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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Satyen Vaidya, JJ.
Pooja Kashyap - Petitioner
Versus
State of H. P. & Ors. - Respondents
Cr.WP No. 15 of 2023
Decided On : 29-12-2023
Habeas Corpus - Custody of Minor - Guardians and Wards Act, 1890, Family Court Act, 1984 - Article 226 of the Constitution of India
Fact of the Case:
The petitioner sought custody of her minor son, alleging illegal acts by her husband and mother-in-law. The court found that the cause of action arose in the State of Maharashtra, beyond its territorial jurisdiction, and dismissed the petition, advising the petitioner to approach the competent court in the relevant jurisdiction.
Finding of the Court:
The court found that it lacked territorial jurisdiction to entertain the petition as the minor child resided outside its jurisdiction. It clarified that it did not express any opinion on the merit of the case and dismissed the petition, allowing the petitioner to approach the competent court with territorial jurisdiction.
Issues: Territorial jurisdiction of the court, custody of the minor child, application of the Guardians and Wards Act, 1890, and the Family Court Act, 1984.
Ratio Decidendi: The court's jurisdiction is determined by the place where the minor ordinarily resides, as per the provisions of the Guardians and Wards Act, 1890 and the Family Court Act, 1984. The court clarified that a cause of action must arise within its territorial jurisdiction for it to decide a dispute.
Final Decision: The petition was dismissed due to lack of territorial jurisdiction, and the petitioner was advised to approach the competent court with territorial jurisdiction. The court did not express any opinion on the merit of the case.
JUDGMENT :
Tarlok Singh Chauhan, J.
The instant petition has been filed for grant of the following substantive reliefs:-
B) The Hon'ble Court may be further pleased to direct the respondents No. 1 to 3 authorities to take appropriate action against respondents No. 4 and 5 for their illegal acts.
2. It is averred that the petitioner was married to respondent No. 4 on 30.11.2012 at village Jaswani, Tehsil and District Bilaspur, H.P. The petitioner had accompanied respondent No. 4 (husband) to his matrimonial home at Nasik and thereafter to his place of posting at Alwar. The relations between the petitioner and respondents No. 4 (husband) and 5 (mother-in-law) were not cordial from the inception of marriage.
3. The petitioner gave birth to a male child (Adhrit) on 30.12.2013 but the situation became so unbearable that she alongwith the infant had to be brought to her native place at Ghumarwin from Nasik by her mother and maternal uncle.
4. The petitioner was constrained to approach the Court under the Protection of Women from Domestic Violence Act wherein apart from other reliefs she also claimed custody of the minor child (Adhrit). The learned Trial Court vide order dated 08.05.2018 allowed the interim custody of the minor child to the petitioner and at the same time allowed visitation right to respondent No. 4.
5. The Respondent No. 4 assailed the order of the learned Trial Court before the learned Sessions Judge, Bilaspur, however, the appeal so filed was dismissed vide judgment dated 19.03.2019.
6. Thereafter, respondent No. 4 assailed both the aforesaid orders by filing Criminal Revision No. 327 of 2019 and even this revision petition was dismissed vide judgment dated 07.01.2022, by specifically observing that the child was in the custody of the mother when the same was taken away by respondent No. 4. This Court also made it clear that the order passed by the learned Magistrate would only amount to a temporary custody as the final adjudication is to be made by the competent Court under the Guardians and Wards Act, 1890, but no proceedings thereunder have been initiated by respondent No. 4.
7. It is further averred that after passing of the judgment by this Court on 07.01.2022, respondent No. 4 in furtherance of a conspiracy came to Bilaspur on 16/17.03.2022 and apologised to the petitioner and her parents and offered to take the petitioner and the child with him, with a promise to mend his ways and take good care of them. The petitioner in an endeavour to mend fences, agreed to accompanied respondent No. 4 alongwith the minor child. Respondent No. 4 took them to Jammu, where he was posted at that time. The petitioner alongwith the minor (Adhrit) stayed with him at Jammu for about one year but the behaviour of respondent No. 4 had not changed much and he would often ill-treat and physically abuse her under the influence of alcohol, but the petitioner tried to adjust and endure in the hope that the child was able to get attention, love and affection of both parents, but in vain.
8. Respondent No. 4 joined an IIM Course at Mumbai and left the petitioner and Adhrit with respondent No. 5 at his permanent residence at Nasik for about six months. Thereafter, respondent No. 4 came to Nasik after completing course and physically abused the petitioner and forcefully turned her out of house on 10.09.2023.
9. The petitioner sought refuge with some neighbours and later shifted to Army Guest House alongwith her son. The petitioner was later forcibly taken to Sujata Birla Hospital at Nasik by respondents No. 4 and 5 on 14.09.2023, where she was deceitfully got administered some sedative medicines and the minor child was surreptitiously and illegally taken away from her custody.
10. Respondent No. 4 telephonically informed the petitioner's family at Bilaspur to ta
The writ of habeas corpus in child custody cases is an extraordinary, discretionary remedy predicated on the child's welfare. While not a substitute for statutory procedures, courts may intervene via....
The main legal point established in the judgment is the paramount consideration of the child's best interest and welfare in determining custody, as well as the relevance of foreign court orders and t....
The main legal point established in the judgment is that the custody of a minor child with the father as the natural guardian cannot be held illegal or unlawful unless it is in breach of some authori....
The welfare of the child is the paramount consideration in determining custody, and the writ of habeas corpus is maintainable in child custody matters where the detention of a minor child by a parent....
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