Seema Borar vs State of U.P.

Akhtar Husain Khan, J.—Present Habeas Corpus Writ Petition has been filed by petitioner No. 1 Smt. Seema Borar for herself as well as on behalf of her minor son petitioner No. 2 Samar Borar under Article 226 of the Constitution of India with prayer to direct the respondents to produce petitioner No. 2 before this court and to hand over the custody of petitioner No. 2 to her.

Learned counsel Sri Rajiv Choudhury appeared for petitioners. Learned A.G.A. appeared for respondents No. 1 and 2. Learned counsel Sri P.K. Singh appeared for respondents No. 3 to 8.

Affidavits have already been exchanged between the parties.

I have heard learned counsel for the parties and gone through petition as well as affidavits filed by parties.

In brief, it has been contended by learned counsel for petitioners that the marriage of petitioner No. 1 was solemnized on 15.4.2012 with respondent No. 3 in accordance with Hindu Customs and Rites. Thereafter, in January, 2014 petitioner No. 2 was born by their wedlock. Due to harassment and cruelty caused by respondents No. 3 to 8 to petitioner No. 1 in pursuance of demand of dowry, father of petitioner No. 1 brought her alongwith petitioner No. 2 at Varanasi in March, 2014. Since then petitioner No. 1 was residing at Varanasi alongwith petitioner No. 2. On 20.6.2014 respondent No. 3 called petitioner No. 1 in Durga Mandir and when petitioner No. 1 alongwith petitioner No. 2 went there, he took petitioner No. 2 from the lap of petitioner No. 1 and handed over him to the custody of respondents No. 4 to 8. Thereafter, all of them fled away with child (petitioner No. 2). Thereafter petitioner No. 1 made several efforts for getting custody of her minor son but could not succeed, consequently she has filed this writ petition.

In counter affidavit filed by respondent No. 3 Praveen Kumar Borar, it has been admitted that the marriage of petitioner No. 1 was solemnized with respondent No. 3 on 15.4.2012 according to Hindu Customs. It has also been admitted that petitioner No. 2 was born by their wedlock but date of birth of petitioner No. 2 has been alleged in counter affidavit 1.2.2014.

In counter affidavit filed by respondent No. 3 it has been contended that on 1.6.2014 petitioner No. 1 left her child in her sasural and went to her mayaka with her father. Thereafter respondent No. 3 is looking after his newly born child.

In counter affidavit it has been further contended that respondent No. 3 has made call to petitioner No. 1 for coming back but she has refused to come. Thereafter, respondent No. 3 has filed Suit under section 9 Hindu Marriage Act against petitioner No. 1. In counter affidavit filed by respondent No. 3 it has been specifically denied that respondents made demand of dowry or subjected petitioner No. 1 to harassment in pursuance of demand of dowry.

In counter affidavit respondents No. 3 has contended that petitioner No. 1 has left her newly born child and respondent No. 3 is taking care of his son who is living happily with him. He has contended that petitioner No. 1 has filed this petition after institution of suit for restitution of conjugal rights under section 9 of Hindu Marriage Act by respondent No. 3 against petitioner No. 1.

In rejoinder affidavit filed by Arun Kumar Dhanuka Borar father of petitioner No. 1, it has been denied that after having left petitioner No. 2 in her sasural, petitioner No. 1 went her mayaka with her father. In this respect in rejoinder affidavit it has been stated that petitioner No. 1 alongwith petitioner No. 2 was brought by the father of petitioner No. 1 to her mayaka in March 2014 during Holi Festival and since then petitioner No. 1 is residing at Varanasi.

It has been contended in rejoinder affidavit filed by Arun Kumar Dhanuka Borar father of petitioner No. 1 that due to inhuman torture and misbehavior caused to petitioner No. 1 by respondents No. 3 to 8, petitioner No. 1 is not willing to live with respondent No. 3. It has been further alleged in rejoinder affidavit that Crime No. 85 of 2014 under sections 498-A, 323, 354-A, 377, 363, 504, 506 IPC and section 3/4 D.P. Act has been registered in P.S. Luxa, District Varanasi against respondent No. 3 and others on the report of petitioner No. 1.

In the rejoinder affidavit filed by father of petitioner No. 1 it has been stated that petitioner No. 1 is the natural guardian of petitioner No. 2 and is entitled to custody of petitioner No. 2.

In the case of Rajesh K. Gupta Vs. Ram Gopal Agarwala and Others, , Hon''ble Apex Court has held that," it is well settled that in an application seeking a writ of Habeas Corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of child can be said to be lawful or illegal and whether the welfare of child requires that the present custody should be changed."

In view of above pronouncement of Hon''ble Apex Court, first of all I have to see whether the custody of child with respondent No. 3 can be said to be illegal or lawful.

In para 10 and 11 of petition it has been specifically stated that respondent No. 3 who is husband of petitioner No. 1 called petitioner No. 1 to meet him at Durga Mandir and on 20.6.2014 respondent No. 3 took the petitioner No. 2 from the lap of petitioner No. 1 and handed over to respondents No. 4 to 8. Thereafter all of them fled away with child by Bolero Jeep.

