Habeas corpus petition seeking custody of wife and minor daughter dismissed. Court held such writ is not maintainable when divorce proceedings under Hindu Marriage Act are pending; custody claims to be moved within such pending divorce proceedings.
Writ petition dismissed; custody claim to be moved in pending divorce proceedings.
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Court No. - 84 Case :- HABEAS CORPUS WRIT PETITION No. - 643 of 2019 Petitioner :- Ponsi And 2 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Parvesh Kumar Pandey,Shre Ram,Servesh Pandey A/S 2703/14 Counsel for Respondent :- G.A.,Indra Kumar Chaturvedi(Senior Adv.),Manvendra Singh,Ram Milan Dwivedi,Anand Pandey
Hon'ble Dr. Yogendra Kumar Srivastava,J.
Heard Sri I.K.Chaturvedi, learned Senior Counsel assisted by Sri Sarvesh Kumar Pandey, learned counsel for the petitioner nos. 1 and 2, Sri Parvesh Kumar Pandey, learned counsel for the petitioner no. 3, Sri Sanjay Sharma, learned A.G.A. appearing for the State respondents and Sri Anand Pandey, who has put in appearance on behalf of the respondent nos. 4 to 6.
The present petition has been filed on behalf of the petitioner no. 1 (wife), the petitioner no. 2 (minor child) and the petitioner no. 3.
The present petition, which is supported by an affidavit of the petitioner no. 3 (husband), has been filed seeking custody of the petitioner no. 1 (his wife) and petitioner no. 2 (his minor daughter). It is not disputed that the petitioner nos. 1 and 2 are living separately from the petitioner no. 3 and a divorce petition under Section 13 of the Hindu Marriage Act, 1955 has been filed by the petitioner no. 1 which is pending.
The petitioner no. 1 (wife) having already initiated proceedings for divorce, no relief in respect of the said petitioner can be sought in the present proceedings. In case the petitioner no. 3 seeks to raise any claim with regard to the custody of his minor child i.e. the petitioner no. 2, he may move an appropriate application in the pending divorce proceedings.
A writ petition in the nature of habeas corpus would not be entertainable for the said purpose, in the facts of the present case.
Accordingly, the writ petition stands dismissed.
Order Date :- 5.1.2021 Pratima
(Dr.Y.K.Srivastava,J.)
3 issues framed by the court
Whether a writ petition in the nature of habeas corpus is maintainable for seeking custody of a wife and minor daughter when a divorce petition under Section 13 of the Hindu Marriage Act, 1955 is pend
Whether relief should be granted to a husband seeking custody of his wife and minor daughter in the same petition when the wife has already filed for divorce.
Whether a habeas corpus petition should be dismissed when the petitioner seeks custody in a divorce context rather than a criminal detention context.
Ponsi and 2 Others
State Of U.P. and 7 Others
Yogendra Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
