Back
2020 Supreme(MP) 553
S. C. Sharma, J.
Anushree Goyal v. State of M. P. & Others
Writ Petition No. 7739 of 2020(Indore); Decided on 8.6.2020
Hitesh Sharmafor petitioner; Pushyamitra Bhargav, Additional Advocate General for respondent/State; R. S. Chhabra for respondents No. 4, 5 and 6.
Headnote:
(1) Constitution of India -- Art. 226 -- Guardians and Wards Act, 1890 -- S. 9 -- writ of habeas corpus -- maintainability -- custody of child -- claimed by mother residing at Indore -- father in America -- came down and left 2 year old minor child with grandparents at Gwalior - petition for issuance of writ in nature of habeas corpus is certainly maintainable in peculiar facts andcircumstances of case. Capt. (1981)2 SCC 277 followed. 2019 (4) JLJ 125 and W. P. (Civil) Diary No.11058 of 2020 decided on 30.4.2020 referred to. [Para 10
(2) Constitution of India -- Art. 226 -- Guardians and Wards Act, 1890 -- Ss. 4, 7 and 9 -- Hindu Minority and Guardianship Act, 1956 -- S. 6 -- writ of habeas corpus -- jurisdiction -- custody of child -- parents Indian -- child US citizen -- mother residing at Indore -- father in America -- child living with grand parents at Gwalior -- father gavepower of attorney and authorization in favour of grand parents to look after child -- there is prescribed procedure for appointment of guardians under Guardians and Wards Act -- procedure adopted by father unheard -- of -- does not create any right favour of grand parents -- this Court is not dealing with application u/s. 4 of Guardians and Wards Act -- is dealing with habeas corpus writ petition -- welfare of child is of paramount importance -- mother is Indian citizen and she does have legal right guaranteed under Constitution of India to file writ petition under Article 226 for issuance of writ in nature of habeas corpus -- Court will not throw away petitioner on ground of jurisdiction or on ground of alternative remedy under Guardians and Wards Act -- keeping in view S. 6 of Hindu Minority and Guardianship Act, child given in custody of mother. (2019) 7 SCC 490, (1981) 2 SCC 277and 2000 (1) GLH 616 followed. AIR 1976 MP 92 and AIR 1987 HP 34 relied on.
[Paras 15 to 17 & 19
¼1½ Hkkjr dk lafo/kku && vuq- 226 &&lja{kd vkSj izfrikY; vf/kfu;e] 1980 && /kkjk 9 && canh izR;{khdj.k fjV && pykus ;ksX; gksuk && viR; dh vfHkj{kk && bankSj esa fuokljr ekrk }kjk nkok && firk vejhdk esa && vkdj 2 o"khZ; vizkIro; viR; dks Xokfy;j esa firkegh && firkeg ds ikl NksM+k x;k && ekeys ds vuwBs rF;ksa vkSj ifjLFkfr;ksa esa] canh izR;{khdj.k dh izÑfr dh fjV tkjh fd, tkus ds fy, ;kfpdk fuf'pr :i ls pykus ;ksX; gSA ¼1981½2 ,l lh lh 277 vuqlfjrA 2019¼4½ ts ,y ts 125 rFkk fjV ;kfpdk ¼flfoy½ Mk;jh Ø- 11058 lu~ 2020 fu.khZr fnukad 30-4-2020 fufnZ"VA ¼iSjk 10
¼2½ Hkkjr dk lafo/kku && vuq- 226 && laj{kd vkSj izfrikY; vf/kfu;e] 1890 && /kkjk 4] 7 rFkk 9 && fganw vizkIro;rk vkSj laj{kdrk vf/kfu;e] 1956
&& /kkjk 6 && canh izR;{khdj.k fjV && vf/kdkfjrk && viR; dh vfHkj{kk && ekrk&firk Hkkjrh; && viR; vejhdh ukxfjd &&ekrk bankSj esa fuokljr && firk vejhdk esa &&viR Xokfy;j esa firkegh&firkeg ds ikl fuokljr && firk us viR; dh ns[kHkky ds fy, firkegh&firkeg ds i{k esa eq[rkjukek vkSj izkfèkdkj fn;k &&laj{kdksa dh fu;qfDr ds fy, laj{kd vkSj izfrikY; vf/kfu;e ds v/khu fofgr izfØ;k gS &&firk }kjk viukbZ xbZ izfØ;k dHkh lquh ugha xbZ && firkegh && firkeg ds i{k esa dksbZ vf/kdkj l`ftr ugha && ;g U;k;ky; laj{kd vkSj izfrikY; vf/kfu;e dh /kkjk 4 ds v/khu vkosnu ij fopkj ugha dj jgk && canh izR;{khdj.k fjV ;kfpdk ij fopkj dj jgk gS && viR; dk dY;k.k loksZifj egRo dk gS && ekrk Hkkjrh; ukxfjd gS rFkk mls vo'; gh Hkkjr ds lafo/kku ds v/khu izR;kHkwr] canh izR;{khdj.k dh izÑfr dh fjV tkjh fd, tkus ds fy, vuqPNsn 226 ds v/khu fjV ;kfpdk Qkby djus dk fof/kd vf/kdkj gS && U;k;ky; ;kfpuh dks vf/kdkfjrk ds vk/kkj ij laj{kd vkSj izfrikY; vf/kfu;e ds v/khu vkuqdfYid mipkj ds vk/kkj ij fu"dkflr ugha djsxk && fganw vizkIro;rk vkSj laj{kdrk vf/kfu;e dh /kkjk 6 n`f"V esa j[krs gq,] viR; dks ekrk dh vfHkj{kk esa fn;k x;kA ¼2019½7 ,l lh lh 490] ¼1981½2 ,l lh lh 277 rFkk 2000¼1½ th ,y ,p 616 vuqlfjrA , vkb vkj 1976 ,e ih 92 rFkk , vkb vkj 1987 ,p ih 34 voyafcrA ¼iSjk 15 ls 17 ,oa 19
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 5 to 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 13.5.2013 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 1.1.2018 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 16.3.2020, however, she came to know that her husband came down from America and left the minor child, who is 2 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 4.6.2020 and the following order was passed:-
“Parties through their counsel.
Shri Amol Shrivastava, learned government advocate accepts notice on behalf of the respondents No.1, 2 and 3.
Let notice be issued to the respondents No.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 respondents No. 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 8.6.2020.
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 8.6.2020, which is prohibited under the complete lock-down.
The respondents No.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 interim
