Madhya Pradesh High Court
Roshni Choubey vs Subodh Gautam on 5 March, 2019
Equivalent citations: AIR 2019 (NOC) 290 (M.P.) (INDORE BENCH)
Author: Virender Singh
Bench: Virender Singh
1 WP No.2991/2019
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
DIVISION BENCH : HON'BLE SHRI JUSTICE S. C. SHARMA
HON'BLE SHRI JUSTICE VIRENDER SINGH
Writ Petition No.2991/2019
Roshini Choubey
vs.
Subodh Gautam and others
Counsel for the Parties : Mr Vivek Dalal, learned counsel for
the petitioner.
Mr Sunil Jain, Sr. Counsel with
Mr Kushagra Jain, learned counsel
for the respondent No.1.
Mr R.S. Chhabra, Additional
Advocate General for the respondent
Nos. 2, 3 and 4 .
Whether approved for reporting : Yes
Law laid down : Article 226 - Habeas Corpus -
Writ against husband for illegal
custody of child, can be issued.
Child taken away from the wife's
legal custody and, therefore, a
Writ of Habeas Corpus can be
issued. The welfare of the child
is of paramount importance.
Significant paragraph numbers : 8 to 21
JUDGMENT
(Delivered on this 5th day of March, 2019) (S. C. SHARMA) (VIRENDER SINGH) JUDGE JUDGE Rashmi 2 WP No.2991/2019 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE WP No.2991/2019 (Roshini Choubey Vs. Subodh Gautam and others) INDORE dt. 05-03-2019 Mr Vivek Dalal, learned counsel for the petitioner (Roshini Choubey).
Mr Sunil Jain, Sr. Counsel with Mr Kushagra Jain, learned counsel for the respondent No.1 (Subodh Gautam).
Mr R.S. Chhabra, Additional Advocate General for the respondents No. 2, 3 and 4.
The present writ petition has been filed by the petitioner for issuance of a writ in the nature of Habeas Corpus under Article 226 of the Constitution of India seeking custody of a minor child aged about four years, namely Master Samarth.
02. The facts of the case reveal that the marriage of the petitioner with respondent No.1 who is a Police Officer took place on 24-02-2014 and they were blessed with a male child on 25-02-2015. The marriage finally ended up with a divorce and a decree of divorce by mutual consent by taking into account Section 13-B of the Hindu Marriage Act, 1955 was passed on 10-07-2017. The respondent No.1 got re-married on 20-02-2018 and from the second wife he is again blessed with a child. He is a Police Officer from the State of Uttar Pradesh, presently posted at Kalpi, District Jaloun, Uttar Pradesh. The petitioner came up before this court by stating that her minor child who is about four years was taken away forcibly by the respondent No.1 in the month of October, 2018 when the child 3 WP No.2991/2019 was at Katni and the petitioner, who is the natural guardian of the child, who is residing at Indore was left with no other choice except to file this present petition.
03. This court by an order dated 19-02-2019 has directed the Sr. Superintendent of Police, Indore to keep the corpus present and the Director General of Police, Uttar Pradesh was also directed to extent all possible corporation to the officer, who is deputed to produce the corpus. The child is very much present before this court and the child has been permitted to stay with the mother for some time.
04. Mr Vivek Dalal learned counsel appearing for the petitioner has argued before this court that the present petition for issuance of a writ of Habeas Corpus is very much maintainable in light of the judgment delivered by Hon'ble Apex court in the case of Capt. Dushyant Somal Vs. Smt Sushma Somal and other reported in (1981) 2 SCC 277.
05. Learned counsel has also argued before this court that on an application preferred for grant of divorce on mutual consent, the respondent No.1 has categorically stated before the Family Court that the child shall be residing with the mother. The statement is on record at Page No.16 (PW-1 ) by Mr Subodh. The mother has also stated before the Family court that the child shall be residing with the mother only. His contention is that in light of the statement made by both the parents before the Family Court, the child was rightly given to the mother and he was residing happily with the mother till he was taken away forcibly in the month of October, 2018 by the father. He has 4 WP No.2991/2019 also drawn the attention of this court towards the judgment and decree which is on record and his contention is that as per the judgment and decree passed by the trial court maintenance is being paid by the father for child as well as for the mother. It has been stated that keeping in view welfare of the child and also keeping in view the Hindu Minority and Guardianship Act, 1956 to be more specific section 6 as a child is aged about four years, the child be permitted to remain with the custody of mother and as he was forcibly taken away from the custody of the mother this court has got ample power to restore the custody in a writ petition in which a relief of issuance of a writ in the nature of Habeas Corpus has been sought.
