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Sr. No. 14

Regular list

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(Crl.) no. 522/2022

Ayat Nabi

…Petitioner(s)

Through:

Ms. Sabeena Naveed, Advocate

Vs.

UT of J&K and ors.

...Respondent(s)

Through: Ms. Insha Haroon, GA & Mr. Sajad Geelani, Advocate

CORAM:

HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

ORDER

10.08.2022

1. Heard Learned Counsel for the parties.

2. Through this writ petition a direction in the nature

of habeas corpus is sought by the petitioner for the

purposes of securing the production and physical custody

of the person of her newborn child (son) from her husband

who is the respondent no. 4 and who is the father of the

child.

3. The situation which has led the petitioner to

approach this court with a petition for habeas corpus

direction is the refusal and rejection of her petition made

on 01/07/2022 to the Chief Judicial Magistrate, Sopore

under section 97 of the Code of Criminal Procedure, 1973

(in short Cr.P.C, 1973) for issuance of search warrant for

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production of her child. The Chief Judicial Magistrate,

Sopore, vide his order dated 13/07/2022, rejected her

petition on the ground that as the child was unwell and

being looked after by his father in terms of medical

treatment from SKIMS Srinagar, so the custody of the child

with the father was not amounting to an offence.

4. This writ petition was filed on 25/07/2022. The

birth of child of the petitioner and the respondent no. 4

has taken place on 06/05/2022 which means that at the

time of hearing and adjudication of this writ petition the

child is still less than four months old and instead of being

in the lap of the petitioner to receive breast feeding from

her is in the arms of the respondents no. 4. The marital

relationship of the petitioner and the respondent no. 4 is

said to be in a state of spilt leaving the two residing in

separation from each other. The petitioner is staying in her

parental house in village Mundji while the respondent no.

4 is residing in his parental house in village Duroo. Thus,

the petitioner felt herself separated from her newborn child

from the very date of his birth in the hospital where she

had undergone a cesarean for childbirth when the

respondent no. 4 had taken the child for post birth urgent

medical treatment of the child. The petitioner feels that by

not restoring the physical custody of the child to her the

respondent no. 4 and his family members are committing a

wrongful act and which is not in the welfare of the child.

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5. The petitioner and the respondent no. 4 solemnized

marriage in year 2021 and the marriage is an arranged

one. The petitioner and the respondent no. 4 come from a

very humble rural background. The respondent no. 4 is a

low scale govt. employee while the petitioner is a household

woman having studied up to 12^th Standard.

6. This court, while issuing notice to the respondent no.

4 in the case, vide an order dated 27/07/2022 also

directed the S.H.O Police Station Bomai, Sopore, to secure

the presence of the respondent no. 4 along with child

before this court. Direction given vide order dated

27/07/2022 was reiterated in an order dated 01/08/2022

for S.H.O Police Station, Bomai, to carry out the

compliance by the next date which was 09/08/2022.

7. Accordingly, the respondent no. 4, accompanied with

his own mother carrying the child in her arms, and the

learned counsel representing the respondent no. 4, had

come present.

8. The petitioner along with her counsel was also

present.

9. Before ordering the respondent no. 4 to hand over the

custody of the child to the petitioner, this Court had

deemed it fit to first examine and interview both the

petitioner and the respondent no. 4 and also their

respective counsel by holding the proceedings in the court

chambers so as t