Dismissed

Km. Habiba (Minor) v. State of U.P. and 3 Others

Allahabad HC14 Nov 2022SPLAD/527/2022

Case brief

AI extract

What is this about?

This Special Appeal involved a delay condonation application and an appeal against the dismissal of a Habeas Corpus Writ Petition regarding the custody of a minor child born out of wedlock. The High Court condoned the delay and dismissed the appeal, holding that the appropriateness of legal remedy lay in challenging the Family Court order.

What did the court decide?

Delay of 5 days condoned. Special Appeal dismissed. Intra-court Appeal against the Writ Petition dismissal dismissed.

Km. Habiba (Minor) Vs State of U.P. and 3… — Child Custody and Guardianship | Allahabad HC (2022)

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Court No. - 29

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Case :- SPECIAL APPEAL DEFECTIVE No. - 527 of 2022

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Appellant :- Km. Habiba (Minor) Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Santosh Kumar Tripathi,Subodh Tripathi

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Counsel for Respondent :- C.S.C.,Zia Uddin Ahmad

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Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.

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Heard learned counsel for the appellant, learned Standing Counsel for respondent nos. 1 to 3 and Sri Mohd. Sufiyan, learned counsel holding brief of Sri Zia Uddin Ahmad, learned counsel for respondent no. 4.

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(In Re: Delay Condonation Application No. 1 of 2022.)

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By this delay condonation application the appellant has prayed for condonation of 5 days delay in filing the Intra Court Appeal.

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Considering the explanation offered and the short duration of the delay, we deem it appropriate to condone the delay.

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The delay condonation application is allowed.

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The delay in filing the appeal is condoned.

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The office to assign regular number to the appeal.

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(In Re: Appeal)

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This Intra Court Appeal is against the judgement and order of learned Single Judge dated 26.09.2022 by which the Habeas Corpus Writ Petition No. 449 of 2022 of Saddiya Suhani (mother of the corpus Km. Habiba) has been dismissed with liberty to move appropriate application for custody before appropriate Court.

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A perusal of the record would reflect that the corpus Km. Habiba, who is aged 5 years, was born out of wedlock between Saddiya Suhani (the appellant) and Aamir Subhan (the respondent no. 4). The custody of the corpus is currently with her father (the respondent no. 4). The learned Single Judge has dismissed the Habeas Corpus Writ Petition upon finding that on the date when the matter was heard it was brought to Court's

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notice that the Family Court at Ambikapur, Sarguja, State of Chattisgarh had passed an order appointing the respondent no. 4 (Aamir Subhan) as guradian of the corpus and to have custody of the corpus. The learned Single Judge found that as the order of the Family Court was not challenged before it and there was no stay operating against it, the custody of the corpus with the respondent no. 4 can not be held unlawful as to enable the Court to issue a writ of Habeas Corpus. Consequently, the learned Single Judge dismissed the Habeas Corpus Writ petition without prejudice to the right of the petitioner to move appropriate application for custody before appropriate Court.

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The learned counsel for the petitioner submits that the order of the Family Court at Chattisgarh was obtained by suppression of facts. The fourth respondent has suppressed the proceedings initiated by the appellant for production of the corpus and, therefore, the said order would be deemed void. Moreover, the order of the Family Court is an ex-parte order.

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Be that as it may, once there is an order of a competent court having jurisdiction appointing one of the parents of the child as guardian and have his/her custody, the appropriate course would be to apply to the said court or file an appeal before appropriate court, as may be advised. In such circumstances, the learned Single Judge was justified in dismissing the Habeas Corpus Writ Petition with liberty to the petitioner to take recourse to other appropriate legal remedy.

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Subject to above, the appeal is dismissed.

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Order Date :- 14.11.2022 PS

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Digitally signed by POOJA SHARMA Date: 2022.11.17 17:09:50 IST Reason: Location: High Court of Judicature at Allahabad

Km. Habiba (Minor) v. State of U.P. and 3 Others

Case brief

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Km. Habiba (Minor) v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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