06. On the other hand learned Sr. Counsel Mr Sunil Jain with Mr Kushagra Jain has argued before this court that this court does not have territorial jurisdiction to entertain this present writ petition. To bolster his submissions, Shri Sunil Jain has placed reliance upon a judgment delivered by the apex court in the case of Navinchandra N. Majithia Vs. State of Maharasthra and others reported in (2000) 7 SCC 640, a judgment delivered by the Delhi High Court in the case of Sumedha Nagpal Vs. State of Delhi and others reported in 2000 SCC Online Delhi 14, a judgment delivered by the apex court in the case of Dr (Mrs) Veena Kapoor Vs. Shri Varinder Kumar Kapoor reported in (1981) 3 SCC 92 and lastly upon a judgment delivered by Madras High Court in the case of Sabiha Begum Vs. Commissioner of Police and others reported in 2019 SCC online Mad 569. He has also argued before this court that the 5 WP No.2991/2019 decree of divorce was passed based upon an application preferred u/s 13-B of the Hindu Marriage Act and in the application which was preferred u/s 13-B of the Hindu Marriage Act it was stated by the husband and wife both in paragraph-3 that the child will remain with the Father. Various photos have also been filed to establish before this court that child is living happily with the father. Some admission form in respect of S.N. Academy is also on record to establish that the child was admitted in a school on 21-07-2017. Fee receipt is also on record and it has been argued that the child is being looked after properly by the father. Certain medical certificates were also on record to reflect that the child is being given proper medical treatment also. It has not been disputed by Shri Jain that a remarriage of respondent No.1 has taken place on 10-02-2018 and there is a child born out of the second marriage also. A prayer has been made for dismissal of the writ petition.
07. Heard learned counsel for the parties at length and perused the record. The matter is being disposed off with a consent of both the parties at an admission stage, itself.
08. This court is dealing with a child of tender age, whose date of birth is 25-02-2015. This court has interacted with the child and has done deliberation with the child in order to ascertain the wish of the child. Initially, when the child was brought to the Court Room by the father he was quite reluctant to go with the mother as since October, 2018 the child was in custody of the father. This court permitted the child and mother to spent some time together and after some time when this court interacted 6 WP No.2991/2019 with the child inside the Chamber the child was happily playing with the mother and later on the child went to sleep in the lap of the mother. The behavior of the child which was shown in first instance was not all in existence. By seeing the demeanor of the child after he has spent sometime with the mother, this court can safely give an opinion that the child was very happy after meeting his mother and after spending some time with the mother. This court has also interacted with the child inside the Chamber, though he is a minor child, but he has expressed his willingness to go with the mother. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as under :-
"Section 6 in The Hindu Minority and Guardianship Act, 1956
6. Natural guardians of a Hindu minor.--The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expression "father" and "mother" do not include a step-father and a step-mother."
09. The aforesaid statutory provision of law provides that in case of a male Hindu child the custody shall be with the mother ordinary upto the age of five years. The child in the present case is certainly of four years. A very important ground has been 7 WP No.2991/2019 raised by Sr. Counsel Shri Jain, who is assisted by Kushargra Jain regarding territorial jurisdiction. Undisptued facts of the case reveal that the marriage was solemnized between the parties on 24-02-2014. Child was born on 25-02-2015 and both husband and wife applied for divorce with mutual consent at Indore. The mother is residing at Indore and the parents of the mother are residing at Katni. When the child was at Katni in the month of October, 2018 the respondent No.1 took away the child forcibly as alleged. The petitioner along with the child went to Katni for ten days for 'Dusshera' Holidays. When the child, the petitioner (mother) and parents of the petitioner were at Katni, the respondent No.1 came down to Katni and took away the child by allegedly playing a fraud saying that child will be returned back. However, he never brought the child back to Katni.
