Chattisgarh High Court
Smt. Khushbu Jethi vs State Of Chhattisgarh on 7 April, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 03.03.2022
Order Passed on 07.04.2022
WPHC No. 19 of 2021
Smt. Khushbu Jethi, W/o Nishir Jethi, aged about 31 Years,
Resident of Shrinagar Shivanand Nagar, Near Gokul Vihar
Khamtarai, District Raipur, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through Secretary, Women and Child
Development Department Government of Chhattisgarh, Mahanadi
Bhawan Naya Raipur, Tahsil and District Raipur, Chhattisgarh.
2. Inspector General of Police Raipur, District Raipur, Chhattisgarh.
3. Senior Superintendent of Police Raipur, District Raipur,
Chhattisgarh.
4. Station House Officer Police Station Khamtarai, District Raipur,
Chhattisgarh.
5. Nishir Jethi Bhavesh, Son of Bhavesh Jethi, Resident of Anurag,
Residency, F Wing 302, Gondwana Police Station Khamtarai,
District Raipur, Chhattisgarh, Parental Address B 303, Tara Aatma
Apartment, Darbargarh, Post Office Bhuj Kutch, Gujrat.
6. Kumari Dhani Jethi, aged about 6 Years, Through Legal Gurdian
Nishir Jethi, Resident of Shrinagar Shivanand Nagar, Near Gokul
Vihar Khamtrai, District Raipur, Chhattisgarh.
---- Respondents
(Cause-title taken from Case Information System) For Petitioner Shri K.N. Nande, Advocate.
For Respondent Nos. 1 to 4 Shri H.S. Ahluwalia, Deputy A.G. For Respondent Nos. 5 & 6 Shri Kshitij Sharma, Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Gautam Chourdiya, Judge CAV Order Per Gautam Chourdiya, Judge 2
1. Heard on admission.
2. With the consent of the parties, the matter is heard finally.
3. The petitioner has filed this writ petition under Article 226 of the Constitution of India for issuance of writ of habeas corpus against the respondents for producing her minor daughter/respondent No.6- Kumari Dhani Jethi before the Court who is illegally detained by respondent No.5 and for giving her custody to the petitioner.
4. Brief facts of this case are that the marriage of the petitioner with respondent No.5 Nishir Jethi Bhavesh was solemnized in the year 2011 and through their wedlock, respondent No.6 Kumari Dhani Jethi, presently aged about six years, was born. Due to some dispute with respondent No.5, petitioner was living separately from respondent No.5. It is alleged by the petitioner that she was compelled to sign the divorce deed before the Registrar of Stamps and one agreement was executed before the Sub-Registrar Office, Raipur SR-3 on 17.12.2020 between the petitioner and respondent No.5 whereby mutual divorce took place between the parties on certain conditions mentioned therein.
5. According to the petitioner, respondent No.6 was living with the petitioner since 12.07.2021. However, respondent No.5 forcibly took away respondent No.6 on 27.10.2021 against her will. Though, the petitioner made complaint about illegal act of respondent No.5 to the police authorities but no action was taken thereon and, therefore, she has filed the instant petition for issuance of writ of habeas corpus.
6. Learned counsel for the petitioner submits that the petitioner is the natural guardian of the minor daughter/respondent No.6, she was 3 compelled and forced by respondent No.5 to execute the divorce deed and thereafter he forcibly took away respondent No.6 from her custody. Though, she made complaint regarding the act of respondent No.5 illegally detaining respondent No.6 to the police authorities but no action was taken by them on her complaint. Therefore, in the facts and circumstances of the case, respondents No. 1 to 4 be directed to produce the minor daughter/respondent No.6 before this Court who has been illegally detained by respondent No.5 and her custody be handed over to the petitioner.
7. Learned counsel for respondent Nos. 1 to 4, reiterating the averments made in reply to the writ petition, submitted that as per mutual agreement between the parties on 17.12.2020, respondent No.5 and petitioner are living separately and as per the conditions agreed upon, respondent No.6 is residing with her father i.e. respondent No.5 and therefore, in view of specific conditions in the agreement between the parties, the petitioner cannot seek custody of respondent No.6 from her natural guardian i.e. father/respondent No.5, and this habeas corpus petition is liable to be dismissed for being not maintainable.
