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Khushbu Choudhary vs Vikas Khatik on 7 December, 2017

1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

(Khushbu Choudhary vs. Vikas Khatik others)

Indore, dated : 07.12.2017

Shri V. K. Jain, learned Senior Counsel with Shri Vaibhav Jain,
learned counsel for the appellant.
Shri Yogesh Gupta, learned counsel for the respondent No.1.

Shri Vivek Patwa, learned Government Advocate for the
respondent No.4 – State.

Heard.

This intra-court appeal has been filed against the order dated
16.05.2017 passed in W. P. No.2604/2017, whereby learned Writ Court
dismissed the writ petition by holding that whether the child is son of
the appellant or not and whether she is entitled for custody or not
cannot be looked into in the habeas corpus petition and granted liberty
to the appellant to file an application under the Guardians and Wards
Act, 1890 for claiming the custody of the child.

2. According to the appellant – Khushbu Choudhary, on
10.06.2010, her marriage took place with one Arvind and she gave
birth to one child Harsh on 06.06.2011. It has been further stated that
divorce took place with Arvind and the appellant remarried in the
month of April, 2013 with respondent No.1 – Vikas Khatik. As she
was ill-treated by her second husband (Vikas Khatik – respondent
No.1) and she was chased out of the house on 22.12.2016 and since
22.12.2016, her minor child is with the respondent No.1, who is his
step father and the child was not given to the appellant – mother, who is
natural guardian. Her child is in the custody of respondent No.2 (Bua

– close relative), prayed for issuance of directions in the nature of
habeas corpus directing the respondent Nos.1 and 2 to produce Harsh,
2
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

(Khushbu Choudhary vs. Vikas Khatik others)

son of the appellant in body in this Court enabling her to have custody
being the natural mother.

3. The stand of the respondent No. (Vikas Khatik) before the Writ
Court was that Harsh is his child and after mother left her child, he is
looking after the child. It has also been stated that child is also looked
after by the respondent No.2, who is the sister of respondent No.1.

4. An effort was made to know the wish of the child and in presence
of the Government Advocate, child was called upon to find out the
wish of the child and the child has flatly refused to go with his mother.
The child has expressed his desire to go with the father and, therefore,
prayer has been refused and, liberty was granted to the appellant to file
an application for custody of the child.

5. Learned Senior Counsel for the appellant has submitted that even
if the child is born with the wedlock of appellant and respondent No.1,
then also, she is the natural guardian and is entitled for custody of the
minor child, who is six years of age. He has further drawn our
attention to the judgement in the case of Nirmaljit Kaur (2) vs. State
of Punjab others reported in 2006 (9) SCC 364 and Usha Devi
another vs. Kailash Narain Dixit others reported in 1977 MPLJ
311 and submits that writ of habeas corpus for custody of child is very
much maintainable.

6. Learned counsel for the respondent No.1 has vehemently
disputed the factum and submitted that child was not born with first
husband of the appellant. He further submitted that respondent No.1
being the natural guardian cannot be deprived of the custody of the
child, who is 6 years of age. Interest of the minor is always the
paramount consideration while passing orders for custody of the minor.

3

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

(Khushbu Choudhary vs. Vikas Khatik others)

Where the minor is not of an age to exercise his choice, the Court has
to enquire into the conflicting claims for custody of the minor.

7. Relevant part of the order dated 16.05.2017 passed in W. P.
No.2604/2017 reads as under :-

An effort was made to know the wish of the child
and in presence of learned Government Advocate Ms
Mamta Shandiliya time was devoted to find out the wish of
the child and the child has flatly refused to go with his
mother. The child even in the court room does not want to
leave his father (respondent No.1) and ‘Buva’ (respondent
No.2) and, therefore, in the considered opinion of this
court, the question of directing the respondents No.1 and 2
to handover the minor child Harsh to the present
petitioner does not arise. Whether the child is son of the
petitioner or not and whether she is entitled for custody or
not cannot be looked into in the present writ petition, at
this juncture. The petitioner shall be free to file an
appropriate application under the Guardians and Wards
Act, 1890 for claiming the custody of the child.

Mr Dhairyashil Yewale, Station House Officer,
Police Station Palasia is present in court and he was also
present at the time when the child has expressed his desire
to go with his father. Mr Yewale is directed to ensure safe
return of the father and his child to the State of
Chhattisgarh.

8. In the present case, the child was produced before the learned
Writ Court and, thereafter, he flatly refused to go with his mother.

9. Considering the aforesaid so also as per the arguments of the
learned counsel for the respondent No.1, he is also the natural
guardian. In the habeas corpus writ petition, it cannot be said that
custody of child is not illegal confinement because child is in the
custody of the respondent No.1 and he is residing along with
respondent No.1 and respondent No.2 -Bua.

4

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

(Khushbu Choudhary vs. Vikas Khatik others)

10. For these reasons, we cannot accept the prayer of the appellant
for custody of the child in this writ appeal. On due consideration of the
aforesaid so also the fact that respondent No.1 also being the natural
guardian, custody of the child cannot be decided in these proceedings.
Learned Writ Court has rightly granted liberty to the appellant to file an
application for custody of the child under the Guardians and Wards
Act. No case to interfere with the impugned order, as prayed is made
out. The writ appeal is accordingly, dismissed.

(P. K. Jaiswal) (Virender Singh)
Judge Judge

Digitally signed by Geeta Pramod
Date: 2017.12.12 14:24:50 +05’30’

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