10. The mother is undisputedly residing at Indore. Learned Sr. Counsel Mr Sunil Jain has placed a heavy reliance upon a judgment delivered by the apex court in the case of Navinchandra N. Majithia Vs. State of Maharasthra (supra). Paragraphs 17 and 18 of the aforesaid judgment reads as under :-
"17. From the provision in Clause (2) of Article 226 it is clear that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
18. In legal parlance the expression 'cause of action' is generally understood to mean a situation or stale of facts that entitles a party to maintain an action in a Court or a Tribunal, a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles ...one person to obtain a remedy in 8 WP No.2991/2019 Court from another person (Black's Law Dictionary)."
11. The aforesaid case was a case wherein the issue of territorial jurisdiction has been considered by the apex court. The issue involved in the aforesaid case was in respect of a complaint filed at Shillong and in respect of complaint filed at Shillong, a petition for quashment of complaint was preferred before the Bombay High Court. The Bombay High Court has dismissed the writ petition and the matter has travelled upto the apex court and in those circumstances the Hon'ble apex court has held that the Bombay High Court has erred in dismissing the writ petition on the ground that it had no jurisdiction to quash the complaint at Shillong. The apex court has dealt with various aspects and the maintainability of the writ petition keeping in view Article 226 of the Constitution of India.
12. In the considered opinion of this court as the mother is residing at Indore, the divorce has taken place between the parties at Indore, the statement was given by the father at Indore before the Family Court during the pendency of divorce proceedings permitting the mother to keep the child, the judgment relied upon is not at all applicable in the peculiar facts and circumstances of the present case.
13. Other judgment over which reliance has been placed upon is a case decided by Delhi High Court in the case of Sumedha Nagpal Vs. State of Delhi (supra). The judgment delivered by the learned Single Judge of Delhi High Court is not at all binding upon us. Otherwise also, the facts reveal that a petition for Habeas Corpus was filed before the Delhi High Court and it 9 WP No.2991/2019 was brought to the notice of the Delhi High Court that one of the party has already approached the authorities at Bahadurgarh i.e Gaziabad and in those circumstances the Delhi High Court has granted a liberty to the petitioner therein to approach the appropriate court for rederessal of the grievance, whereas no such contingency is involved in the present case.
14. Learned counsel has also placed reliance upon a judgment delivered by the Madras High Court in the case of Sabiha Begum Vs. Commissioner of Police (supra). Paragraphs 14, 15, 17 and 19 of the aforesaid judgment reads as under :-
"14. The decisions relied on by the learned counsel appearing for the petitioner also lay down the proposition that "wishes of the child of any age may be considered under all the circumstance, but the weight given to those wishes must be dominated by what is best for the welfare of the children and it depends upon the age of the children and the attendant circumstances.
15. Similar view has been taken by the Hon'ble Supreme Court in the decision in Prateek Gupta v. Shilpi Gupta and Others [(2018) 2 SCC 309], which observed that irrespective of summary or elaborate enquiry to be undertaken by High Court, welfare of child must prevail as foremost overriding consideration. In the very same decision in paragraph No.38, it was observed that the appellant, namely Prateek Gupta, being the biological father of Aadvik, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Courts jurisdiction to issue a writ in the nature of habeas corpus.
17. In the considered opinion of the Court, the grounds raised and the points urged by the respective learned counsel appearing for the parties revolve around adjudication of disputed question of fact and it require necessary averments supported by oral and documentary evidence and this Court, in exercise of it's jurisdiction under Article 226 of the Constitution of India, may not able to do that exercise.
19. It is not in dispute that the petitioner is the biological mother of the detenus and being a parent, she is expected to have anxiety to have the custody of her children. It is also brought to the notice of this Court that when this Habeas Corpus Petition was listed before the earlier Division Bench [Hon'ble Mr.Justice 10 WP No.2991/2019 C.T.Selvam, as the Hon'ble Judge then was and Hon'ble Mr.Justice M.Nirmal Kumar], the children were produced before them by the fourth respondent and they were enquired into and they expressed their disinclination to go with the petitioner. However, it is to be pointed out that it may not be the criteria to decide the issue relating to the custody of the children, as it can be done only through appropriate proceedings as to the Guardianship of the children before the competent civil forum."
