This Habeas Corpus Petition has been filed under Article 32 of the
Constitution of India by the petitioner (father) for the custody of
his two minor children.
The brief facts of the case are that the petitioner had
married the respondent No. 6 and they have a son aged about 15
years and a daughter aged about 10 years. The petitioner is a
citizen of Spain. There being some disputes between the petitioner
(husband) and respondent No. 6/wife, the respondent No. 6/wife left
the petitioner along with the two minor children. The petitioner
thereafter filed a case under Section 12 of the Guardians and Wards
Act, 1890 (hereinafter referred to as “the Act”) for the custody of
SUNIL KUMARDate: two2021.09.22 minor children, before the 10th Additional District Judge,
Alipore, Kolkata, which is numbered as Case No. 88 of 2017. The
said case for custody is still pending before the said Court.
Further a case under the Protection of Women from Domestic Violence
Act,2005 has also been filed by respondent No. 6/wife against the
petitioner, which is also pending. In the said case, some
maintenance amount was granted in favour of respondent No. 6/wife,
which was challenged before the High Court and the same has been
reduced. The same is not an issue in this petition.
In the background of the aforesaid facts and circumstances,
the petitioner has filed this writ petition with the following
prayers:
“(i) Issue an appropriate writ/order/direction
in the nature of Habeas Corpus to issue directing
and commanding the Respondent Nos.2, 3, 4 and 5 to
produce Siddhartha Aupa Zalba Mahapatra and
Ikantika Margarita Zalba Mahapatra before this
Hon’ble Court ensuring protection of their rights
and their best interest from the custody of the
respondent no.6.
(ii) Issue an appropriate writ/order/direction
in the nature of Mandamus directing the
Respondents No.2, 3, 4 and 5 to hand over the
custody of the said Siddhartha Aupa Zalba
Mahapatra and Ikantika Margarita Zalba Mahapatra
subject to the outcome of Act VIII Case No.88 of
2017 pending before the Learned 10th Additional
District Judge, Alipore for ensuring proper
protection of their rights by shifting the
children from Kolkata, India to Spain, the safest
option available to the children;
(iii) Issue an appropriate writ/order/direction in
the nature of Certiorari directing the respondents
to produce the records of the case in connection
with Act VIII Case No.88 of 2017 presently pending
before the Learned 10th Additional District Judge,
Alipore before this Hon’ble Court so that
conscionable justice may be administered after
scrutinizing the same.
(iv) Interim order directing the Respondents
concerned and to render police assistance for
protecting the life and property of the children
of the petitioner and the respondent no.6, namely,
Siddhartha Aupa Zalba Mahapatra and Ikantika
Margarita Zalba Mahapatra.
(v) Interim order directing the children to be
taken from Kolkata, India to Spain and live under
the care and protection of their paternal family
including the petitioner and be housed at their
paternal family home in Spain.”
We have heard the petitioner, who has appeared in-person, as
well as Mr. Sidharth Luthra, learned senior counsel appearing on
behalf of respondents no. 1 to 5 along with Mr. Chanchal Kumar
Ganguli and Mr. Anuj Prakash, learned counsel for respondent no.
6 /wife and perused the record. We have also heard Mr. P.S.
Narasimha, learned senior counsel who was appointed as Amicus
Curiae to assist the court.
The fact that the petition for custody of the children under
Section 12 of the Act is pending, has not been disputed. The
pendency of the said case would also be clear from the perusal of
the prayers made in this petition, which have been extracted above.
A preliminary objection has been raised by Shri Anuj Prakash,
learned counsel for the Respondent no.6 with regard to the
maintainability of this petition, particularly when the petition
filed by the petitioner under the Guardians and Wards Act for
custody of the children is pending before the Trial Court.
