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HC: Habeas corpus filed by wife dismissed, she cannot take shortcut and come to HC directly :)

Charmiben vs State on 20 July, 2011
Author: A.L.Dave, Honourable Bankim.N.Mehta,

Gujarat High Court Case Information System

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SCR.A/1822/2011 4/ 4 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

 

 

SPECIAL

CRIMINAL APPLICATION No. 1822 of 2011

=========================================================

 

CHARMIBEN

MANOJBHAI MADHWANI – Applicant(s)

Versus

 

STATE

OF GUJARAT & 2 – Respondent(s)

========================================================= Appearance

:

MR

DP KINARIWALA for Applicant(s) : 1, MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 –

3.

=========================================================

 

CORAM

:

 

HONOURABLE

MR.JUSTICE A.L.DAVE

 

and

 

HONOURABLE

MR.JUSTICE BANKIM.N.MEHTA

 

 

 

Date

: 20/07/2011

 

ORAL

ORDER

 

(Per

: HONOURABLE MR.JUSTICE A.L.DAVE)

This

habeas corpus petition is preferred by mother of minor Bansi and Sagar – her children, who are presently in custody of respondent No.3 – their father. The petitioner was married to respondent No.3 and from the wedlock, she delivered two minor children. Later on, there were disputes between the petitioner and respondent No.3 and therefore, they mutually agreed to have a divorce deed executed as per their custom, that was done on 17.9.2008. One of the terms of the divorce was that custody of minor Bansi and Sagar would remain with present respondent No.3 – father of the children. However, now, the petitioner has approached this Court with this habeas corpus petition apprehending/alleging unlawful detention of the minors and ill treatment being meted out to them.

 

 

2. It

is stated in the petition in para 4.1 of the petition that “it is also relevant to submit before this Hon’ble Court at this stage that in clause 4 of the said deed, it is specifically mentioned that the minor children namely Bansi and Sagar were to be kept with the present petitioner.”

 

 

3. This

is the clause in document dated 12.9.2008, which is not a registered document. Thereafter, the second document was prepared on 17.9.2008, where it was agreed that the minors will be kept with the father – present respondent No.3.

 

 

4. Learned

advocate Mr. Kinariwala submitted that a writ of habeas corpus would be maintainable and while entertaining this writ of habeas corpus, the Court would keep in mind the interest of the minor. Learned advocate Mr. Kinariwala relied on decision in case of Dr. Ashish Ranjan Vs. Dr. Anupama Tandon reported in 2011 AIR SC (Weekly) 249.

 

 

5. In

our view, the petitioner has tried to take a shortcut and has not resorted to a remedy available under relevant law. The dispute regarding custody of minor children between husband and wife cannot be decided in a writ petition, where the Court would be faced with and would be required to adjudicate on various disputed questions of fact. It is alleged in the petition that respondent No.3 has remarried and corpus are being ill treated and physically tortured. It is also alleged that there are circumstance beyond the control of the petitioner which compelled her to forgo custody of corpus at the time of execution of deed of dissolution of marriage. For bringing such issues, parties would be required to lead evidence and therefore, without disputing the fact that the Court, while dealing with such matters, should keep in mind the interest of the minor as the prime consideration. We do not entertain this petition for the reasons stated herein above. A competent civil Court can examine the dispute whether there is any risk to children, whether they are ill treated, whether they are confined etc. Even, there is no averment in the petition about the children being illegally confined or detained. Respondent No.3 is a natural guardian and the petitioner had, while taking divorce, agreed that the custody of minor would remain with respondent No.3 – father of the children and therefore, we refuse to exercise our extraordinary jurisdiction in given set of circumstances.

 

 

 

6. So

far as the decision relied on by learned advocate Mr. Kinariwala is concerned, learned advocate’s emphasize was on the fact that technicalities cannot prevent a Court from exercising its powers. Learned advocate submitted that even in a case where parties have agreed to a question of custody of minors, the Court may exercise its jurisdiction and may order to the contrary. We have examined the said judgment and we found that the observations were made by the Apex Court in respect of the powers enjoyed by the Apex Court under Article 142 of the Constitution of India. These powers are enjoyed only by the Apex Court and the observations made in respect of that jurisdiction cannot be applied to the present case.

 

 

In

the aforesaid background, the petition stands dismissed.

 

 

 

(A.L.

DAVE, J)

 

 

 

(BANKIM.N.MEHTA,

J)

shekhar*

 

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