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Abhishek Baranwal vs State Of U.P. And 3 Others on 16 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 32

Case :- SPECIAL APPEAL No. – 798 of 2019

Appellant :- Abhishek Baranwal

Respondent :- State Of U.P. And 3 Others

Counsel for Appellant :- Bablu Singh,Sri Gopal S. Chaturvedi, Senior Advocate,Sri Samit Gopal, Senior Advocate

Counsel for Respondent :- C.S.C.,Praveen Kumar Singh,Syed Imran Ibrahim

Hon’ble Shashi Kant Gupta,J.

Hon’ble Saurabh Shyam Shamshery,J.

This special appeal has been filed against the judgment and order dated 22.5.2019 passed by the Hon’ble Single Judge in Habeas Corpus Writ Petition No. 3921 of 2018 (Aharya Baranwal and 3 others Vs. State of U.P. and 2 others) whereby Single Judge has over ruled the preliminary objection about the maintainability of the aforesaid writ petition and further summoned the appellant-husband Abhishek Baranwal and Prachet Baranwal (corpus) before this Court fixing 8.7.2019.

A perusal of the record shows that the Habeas Corpus Writ Petition No. 3921 of 2018 (Aharya Baranwal and 3 others Vs. State of UP and 2 others) was filed by the Respondent No. 5, Ritika Baranwal (wife) seeking a direction to the appellant-husband to produce petitioners (children) of said petition before this Court and hand over the custody of the children to the Respondent No. 5 (wife). A preliminary objection was raised before the learned Single Judge in the said petition by the learned counsel for the appellant (husband) with regard to maintainability of the said habeas corpus writ petition. Learned Single Judge, after hearing both the parties, rejected the preliminary objection raised by the learned counsel for the appellant and further directed the appellant to remain present before this Court along with Respondent No. 4, Prachet Baranwal (corpus) on the date fixed. Being aggrieved with the said order, the present special appeal has been preferred by the appellant-husband.

Learned counsel for the appellant has submitted that the learned Single Judge has erred in entertaining the habeas corpus writ petition. Since there is an alternative statutory remedy, the said petition was not maintainable. He further submitted that the respondent No. 5 Ritika Baranwal (wife) should have filed an appropriate application under the Guardian and SectionWards Act, 1890 (in short “Act 1890”) for the custody of the children (corpus) instead of preferring the habeas corpus writ petition before this Court.

The dispute appears to be between the husband and wife with regard to custody of the children.

Today when the matter was taken up in the revised list, Sri Imranullah and Sri Syed Imran Ibrahim, learned counsel for the Respondent No. 5, Ritika Baranwal (wife) have stated that her client Respondent No. 5 wishes to take appropriate proceedings under the Guardian and SectionWards Act, 1890 and therefore wants to withdraw the Habeas Corpus Writ Petition No. 3921 of 2018 (Aharya Baranwal and 3 others Vs. State of U.P. and 2 others) pending before the Single Judge of this Court and has further no objection in case the impugned order dated 22.5.2019 passed by Single Judge in Habeas Corpus Writ Petition No. 3921 of 2018 (Aharya Baranwal and 3 others Vs. State of U.P. and 2 others) is set aside. An undertaking has further been given by the learned counsel for the Respondent No. 5 that she will file appropriate application in Habeas Corpus Writ Petition No. 3921 of 2018 (Aharya Baranwal and 3 others Vs. State of U.P. and 2 others) pending before the Single Judge for dismissing it as not pressed with liberty to take appropriate proceedings under the Guardian and SectionWards Act, 1890 seeking custody of the children. It has been further stated that within a month of the dismissal of the said writ petition, she will file an appropriate petition under the said Act 1890 for the custody of the children.

Sri Gopal Chaturvedi and Sri Sumit Gopal, learned Senior Advocates assisted by Sri Bablu Singh, learned counsel appearing on behalf of the appellant-husband stated that they have no objection in case the Respondent No. 5, Ritika Baranwal (wife) files an application before the learned Single Judge for dismissal of the said petition as not pressed with liberty to take appropriate proceeding under the Act 1890 for custody of the children.

With the consent of the learned counsel for the parties and also keeping in view of the statements made by them, the special appeal is hereby allowed and the order dated 22.5.2019 passed by learned Single Judge of this Court in the Habeas Corpus Writ Petition No. 3921 of 2018 is hereby set aside. In case, the Respondent No. 5, Ritika Baranwal (wife) files an appropriate petition under the Guardian and SectionWards Act, 1890 seeking custody of the children, the same shall be decided by the concerned court below in accordance with law, preferably, within a period of three months from the date of production of a certified copy of this order.

Learned counsel for the appellant undertakes to co-operate with the lower court for the expeditious disposal of the proceedings if initiated by the Respondent No. 5, Ritika Baranwal (wife) under the Guardian and SectionWards Act, 1890.

It is made clear that we have not expressed any opinion on the merits of the case, the court below while dealing with the petition, if any, filed under the Act 1890 by the Respondent No. 5 shall decide it on its own merits.

We make no order as to costs.

Order Date :- 16.10.2019

vinay

 

 

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