The main legal point established in the judgment is that the habeas corpus petition seeking release of a spouse and child from alleged wrongful restraint is not maintainable when the parties are involved in a matrimonial dispute and the custody of the child is pending before the Family Court.

JUDGMENT :

N.K. Chandravanshi, J.

1. By means of present petition under Article 226 of the Constitution of India, the petitioner has invoked extraordinary jurisdiction of this Court with a prayer that respondents be directed to release the wife/respondent No. 1 and their daughter - Manya from wrongful restrain of respondents.

2. The petitioner's marriage was solemnized with respondent No. 1 -Smt. Ritu Suhane on 2.2.2012 as per Hindu rites and customs. On 23.7.2014, they were blessed with one daughter, namely, Manya. But as per averments made in the petition, due to unnecessary interference of family members of maternal side of respondent No. 1, she used to go to her maternal home frequently, from where petitioner brought her back. But on 28.11.2016, respondent No. 1 alongwith her daughter baby Manya left her matrimonial home on her own will, and thereafter, residing with her parents. Since beginning the petitioner is having love & affection for his wife and daughter but respondent No. 1/wife, without any sufficient and valid reasons, has deprived him from his marital and parental right. It is further stated that despite granting visiting rights to the petitioner to meet his daughter by the Court vide order dated 20.11.2018, respondents did not allow him to meet his daughter. Even she did not permit the petitioner to talk over telephone with his daughter and respondents No. 2 to 4 are pressurising respondent No. 1 to seek divorce from the petitioner. The petitioner made numerous attempts to bring his wife and daughter back. Even he has filed petition under Section 9 of the Hindu Marriage Act, 1955 in the Court of Additional Principal Judge, Family Court, Raipur but he did not succeed to bring them back, and therefore, he has filed the instant habeas corpus petition.

3. Petitioner appearing in person would submit that his wife (respondent No. 1 herein) has left her matrimonial home alongwith their daughter without any sufficient and valid reasons and she has filed the cases under Section 21 of the Protection of Women from Domestic Violence Act, 2005 (henceforth "Act, 2005") against him and also for getting maintenance, in the Court of Begumganj, District Raisen (M.P.), which has no jurisdiction to hear the matter. He would further submit that vide order dated 20.11.2018, he has been granted visiting right from 3:00 P.M. to 6:00 P.M. on every Friday to meet his daughter by the Court, but he has never been allowed by respondents to meet his daughter. He would also submit that respondents have deprived him to show his love and affection for his daughter since last six years. Even respondents do not permit him to talk to his daughter over phone. Due to inducement made by his in-laws, respondent No. 1/wife is harassing him by keeping away from matrimonial and parental enjoyment. The respondents are creating pressure for divorce, so that they could get handsome alimony from the petitioner.

4. Learned counsel appearing for the respondents has filed reply-affidavit and while referring to the same, he would raise preliminary objection with regard to maintainability of habeas corpus petition contending that it is a dispute between husband and wife, and continuous harassment and cruelty were meted out by the petitioner to respondent No. 1/wife and on 28.11.2016, he badly beat the respondent No. 1 and threw them i.e. respondent No. 1 and their daughter baby Manya from his home, and therefore, respondent No. 1 informed the police of Police Station Azad Nagar, Raipur and went to her parental home along with her daughter baby Manya. He further contended that in the present fact situation of the case, habeas corpus petition is not maintainable. If the petitioner wants custody of his daughter and conjugal rights, then in that regard, efficacious remedy is available under the Guardians and Wards Act, 1890/Hindu Marriage Act, 1955, which petitioner has already availed before the competent court of Raipur/Bhopal. Even respondent No. 1/wife herself has f