15. Undisputedly, the welfare of the child is of a paramount importance. There can be no second opinion about it. This court is dealing with a case where the mother is looking after the child. She is receiving maintenance from the father of the child. The father has entered into a second marriage and the father is blessed with a child from the second wife. Keeping in view the behavior of the child which he has expressed before us, this court is of the opinion that the child is certainly in safe custody of the mother and, therefore, the judgment relied upon is again of no help to the petitioner.
16. The parties before this court have undoubtedly obtained a decree of divorce on mutual consent. The statement of the husband namely, Mr Subodh Gautam finds place on record. It was stated by the husband in open court before the Principal Judge Family Court, Indore that the son, who was at the relevant point of time two years and four months old shall be residing with the mother. The statement of the father Subodh Gautam is quoted as under :-
"uke % lqcks/k firk Lo- Jh jkedqekj xkSre O;olk; % ukSdjh irk % xzke xqyckjk ftyk dVuh e-iz- gky fuoklh & dYih fMfLVªDV tkyksu m-iz-
'kiFk ij dFku 01- esjk fookg izkFkhZ dz- 1 jks'kuh ls fnukad dks fgUnw jhfr fjokt vuqlkj xzke xqyckjk ftyk dVuh e/;izns'k esa fnukad 24@2@2014 dks 11 WP No.2991/2019 lEiUu gqvk FkkA bl fookg ls gesa ,d iq= leFkZ mez djhc lok nks lky dk gksdj iq= izkFkhZ dze0 1 ds lkFk gh fuokl djsxkA 02- fookg ds dqN le; i'pkr ls gh gekjs chp xaHkhj oSpkfjd erHksn gks x;s FksA ifjokj vkSj lekt ds le>kbZ'k ds ckn Hkh gekjs erHksn nwj ugh gq,A ge nksuksa djhc nks lky ls i`Fkd&i`Fkd fuokl dj jgs gSA vyx jgus ds i'pkr ls gekjs chp fdlh izdkj ds nkEiR; laca/k LFkkfir ugh gq,A gekjk ,d lkFk ifr iRuh ds :i esa jguk drbZ laHko ugh gSA 03- U;k;ky; }kjk N% ekg dh vof/k iqufoZpkj ds fy, nh x;h Fkh ijUrq ge nksuksa dk ifr iRuh ds :i esa lkFk jguk drbZ lEHko ugh gS D;ksfa d 'kknh e`rizk; gks x;h gS vr% geus fookg foPNsn ysuk r; fd;k gSA vr% ge fookg foPNsn gsrq nh x;h viuh lgefr ij dk;e gS vkSj fookg foPNsn pkgrs gSA ge mHk; i{k esa nwjfHklaf/k ugh gSA 04- le>kSrk vuqlkj izkFkhZ dzekad 1 dks mlds o iq= ds Hkj.k iks"k.k gsrq dqy chl gtkj :i;s izfrekg nsuk r; gqvk gSA vkt fnukad dks gekjs e/; vc dqN Hkh ysuk&nsuk 'ks"k ugh gSA ysu nsu dk iwjk fooj.k ;kfpdk esa of.kZr gS og eq>s Lohdkj gSA gekjk ifr&iRuh ds :i esa lkFk jguk dnkfi lEHko ugh gSA vr% lgefr ds vk/kkj ij fookg foPNsn dk vkns'k ikfjr fd;s tkus dk vuqjks/k gSA 05- fookg dh if=dk dh izih@1 gSA fookg dk QksVks izih@2 gSA esjs fuokl gsrq esjk fdjk;k vuqca/k i= dh izfrfyfi izih@3 gSA esjk ifjp; i= izih@5 o Nk;k izfr izih@5 lh gSA izfrijh{k.k dqN ughaA okfpr] lgh gksuk Lohdkjh fd;kA esjs cksyus ij Vafdr fd;k x;kA ¼Jherh lqjfHk feJk½ ¼Jherh lqjfHk feJk½ iz/kku U;k;k/kh'k iz/kku U;k;k/kh'k dqVqEc U;k;ky; bUnkSj dqVqEc U;k;ky; bUnkSj
