Bharat Kumar, S/o. Shri Bhikha Bhai, Through His Power Of Attorney Shri Pravin Kumar S/o. Shri Bhikha Bhai vs State Of Rajasthan, Through The Secretary, Home Department, Government Of Rajasthan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 1209

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
VIJAY BISHNOI, RAJENDRA PRAKASH SONI, JJ.
Bharat Kumar, S/o. Shri Bhikha Bhai, Through His Power Of Attorney Shri Pravin Kumar S/o. Shri Bhikha Bhai – Petitioner
Versus
State Of Rajasthan, Through The Secretary, Home Department, Government Of Rajasthan and Ors. – Respondents
D.B. Habeas Corpus Petition No. 317 Of 2023
Decided On : 16-10-2023

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

Headnote:
Habeas Corpus - Custody Dispute - Hindu Marriage Act, 1955, Section 13(B); Guardians and Wards Act - The court discussed the maintainability of a Habeas Corpus Petition in a custody dispute involving a minor child. The court highlighted the provisions of the Guardians and Wards Act and the circumstances under which a Habeas Corpus Petition is maintainable in child custody matters. The court emphasized that the extraordinary remedy of Habeas Corpus is only maintainable when the detention of a minor child is illegal and without any authority of law. The court also noted that the welfare of the child is of paramount importance and that the ordinary remedy lies under the Guardians and Wards Act. The court ultimately dismissed the Habeas Corpus Petition as not maintainable, citing that the petitioner's actions amounted to an abuse of the process of the court.
Fact of the Case:

The petitioner sought the production and safe passage of his minor son, who was in the custody of the respondent No.4. The custody dispute arose following a mutual divorce petition under Section 13(B) of the Hindu Marriage Act, which granted custody to the respondent No.4. The petitioner filed various appeals and petitions challenging the custody arrangements.
Finding of the Court:

The court found that the Habeas Corpus Petition was not maintainable in the present case, as the custody proceedings were already pending consideration before the Family Court No.2, Jodhpur. The court emphasized that the welfare of the child is of paramount importance and that the ordinary remedy lies under the Guardians and Wards Act.
Issues: The main issue was the maintainability of the Habeas Corpus Petition in a custody dispute where the custody proceedings were already pending before the Family Court No.2, Jodhpur.
Ratio Decidendi: The court held that the Habeas Corpus Petition was not maintainable, emphasizing that the extraordinary remedy of Habeas Corpus is only applicable when the detention of a minor child is illegal and without any authority of law. The court also highlighted the importance of the welfare of the child and the ordinary remedy under the Guardians and Wards Act.
Final Decision: The Habeas Corpus Petition was dismissed as not maintainable, and the petitioner was ordered to pay a cost of Rs.25,000 to the respondent No.4 within a month.

JUDGMENT :

This Habeas Corpus Petition under Article 226 of the Constitution of India is filed by the petitioner seeking following reliefs :

“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.”

2. 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.

3. 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.

4. 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.

5. 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.”

6. 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 dated 20.09.2022, wherein visitation rights have been given to the petitioner.

7. 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.

8. 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 ill

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