The petitioner has submitted that this petition has been filed
to ensure the safety of, and in the best interest of the minor
children. It is contended that respondent No. 6/wife along with two
minor children is staying in Kolkata, which is a red zone for
COVID-19, whereas the petitioner being a resident of Spain can take
the children to Spain, which is a much safer place and has better
medical facilities. It is also contended that at present the
petitioner is staying in Shantiniketan, which is a green zone for
COVID-19 and, thus, the children would be safer with the petitioner
in Shantineketan. It is also submitted that the children have been
illegally taken away by respondent No. 6/wife and the petitioner is
wrongly deprived of their custody. The petitioner has submitted
that the children have the right to live with their father, as both
the parents have right for the custody of their children. In
support thereof, he relied upon the decisions of this Court in
“Soumitra Kumar Nahar Vs. Parul Nahar ” (2020) 7 SCC 599 and
“Yashita Sahu Vs. State of Rajasthan ” (2020) 3 SCC 67. It is
further contended by the petitioner that though the petition for
custody of the children under the Guardians and Wards Act is
pending before the Trial Court but in the given circumstances, the
respondent no. 6/wife be directed by this Court to handover the
custody of the children to the petitioner.
Per contra, Mr. Sidharth Luthra, learned senior counsel
appearing for the State/respondents has submitted that in view of
the fact that the petition for custody of the children is pending
before the Trial Court, this writ petition under Article 32 of the
Constitution of India would not be maintainable. In support
thereof, he placed reliance upon the two decisions of this Court in
“Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari” (2019) 7
SCC 42 and “Yashita Sahu Vs. Sate of Rajasthan” (2020) 3
SCC 67. It is further contended that in the counter affidavit
filed by the State, it has categorically been stated that the
position of pandemic in the State of West Bengal is well under
control and it cannot be said that the children will not be safe
with the mother in Kolkata.
Mr. P.S. Narasimha, learned Amicus has very fairly placed the
position of law relating to the present matter.
Mr. Anuj Prakash, learned counsel for respondent No. 6/wife
has supported the submissions of Mr. Luthra with regard to the non-
maintainability of this Habeas Corpus Petition, especially when the
custody of the children is with the mother, who is a natural
guardian. It is contended that the maintenance amount awarded by
the Trial Court under the provisions of the Protection of Women
from Domestic Violence Act,2005 has not been paid by the petitioner
to respondent No. 6/wife which would, according to the learned
counsel, clearly demonstrate that the petitioner has no concern for
the wellbeing of respondent No. 6/wife or the children. It is
lastly contended that in case the petitioner is given custody of
the children and he takes the children to Spain, they would be
outside the territorial jurisdiction of the Trial Court, where the
petition for custody of the children under the provisions of the
Act is pending. With regard to the safety of the children, it has
been contended that respondent No.6/wife, along with children are
staying in Kolkata, and since March 2020, two waves of pandemic
(COVID-19) have already passed, and respondent no. 6/wife as well
as two minor children are completely safe.
Having heard the petitioner as well as the learned counsel for
the parties and on perusal of the record, before going into the
merits of the claim of the petitioner, the preliminary question to
be decided by this Court would be with regard to the
maintainability of this petition.
It cannot be disputed that both the parents may have a right
for custody of their children but the said question of custody is
to be considered and decided after evidence is adduced by the
parties, and after following the due procedure, which would be
under the provisions of the Guardians and Wards Act; and the
petitioner has already filed a petition under the said Act, which
matter is pending consideration before the Trial Court in Kolkata.
The decision in Yashita Sahu (supra) is distinguishable on
facts. The said case related to a matter in which both the parents,
along with the children, were residing in United States and since
there were disputes between the husband and wife, and the wife had
taken away the children and started living separately, the father
filed a petition for custody of the children before the court in
the United States, which directed the wife to produce the children
and instead the wife took the children from United States to India.
