Pleader for Respondent Nos.1 and 2, Sri. Fayaz Sab, learned counsel for respondent Nos.3 and 4 through physical mode.

5. Sri. Anish Jose Antony, learned counsel for the petitioner reiterating the grounds urged in the present petition contended that respondent No.3-wife of the petitioner has taken away the baby girl from the custody of petitioner illegally and she is not allowing him to talk with his daughter and not even showing her to him despite repeated request. Thereby, the writ petition in the form of Habeas Corpus is maintainable in view of the dictum of the Hon'ble Supreme Court in the case of Tejaswin