HABC/26/2020 of VINEET BAHUGUNA Vs NEHA GOEL on 31 December 2021

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

The petitioner has filed the instant habeas corpus petition commanding the police officer to search the corpus of his daughter and produce her before this Court.

2. The respondent no.1 is wife of the petitioner. She is being represented.

3. Heard learned counsel for the parties and perused the record.

4. When this matter was taken up on 01.04.2021, it was brought to the notice of the Court that the petitioner had already moved an application before the Principal Judge, Family Court, Dehradun for taking custody of his minor daughter, the corpus in the instant petition. This Court on that date directed the concerned court to decide such application within a period of one month. The following order was passed:- “It is submitted by the learned counsel for the petitioner that the petitioner has already moved an application before the Principal Judge, Family Court, Dehradun for taking custody of the minor girl. It is further submitted that in spite of Court’s order, the learned Family Judge did not pass any final order.

Since, the petitioner has already sought the remedy by filing an application before the Principal Judge, Family Court, Dehradun for the custody of the minor girl, thus, the Principal Judge, Family Court, Dehradun is directed to decide the matter qua custody of minor girl as early as possible, preferably within a period of one month from the date of receipt of the certified copy of this order.

List this matter after one month.

Let a certified copy of this order be supplied to the learned counsel for the accused within 24 hours as per rules.”

5. Today, learned counsel for the respondent no.1, wife would submit that, in fact, pursuant to the order dated 01.04.2021, the application for seeking custody of the daughter of petitioner has already been decided by the court of Additional Judge, Family Court, Dehradun on 29.04.2021.

6. Learned counsel for the petitioner would submit that in such matters, where the custody is an issue, a habeas corpus petition is maintainable. He would place reliance upon a principles of law, as laid down in the case of Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. In fact, in the case of Tejaswini Gaud (supra), in para 14, the Court has observed as hereunder:- “14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.”

7. Undoubtedly, in the matters of custody of a minor child, what is paramount is the welfare of a child. In the instant case, on the one hand, the petitioner seeks direction that the police officer may be directed to search the corpus of his daughter. On the other hand, he had already moved an application seeking custody of his daughter from that of his wife. The dispute relating to the custody is already pending in the court of competent jurisdiction and under a statute, an application was filed by the petitioner, which has since been rejected. If petitioner is aggrieved by the decision of the Additional

Judge, Family Court, Dehradun dated 29.04.2021, he may avail remedy as is permissible under the law.

8. Under such circumstances, this Court is of the view that habeas corpus petition cannot be held to be maintainable. Accordingly, the petition deserves to be dismissed.

9. The petition is dismissed.

(Ravindra Maithani, J.)

31.12.2021

Jitendra