Allowed

Janni W/O Sarup D/O Mehboob Khan v. State of Rajasthan

Rajasthan HC16 Feb 2022HC/8/2022

Case brief

AI extract

What is this about?

High Court allowed habeas corpus petition seeking custody of two children forcibly taken by the petitioner's husband. Court directed respondent to hand over custody to the mother and allow police escort, while granting the father limited visitation rights for three months.

What did the court decide?

Custody directed to be handed over to the petitioner; police to escort her with children; father granted visitation rights for three months.

Janni W/O Sarup D/O Mehboob Khan Vs State… — Child Custody and Guardianship | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Habeas Corpus Petition No. 8/2022

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Janni W/o Sarup D/o Mehboob Khan, Aged About 25 Years, R/o Pata, Police Station Nauganva, District Alwar (Raj.)

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Department Of Home, Govt. Of Rajasthan, Secretariat, Jaipur.

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The Director General Of Police, Police Head Quarter, Lal Kothi, Jaipur (Raj.)

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The Additional Director General Of Police, Anti Human Trafficking Unit, Jaipur (Raj.)

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The Superintendent Of Police, Bharatpur (Raj.)

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The Station House Officer, Police Station Kaman, District Bharatpur (Raj.)

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Sarup S/o Ali Mohammad, R/o Village And Post Satbadi, Tehsil Kaman, Police Station Pahadi, District Bharatpur (Raj.)

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----Respondents For Petitioner(s) : Mr. Mohd. Shakir Khan with Mr. Ajay Kumar Jain For Respondent No.6 : Mr. Manish Parihar For State : Mr. G.S. Rathore, GA cum AAG Mr. Bachu Singh, S.I. (Police StationNogawa, Alwar)

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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16/02/2022

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Petitioner has preferred this Habeas Corpus Petition seeking protection of corpus who happens to be her sons.

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It is contended by counsel for the petitioner that respondent No.6 forcefully took away the children, for which an

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(2 of 5)

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[HC-8/2022]

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FIR was lodged by the petitioner at police station-Nogawa, District Alwar on 14.10.2020. It is contended that one of the child was aged one and a half years and the other was aged four years when they were forcefully kept by the respondent No.6. It is also contended that as per the Guardians and Wards Act, petitioner being mother has the first right to have the custody of the children and the children are in illegal custody of respondent No.6.

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Counsel for the respondent No.6 has vehemently opposed the habeas corpus petition. It is contended that father is the natural guardian and the custody cannot be said to be illegal custody, so as to exercise the habeas corpus jurisdiction. It is also contended that petitioner earlier filed an application under the Guardians and Wards Act, wherein an application under Order 7 Rule 11 CPC was filed by the respondent No.6 and petitioner withdrew that application. It is contended that the custody is not illegal and the petitioner has a right to approach the Court below for custody of the child.

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Counsel for the respondent No.6 has placed reliance on “Nithya Anand Raghavan Vs. State of NCT of Delhi and Ors. AIR 2017 SC 3137” and “Tejaswani Gaud and Ors. Vs. Shekhar Jagdish Prasad Tewari and Ors. AIR 2019 SC 2318” .

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Our attention is drawn towards Para-19 of the Tejaswani Gaud and Ors. (Supra), wherein it was observed by the Apex Court that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction.

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(3 of 5)

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[HC-8/2022]

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There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas

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corpus.

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Our attentions has also drawn towards Para No.30 of the judgement of Nithya Anand Raghavan (supra) which reads as

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under:-

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“In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child”.

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It is argued that since the corpus are in custody of the father who happens to be natural guardian, a habeas corpus petition is not maintainable and petitioner should be directed to approach the concerned court for custody of the child.

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(4 of 5)

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[HC-8/2022]

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We have considered the contentions and have carefully perused the judgements cited at bar by counsel for respondent No.6.

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Nithya Anand Raghavan (Supra) was a case where the minor daughter was removed by the mother from the custody of the father. High Court directed the mother to produce her daughter. The appellant assailed that order before the Apex Court. The Apex Court held that it would be in the interests of the minor to remain in custody of her mother as she would be exposed to harm if separated from the mother. Judgment of the High Court was set aside by the Apex Court.

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In Tejaswani Gaud and ors. (Supra), the Apex Court held that ordinary remedy lies only under the Hindu Minority and Guardianship Act. However, in exceptional cases, the rights of the parties to the custody of the minor can be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. The Apex Court was also alive of the fact that handing over the custody of the child to the mother when the child is with the father for four months would initially cause some problem but that will be neutralized with the passage of time.

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Tejaswani Gaud and ors. (Supra) was a case where the father became sick and the custody of the child was with maternal uncle and aunt. The father in this case claimed the custody of the child. The Apex Court held that the father is the natural guardian and directed to hand over the custody of the child to the father even the child was one and a half years old.

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In the present case both children were below five years of age when they were retained by respondent No.6. According to our considered view, this is an exceptional case where children

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(5 of 5)

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[HC-8/2022]

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has been deprived of their mother forcefully by the father, for which an FIR was also lodged by the mother. We are thus, of the considered view that the habeas corpus jurisdiction should be exercised.

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We therefore, allow the present habeas corpus petition and direct that the custody of the children be handed over to the petitioner. We also direct the police authorities to escort the petitioner with children to her home.

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However, taking note of the fact that children have been with the father for last more than one and a half years, we deem it proper to given him visitation rights. Respondent No.6 would have access to the child initially for a period of three months once in a week at the residence of the petitioner between 12.00 to 03.00 pm.

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(ANOOP KUMAR DHAND),J

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(PANKAJ BHANDARI),J

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CHANDAN /1

Janni W/O Sarup D/O Mehboob Khan v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Janni W/O Sarup D/O Mehboob Khan v. State of Rajasthan

Case brief

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What did the court decide?

What the court decided

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