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MADHYA PRADESH HIGH COURT
Mr. S.C. Sharma, J.
Anushree Goyal - Appellant
Versus
State Of Madhya Pradesh And Others - Respondents
Writ Petition No. 7739 of 2020
Decided On : 08-06-2020
Habeas Corpus - Custody of Minor Child - Guardians and Wards Act, 1890, Article 226 of the Constitution of India - Section 9 of Guardians and Wards Act, 1890, Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari, Writ Petition (Civil) Diary No.11058/2020 (Tanuj Dhavan vs. Court In Its Own Motion) - Capt. Dushyant Somal vs. Sushma Somal and another (1981) 2 SCC 277 - Veena Agrawal vs. Shri Prahlad Das Agarwal AIR (MP) (1976) 0 92 - Kamla Devi vs. State AIR (HP) 1987 0 34 - Sarita Sharma vs. Sushil Sharma (2000) 1 G.L.H. 616
Fact of the Case:
The petitioner filed a Habeas Corpus petition seeking custody of her 2-year-old child who was with the grandparents in India, while the petitioner's husband was in the USA. The husband had obtained an ex-parte injunction from an American court, restraining the petitioner from living in the house belonging to him. The child was born in the USA and is a US citizen.
Finding of the Court:
The court found that the Habeas Corpus petition was maintainable, and considering the welfare of the child, directed the grandparents to hand over the child to the mother. The court emphasized the paramount importance of the welfare of the child and the mother's right to custody, especially for a child under five years of age.
Issues: The main issue was the custody of the 2-year-old child, with the grandparents claiming guardianship based on a Power of Attorney and Authorization from the husband, and citing jurisdiction under the Guardians and Wards Act, 1890.
Ratio Decidendi: The court relied on various legal provisions and precedents, including the Guardians and Wards Act, 1890, and the judgment in Capt. Dushyant Somal vs. Sushma Somal and another (1981) 2 SCC 277, to establish the maintainability of the Habeas Corpus petition and the paramount importance of the child's welfare and the mother's right to custody.
Final Decision: The court allowed the Habeas Corpus petition, directing the grandparents to hand over the child to the mother, emphasizing the mother's right to custody and the welfare of the child. The court also allowed for the parties to approach the Civil Court under the Guardians and Wards Act, 1890, without being influenced by the order passed by the court.
ORDER
1. The petitioner before this Court has filed present petition under Article 226 of the Constitution of India for issuance of an appropriate writ in the nature of Habeas Corpus directing the respondents No.1 to 5to produce respondent No.6 before this Court who is allegedly in illegal detention of respondents No.4 and 5. It has been stated in the writ petition that a marriage took place between Shri Ankit Agrawal and the petitioner on 13/05/2013 at Indore. It was an arranged marriage and the petitioner went to United States of America (Columbus) along with her husband. A child namely Arjun Agrawal was born on 01/01/2018 in America.
2. The petitioner has further stated that the husband as well as respondents No.4 and 5 (the in-laws) made her life miserable and they committed cruelty. She has also stated that she was assaulted on number of occasions, however, as it was a matrimonial dispute she lived with a hope that time will resolve the dispute and continued with her husband in America.
3. The petitioner has further stated that her husband finally has obtained some ex-parte order from some American Court and the petitioner was restrained from living in the house belonging to the husband and in those circumstances, she left with no other option except to come back Indore and to reside with her parents on 29/12/2019. She has also lodged a complaint with Police Station -Mahila Thana, Indore on 16/03/2020, however, she came to know that her husband came down from America and left the minor child, who is 02 years in age with her in-laws.
4. The petitioner has further stated that child is a very young child and the old grand parents are senior citizens, they are not able to look after the infant child and inspite of the repeated requests of the petitioner, they have not even permitted the petitioner to meet her child. In those circumstances, the petitioner has filed this present petition. The matter was listed before this Court on 04/06/2020 and the following order was passed:-
"Parties through their counsel.
Shri Amol Shrivastava, learned government advocate accepts notice on behalf of the respondent Nos.1, 2 and 3.
Let notice be issued to the respondent Nos.4 and 5 by e-mail, fax as well as by any other alternative mode.
In addition, the petitioner shall also be free to serve the respondent Nos.4 and 5 by e-mail, fax or by any other alternative mode.
It has been stated by the petitioner that she is mother of the respondent No.6 - Arjun Agarwal, who is aged about 2 years and being the mother, she is her natural guardian and in those circumstances, present habeas corpus petition has been filed.
The Superintendent of Police, Indore is directed to keep the corpus present before this Court on 08.06.2020.
It is needless to mention that the Superintendent of Police, Indore shall observe all the required protocol while bringing the corpus to this Court. The matter involves the custody of a minor child aged about 2 years and therefore, the Superintendent of Police, Indore shall take all due precautions in the matter.
The matter is being heard through video conferencing, however, as this is a habeas corpus petition involving the minor child aged about 2 years, for this particular matter, the Superintendent of Police, Indore shall be permitted to enter the premises on 08.06.2020, which is prohibited under the complete lock-down.
The respondent Nos.4 and 5 are also permitted to enter the premises along with the child.
The petitioner shall also be permitted to enter the premises and as an exceptional cases, the hearing of this matter shall take place in Court No. 13 and the Registry shall ensure that all the norms relating to social distancing prescribed by Government of India / State of Madhya Pradesh are followed in the matter.
Learned counsel for the petitioner has stated before this Court that there is every possibility of sending the minor child back to the America as his father is residing in America and, therefore, by way of interi
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