Decided on August 16,2018



Atul Sreedharan, J. - (1.) The present petition has been filed for the issuance of a writ of habeas corpus against respondent nos.5 and 6. The respondent nos.5 and 6 are the father-in-law and wife of the petitioner respectively. The case of the petitioner herein is that his son Naitik Gupta, who is aged about six years, has been illegally restrained by respondent nos.5 and 6 and that number of times when the petitioner herein has visited the house of the respondents, they have neither permitted the petitioner herein to meet the child and nor was the custody of the child given to him and, therefore, the writ of habeas corpus has been filed. The mother is the natural guardian of the child. The child is only six years of age and yet instead of taking recourse to the due process of law which would have been to file a case under the Hindu Minority and Guardianship Act, 1956 before the trial court, the petitioner herein has sought to come directly to the High Court to invoke the plenary jurisdiction under Article 226 of the Constitution of India. No case has been made out by the petitioner herein as to why the alternative remedy under the Hindu Minority and Guardianship Act, 1956 is not efficacious enough in this case.
(2.) Learned counsel for the petitioner has placed two judgments before this court in order to buttress his case. The first judgment that has been placed before this court is Jitender Arora and others Vs. Sukriti Arora and others,2017 AIR(SCW) 957. In that case, the marriage had been solemnized between Jitender Arora and Sukriti Arora in the year 1999. The child Vaishali Arora was born to the couple in the year 2002. After marriage, the parties were living in the United Kingdom (U.K.) and there was souring of relationship between them. The respondent in that case Sukriti Arora had taken a decree of divorce from the court in U.K. and likewise, the appellant Jitender Arora had shifted to India along with their Vaishali in the year 2010 and had filed a petition for divorce and had obtained a decree of divorce against the respondent in that case. Both the divorce decrees i.e. the one issued in favour of the respondent Sukriti Arora in U.K. and the other granted in favour of the petitioner Jitender Arora were obtained ex-parte. The said ex-parte orders for divorce passed by both the courts have not been questioned and were never an issue before the Hon ble Supreme Court in the above said case. The issue related only to the custody of the child Vaishali Arora. The child was delivered in India and she came back to India in the year 2002 and started to stay with her paternal grandparents in Faridabad. She went back to the U.K. in the year 2003. Thereafter, the marital discord started erupting between the parties which partly subsided, a second daughter was born to them. However, after that the marital relations between the two broke down completely. In 2007, the daughter Vaishali was issued an Indian passport and she came back to India along with her father in the year 2007. She was admitted to a school in India in the year 2007 itself. Even after 2007 there appears to have been movement of the parties between India and U.K. and ultimately the respondent had filed a case in a court in the U.K. in the year 2009 in which an ex-parte order was passed prohibiting the appellant Jitender Arora from removing the two minor children from England and Wales. Further restraint order was passed against the appellant from removing Vaishali from attendance at the Alwyn Infants School where she was studying at that time. In the year 2009 when the petitioner had bought his daughter to India, the respondent in their absence had obtained a British citizenship for Vaishali in the year 2010. As the appellant had come to India with the child, the respondent filed a case for a writ of habeas corpus before the High Court of Punjab & Haryana. The said petition was allowed by the High Court vide order dated 25.5.2010 and the appellant Jitender Arora was directed to handover the custody of Vaishali to the mother i.e. the respondent, in the case before the Supreme Court. That order passed by the Punjab & Haryana High Court was challenged before the Hon ble Supreme Court in which the Supreme Court held that in the facts and circumstances of that case they were convinced that the custody of the child needs to be with the father.
(3.) Learned counsel for the petitioner has relied upon this judgment as, the Hon ble Supreme Court, while deciding the issue has taken several other judgments into consideration that in such cases the paramount interest was the welfare of the child which was looked into at the time of deciding custody. However, in paragraph 12 of the judgment the Supreme Court holds the circumstances in the present case, however, are materially different. Vaishali is a mature girl of 15 years of age. At this age, she can fully understand what is in her best interest. She is competent to take a decision for herself. There has been interaction with her by different Benches of this court from time to time, outcome whereof is reflected in the orders passed after such meetings. She has unequivocally and without any reservations expressed her desire to be with her father. More importantly, she has very categorically said that she does not want to go to U.K. Apparently, the fact that the child was 15 years of age, the court was convinced that she was mature enough to take a decision as to whom she wanted to stay with and her unequivocal refusal to go to the U.K., that the said order was passed in favour of the petitioner in that case.;

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