In counter affidavit filed by respondent No. 3 in para 20, para 10 and 11 of petition has been denied and it has been stated that on 1.6.2014 petitioner No. 1 has herself left her sasural leaving petitioner No. 2 there but in rejoinder affidavit filed by father of petitioner No. 1 in para 16, para 20 of counter affidavit has not been admitted and para 10 and 11 of petition have been reiterated. Alongwith rejoinder affidavit photostat copy of Chik FIR of Crime No. 85 of 4014 under sections 498-A, 323, 354-A, 377, 363, 504, 506 IPC and section 3/4 D.P. Act, P.S. Luxa, Varanasi has been annexed, which shows that this crime has been registered against respondents No. 3 to 8 in compliance of order passed by Magistrate on the application of petitioner No. 1 moved under section 156(3) Cr.P.C. on 26.7.2014.

In para-16 of application moved under section 156(3) Cr.P.C. petitioner No. 1 has stated as follows:-

Above para-16 of application moved under section 156(3) Cr.P.C. belies the version of petitioners made in para-9,10 and 11 of petition.

Perusal of para-9, 10 and 11 of petition shows that contention of petitioners is that in March 2014 during Holi Festival father of petitioner No. 1 brought petitioner No. 1 alongwith petitioner No. 2 to his house at Varanasi and since then petitioner No. 1 was living at Varanasi alongwith petitioner No. 2. Thereafter, on 15.6.2014 respondent No. 3 contacted petitioner No. 1 through telephone and called her to meet at Durga Mandir, whereupon petitioner No. 1 went there on 20.6.2014 at the place desired by respondent No. 3 where respondent No. 3 snatched the child from petitioner No. 1 and handed over to respondents No. 4 to 8 but the allegation made in aforesaid para-16 of the application moved under section 156(3) Cr.P.C., shows that the petitioner No. 1 remained in the house of respondent No. 3 till 21.6.2014. Therefore, the whole story narrated in para-9, 10 and 11 of petition appears false and concocted.

In counter affidavit filed by respondent No. 3 it has been contended that on 1.6.2014 petitioner No. 1 has left her child in her sasural and went to her mayaka with her father. Copy of petition moved under section 9 of Hindu Marriage Act by respondent No. 3 Praveen Kumar Borar against petitioner No. 1 Smt. Seema Borar for restitution of conjugal rights shows that this petition has been moved by respondent No. 3 on 25.6.2014 and in para-15 of this petition it has been alleged that on 21st June, 2014 petitioner No. 1 left the house leaving the child with her younger sister who had come to Purnia on a visit without informing the petitioner. In application moved under section 156(3) Cr.P.C. petitioner No. 1 has also admitted that she remained in the house of respondent No. 3 till 21.6.2014. Therefore, 1.6.2014 date mentioned in counter affidavit on which petitioner No. 1 is alleged to have left the house of respondent No. 3 appears to be result of typing or accidental mistake.

It is relevant to mention that Smt. Seema Borar has not filed her personal affidavit or rejoinder affidavit in support of allegation made in petition for writ of Habeas corpus. Contentions made by respondent No. 3 in counter affidavit have not been denied by personal affidavit of petitioner No. 1.

After having gone through petition as well as affidavits filed by the parties and documents available on record, I am of the view that the averment made in petition appears to be concocted and false and no reliance can be placed on version of writ petition.

Admittedly respondent No. 3 is the father of petitioner No. 2 and averment made in counter affidavit as well as in petition moved under section 9 of Hindu Marriage Act by respondent No. 3 against petitioner No. 1 shows that it is the case of respondent No. 3 that petitioner No. 1 herself has left the house of respondent No. 3 leaving her child petitioner No. 2 at the house of respondent No. 3. The averment made in petition regarding manner in which custody of petitioner No. 2 is alleged to have been obtained by respondent No. 3 is false and concocted for reasons recorded above. Therefore, considering contentions of respondent No. 3 the custody of his minor son with him may not be said to be illegal.

In view of discussion made and conclusion drawn above, I am of the view that petitioners have failed to prove that custody of corpus petitioner No. 2 has been obtained by respondent No. 3 unlawfully.

As the petitioner No. 1 has herself left the child with respondent No. 3, welfare of child is not safe with her.

Discussion made above shows that facts alleged by petitioners to show cause of action in Varanasi are false and concocted. Respondents No. 3 to 8 are residents of Bihar State. Place of detention of corpus has not been mentioned in petition. Therefore, considering addresses of respondents it appears that corpus has been kept by respondents No. 3 to 7 in Bihar State, therefore, I am of the view that this court lacks territorial jurisdiction to entertain this writ petition.

In view of discussion made above, it is apparent that petitioners have not come to this court with clean hands. Therefore, petitioners are not entitled to relief under Article 226 of the Constitution of India.

Parties are at liberty to approach competent Civil/Family court, who shall pass order regarding custody of child after due inquiry in accordance with law.

In view of above, writ petition is dismissed with liberty to parties to approach competent Civil/Family court in accordance with law.