17. Similarly, the mother while giving the statement before the Principal Judge Family Court, Indore has categorically stated that she is ready for divorce with a mutual consent and shall be keeping the child with her. The statement of the mother Roshini is also reproduced as under :-
"uke % jks'kuh ifr lqcks/k xkSre O;olk; % v/;;u irk % 288] lk/kq oklokuh uxj xkMZu ds ikl bUnkSj 'kiFk ij dFku 01- esjk fookg izkFkhZ dz- 2 lqcks/k ls fnukad dks fgUnw jhfr fjokt vuqlkj xzke xqyckjk ftyk dVuh e/;izns'k esa fnukad 24@2@2014 dks lEiUu gqvk FkkA bl fookg ls gesa ,d iq= leFkZ mez djhc lok nks lky dk gksdj iq= esjs lkFk gh fuokl djsxkA 12 WP No.2991/2019 02- fookg ds dqN le; i'pkr ls gh gekjs chp xaHkhj oSpkfjd erHksn gks x;s FksA ifjokj vkSj lekt ds le>kbZ'k ds ckn Hkh gekjs erHksn nwj ugh gq,A ge nksuksa djhc nks lky ls i`Fkd&i`Fkd fuokl dj jgs gSA vyx jgus ds i'pkr ls gekjs chp fdlh izdkj ds nkEiR; lac/a k LFkkfir ugh gq,A gekjk ,d lkFk ifr iRuh ds :i esa jguk drbZ laHko ugh gSA 03- U;k;ky; }kjk N% ekg dh vof/k iqufoZpkj ds fy, nh x;h Fkh ijUrq ge nksuksa dk ifr iRuh ds :i esa lkFk jguk drbZ lEHko ugh gS D;ksafd 'kknh e`rizk; gks x;h gS vr% geus fookg foPNsn ysuk r; fd;k gSA vr% ge fookg foPNsn gsrq nh x;h viuh lgefr ij dk;e gS vkSj fookg foPNsn pkgrs gSA ge mHk; i{k esa nwjfHklaf/k ugh gSA 04- le>kSrk vuqlkj izkFkhZ dzekad 2 ls esjs o iq= ds Hkj.k iks"k.k gsrq dqy chl gtkj :i;s izfrekg nsuk r; gqvk gSA vkt fnukad dks gekjs e/; vc dqN Hkh ysuk&nsuk 'ks"k ugh gSA ysu nsu dk iwjk fooj.k ;kfpdk esa of.kZr gS og eq>s Lohdkj gSA gekjk ifr&iRuh ds :i esa lkFk jguk dnkfi lEHko ugh gSA vr% lgefr ds vk/kkj ij fookg foPNsn dk vkns'k ikfjr fd;s tkus dk vuqjks/k gSA 05- fookg dh if=dk dh izih@1 gSA fookg dk QksVks izih@2 gSA esjs fuokl gsrq esjk fdjk;k vuqca/k i= dh izfrfyfi izih@3 gSA esjk ifjp; i= izih@4 o Nk;k izfr izih@4 lh gSA izfrijh{k.k dqN ughaA okfpr] lgh gksuk Lohdkjh fd;k esjs cksyus ij Vafdr fd;k x;kA ¼Jherh lqjfHk feJk½ ¼Jherh lqjfHk feJk½ iz/kku U;k;k/kh'k iz/kku U;k;k/kh'k dqVqEc U;k;ky; bUnkSj dqVqEc U;k;ky; bUnkSj
18. Meaning thereby, before the Family Court both the husband and wife have agreed that the child Samarth in question shall be residing with the mother only and in those circumstances after taking into account the statement of father and the mother, the child was handed over to the mother at the time of divorce. Keeping in view the fact that the child shall be residing with the mother, maintenance of Rs. 20,000/- per month has been awarded by the Family Court and, therefore, keeping in view the totality of the facts and circumstances of the case, this court is of the opinion that the child has to be given to the mother.