It was in such circumstances that in a Habeas Corpus Petition
before the Rajasthan High Court, the High Court directed the wife
to return to the United States along with the minor daughter within
six weeks to enable the territorial jurisdictional court in United
States to pass further orders in the proceedings already pending
there. It was in the aforesaid facts that the writ petition for
Habeas Corpus was held to be maintainable. This Court in the case
of Tejaswini Gaud (supra) has categorically laid down the law
with regard to the maintainability of Habeas Corpus Petition in
Paragraphs No. 19 & 20, which are extracted below:
“19. Habeas corpus proceedings is not to justify
or examine the legality of the custody. Habeas
corpus proceedings is a medium through which the
custody of the child is addressed to the
discretion of the court. Habeas corpus is a
prerogative writ which is an extraordinary remedy
and the writ is issued where in the circumstances
of the particular case, ordinary remedy provided
by the law is either not available or is
ineffective; otherwise a writ will not be issued.
In child custody matters, the power of the High
Court in granting the writ is qualified only in
cases where the detention of a minor by a person
who is not entitled to his legal custody. In view
of the pronouncement on the issue in question by
the Supreme Court and the High Courts, in our
view, in child custody matters, the writ of habeas
corpus is maintainable where it is proved that the
detention of a minor child by a parent or others
was illegal and without any authority of law.
20. 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. In cases arising out of the
proceedings under the Guardians and Wards Act, the
jurisdiction of the court is determined by whether
the minor ordinarily resides within the area on
which the court exercises such jurisdiction. 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. What is important is the welfare of the
child. In the writ court, rights are determined
only on the basis of affidavits. 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 corpus.”
Emphasis supplied
In the present case, the admitted facts being that the mother
has the custody of two minor children, for which the
petitioner(father) has already filed a petition under Section 12 of
the Act, which is pending consideration; and the custody of the
children with the mother, who is a natural guardian, cannot be said
to be illegal and, thus, the petition for habeas corpus would not
be maintainable and that too directly under Article 32 of the
Constitution of India. While saying so, we are not going into the
question whether the maintenance amount directed by the Trial Court
in the proceedings under the Protection of Women from Domestic
Violence Act,2005 has been paid or not. The statutory remedy
available under the Guardians and Wards Act is the appropriate
remedy, which has already been availed by the petitioner. There are
no extra ordinary or exceptional circumstances in the present case
requiring this Court to exercise its jurisdiction under Article 32
of the Constitution of India. The remedy already availed by the
petitioner is an appropriate and effective remedy, where all the
questions raised herein regarding the welfare and wellbeing of the
children can be considered in accordance with law, after
appreciation of the evidence, which may be led by the parties.
Accordingly, we dismiss this writ petition on the ground of
maintainability. However, we request the 10th Additional District
Judge, Alipore, Kolkata to hear and decide the pending case No. 88
of 2017 as expeditiously as possible, and in accordance with law,
preferably within six months from the filing of a certified copy of
this order, along with an application for expeditious disposal of
the pending case.
Before parting, we express our gratitude for the able
assistance rendered by Mr. P.S. Narsimha learned senior counsel,
who was appointed as Amicus Curiae by this Court.
New Delhi;
July 28, 2021
ITEM NO.3 Court 11 (Video Conferencing) SECTION X
Writ Petition(s)(Criminal) No(s). 318/2020
JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO ZALBA Petitioner(s)
THE STATE OF WEST BENGAL & ORS. Respondent(s)
(FOR ADMISSION and IA No.105558/2020-PERMISSION TO APPEAR AND ARGUE IN PERSON Mr. P.S. NARASIMHA, LEARNED SENIOR COUNSEL IS APPOINTED AS AMICUS CURIAE TO ASSIST THE COURT. IA No. 59762/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 59764/2021 - EXEMPTION FROM FILING AFFIDAVIT)
Date : 28-07-2021 This matter was called on for hearing today.
Mr. P.S. Narasimha, Sr. Adv. (AC) For Petitioner(s)
Petitioner-in-person
For Respondent(s) Mr. Sidharth Luthra, SR. Adv.
Mr. Soumitra G. Chaudhuri, Adv.
Ms. Puja Kumari Shaw, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Mr. Kumar Mihir, AOR
UPON hearing the counsel the Court made the following
The writ petition is dismissed in terms of the signed
reportable order.
Pending application(s), if any, stands disposed of
accordingly.
(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR) (COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS
(Signed reportable order is placed on the file)