8. Learned counsel for respondent No.5 in his reply to the writ petition as also in his oral submission contended that an application under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') was also filed by respondent No.5 against the petitioner for restitution of conjugal rights and as per the judgment dated 04.01.2020, the said application was allowed in favour of respondent No.5 and the petitioner was directed to live with respondent No.5 and discharge her marital obligations. However, the petitioner did not comply with the 4 said order. It is also submitted that mutual agreement deed was executed by the parties willfully, without any force or fear, which contains certain conditions regarding custody of their children as also the visiting rights of the parties with their children. The fact regarding execution of divorce deed on 17.12.2020 is also mentioned by the petitioner in her previous communication with various authorities. Respondent No.6 is happily living with respondent No.5 who is taking all possible care for her education as well as mental and physical well- being. Therefore, looking to the entire conduct of the petitioner, in particular, the terms and conditions of the mutual divorce deed (Annexure P-4), the writ petition is not maintainable and liable to be dismissed as such.
9. Heard learned counsel for the parties.
10. It is not disputed by both the parties that the marriage of petitioner with respondent No.5 was solemnized in the year 2011 and that they were blessed with a daughter, i.e. respondent No.6. As per document of Annexure P-4 i.e. a divorce deed with mutual consent was executed by respondent No.5 and petitioner and it was registered before the Sub-Registrar. In her complaint dated 14.07.2021 to Senior Superintendent of Police, Raipur, the petitioner in para 3 stated that being fed up with the conduct of respondent No.5 and his ill-treatment, she started living separately at her parental house with her daughter/respondent No.6, she has no relation with her husband/respondent No.5 for the last five years and, therefore, they executed a divorce deed in the year 2020 in the Office of Registrar, Marriage Registration, Raipur. However, in her entire complaint, the 5 petitioner has nowhere stated that the said divorce deed was executed by her under pressure or compulsion. Further, in her complaints to the Women Commission, the Superintendent of Police and the Inspector General of Police, Raipur (Annexure P-6) also the petitioner has nowhere mentioned that the divorce deed executed by her on 17.12.2020 was under any compulsion or force or fear. She has only stated that the divorce has not taken place between the parties as per law and that the divorce deed executed by the parties in the Office of Registrar has no legal sanctity.
11. In the matter of Sumedha Nagpal vs State of Delhi and others reported in (2000) 9 SCC 745, the Hon'ble Supreme Court, while dismissing a petition seeking issuance of writ of habeas corpus filed by the mother for custody of child, observed in paras 2, 3 & 5 as follows:-
"2.Both parties do recognise that the question of custody of the child will have to be ultimately decided in proceedings arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act and while deciding such a question, welfare of the minor child is of primary consideration. Allegations and counter allegations have been made in this case by the Petitioner and Respondent No.2 against each other narrating circumstances as to how the estrangement took place and how each one of them is entitled to the custody of the child. Since these are disputed facts, unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as writ petition under Article 32 of the Constitution.
3. Without expressing any view on the pleadings raised in this case and making it clear that it is neither appropriate nor feasible in the present case to investigate the correctness of 6 the same and decide one way or the other, we propose to relegate the parties to work out their respective rights in an appropriate forum like the Family Court or the District Court in a proceeding arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act or for matrimonial relief.
5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned Counsel for the Petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever, we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the Petitioner, we should not be understood as having held a petition would lie under Article 32 for grant of custody of minor child; we refrain from examining or deciding the same.
12. Considering the facts and circumstances of the case, namely, the petitioner has been living separately from respondent No.5 for the last five years; nothing is shown by the petitioner that due to custody of respondent No.6 being with respondent No.5, her welfare is in jeopardy; respondent No.5 is the legal guardian/father of respondent 7 No.6, and the terms and conditions of document of Annexure A-4 i.e. divorce deed with mutual consent executed by the parties on 17.12.2020 whereby custody of respondent No.6 was given to respondent No.5, as well as keeping in view the judgment of the Hon'ble Supreme Court in Sumedha Nagpal (supra), we are of the opinion that present is not a case which requires issuance of writ of habeas corpus for production of respondent No.6 before the Court.
13. Accordingly, the instant writ petition being without any substance is hereby dismissed at the admission stage itself.
14. The petitioner, however, is at liberty to avail remedy available under the law for redressal of her grievances, if any. It is also made clear that we have neither expressed any opinion on the rights of the parties nor any final opinion on merits.
Sd/- Sd/-
(Arup Kumar Goswami) (Gautam Chourdiya)
Chief Justice Judge
Akhilesh