19. The apex court in the case of Capt, Dushyant Somal Vs. Sushma Somal and another reported in (1981) 2 SCC 277 has 13 WP No.2991/2019 dealt with the jurisdictional aspect under article 226 of Habeas Corpus writ petition in respect of illegal custody of Child. Paragraphs 3, 5 and 7 of the aforesaid judgment reads as under :-
"3. There can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grand-mother of the child was not subjected to any cross-examination; the appellant-petitioner did not choose to go into the witness box; he did not choose to examine any witness on his behalf. The evidence of the grand-mother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grand-mother. The High Court was quite right in coming to the conclusion that he appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The Writ, of Habeas Corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward.
5. It was submitted that the appellant-petitioner did not give evidence, he did not examine any witness on his behalf and he did not cross-examine his wife and mother-in-law because, he would be disclosing his defence in the criminal case, if he so did. He could not be compelled to disclose his defence in the criminal case in that manner as that would offend against the fundamental right guaranteed by Article 20(3) of the Constitution. It was suggested that the entire question whether the appellant-petitioner had unlawfully removed the child from the custody of the mother could be exhaustively enquired into in the criminal case where he was facing the charge of kidnapping. It was argued that on that 14 WP No.2991/2019 ground alone the writ petition should have been dismissed, the submission is entirely misconceived. In answer to the rule nisi, all that he was required to do was to produce the child in Courts if the child was in his custody. If after producing the child, he wanted to retain the custody of the child, he would have to satisfy the Court that the child was lawfully in his custody. There was no question at all of compelling the appellant-petitioner to be a witness against himself. He was free to examine himself as a witness or not. If he examined himself he could still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He was also free to examine or not other witnesses on his behalf and to cross examine or not, witnesses examined by the opposite party. Protection against testimonial compulsion" did not convert the position of a person accused of an offence into a position of privilege, with, immunity from any other action contemplated by law. A. criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Article 20(3) guaranteed was that a person accused of an offence Shall not be compelled to be a witness against himself, nothing less and, certain nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceeding to refuse to examine himself or anyone else as a witness on his side and to cross examine the witnesses for the opposite party on the ground of testimonial compulsion and then to contend that no relief should be given to. the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Article 20(3) comes into the picture at all.
7. It was argued that the wife had alternate remedies under the Guardian and Wards Act and the CrPC and so a Writ should not have been issued. True, alternate remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurdle. Where what is complained of is an impudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ shall issue,. In regard to the sentence, instead of the sentence imposed by the High Court, we substitute a sentence of three months, simple imprisonment and a fine of Rupees Five hundred. The sentence of imprisonment or such part of it as may not have been served will stand remitted on the appellant-petitioner producing the child in the High Court. With this modification in the matter of sentence, the appeal and the Special Leave Petition are dismissed. Criminal Miscellaneous Petition No. 677/81 is dismissed as we are not satisfied that it is a fit case for laying a complaint. "
20. In light of the aforesaid judgment, this court is of the opinion that a writ petition for issuance of a writ in nature of 15 WP No.2991/2019 Habeas Corpus under article 226 of the Constitution of India in the peculiar facts and circumstances of the case is certainly maintainable. Otherwise also, keeping in view the welfare of the child and other factors including interaction with the child, this court is of the opinion that the child has to be in the custody of mother and it is ordered, accordingly.
21. The Chief of High Court Security is directed to escort the petitioner as well as the child to their house and the Superintendent of Police, Indore shall provide proper safety/security for the time being to the lady, in case she so desires. Mr R.S. Chhabra, Additional Advocate General has fairly stated before this court that all possible security shall be provided to the lady as and when she desires. The respondent No.1 shall certainly be free to take recourse to the remedy available under the Guardian and Wards Act, 1890/Hindu Minority and Guardianship Act, 1956/under the law. The observations made by this court are confined only to the extent the writ of Habeas Corpus is concerned and in case any other remedy is availed under the law, the matter shall be decided on merits, without being influenced by the order passed by this court.
Certified copy as per rules.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
Rashmi
Digitally signed by Rashmi Prasahant
Date: 2019.03.08 15:27:35 +05'30'