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Afifah Fatima (Minor) Throu.Her … vs The State Of … on 26 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 14

Case :- HABEAS CORPUS No. – 32501 of 2019

Petitioner :- Afifah Fatima (Minor) Throu.Her Father Mohd.Imran

Respondent :- The State Of U.P.Throu.Prin.Secy.(Home) Lucknow And Ors.

Counsel for Petitioner :- Sanjai Kumar Singh

Counsel for Respondent :- G.A.

Hon’ble Irshad Ali,J.

Heard learned counsel for the petitioner and Sri Rajesh Kumar Singh, learned A.G.A. for the State.

Learned A.G.A. raised preliminary objection in regard to the maintainability of present habeas corpus petition and invited attention of this Court on the order passed by this Court in a habeas corpus petition filed by the petitioner-detenue through mother Amita Maurya (Habeas Corpus No.15510 of 2018), wherein this Court passed an order on 3.8.2018, after hearing the parties as under :-

“Petitioner and opposite party no.2 are present in the Court, who agreed for giving right to visit and meet the detenue by opposite party no.2. With the consent of the parties, opposite party no.2 is given a right to meet the detenue on 2nd and 4th Sunday of the month at Sahara Mall, Lucknow. He would meet her from 11 AM to 01 PM. It is made clear that only the petitioner as well as opposite party no.2 shall remain there, no other relative should be permitted to remain present at the time of meeting.

This order shall remain enforce for one year or the disposal of any application, if any, moved by the opposite party no.2 for custody of the child which ever is earlier.

It is further provided that the opposite party no.2 may make a video call on Tuesday and Friday at 11 AM so as to see and talk with the detenue. Call should be made on the mobile number of petitioner as has been provided at the Mediation and Conciliation Centre. Call shall continue for ten minutes only.”

He further invited attention of this Court at page No.126 of the writ petition, which is an order dated 6.11.2019 passed by this Court on an application moved by the present petitioner for clarification and continuance of the order dated 3.8.2018. Relevant portion of the order is quoted below :-

“The order dated 03.08.2018 is very clear and permission was accorded to the applicant to move an application for custody of the child with the permission to continue the order till disposal of the application for custody of the child.

In case the applicant was aggrieved by the order dated 03.08.2018, he may approach appropriate forum. At this stage, no ground has been made for clarification or grant of permission to continue the order dated 03.08.2018.

Accordingly, the application is hereby rejected.”

In the light of the aforesaid two orders, submission of learned A.G.A. is that in the order dated 3.8.2018, it was clarified that the petitioner and opposite party No.2 have agreed for giving right to visit and meet the detenue. This liberty was given for one year or till disposal of any application, if any, moved by the opposite party No.2 for custody of the child whichever is earlier. He next submitted that in the light of the order and habeas corpus decided between the parties, the remedy available to the petitioner is to approach the competent court of law for the custody of the child as per the provision contained under the Guardians and SectionWards Act, 1890 and the present petition is not maintainable.

In rebuttal, learned counsel for the petitioner invited attention of this Court on page No.81 and submitted that the allegation levelled in the First Information Report clearly demonstrates that the detenue is not safe in the custody of the mother.

While pressing the application for clarification, the same counsel appeared before this Court and made statement that an application for custody of the child has been filed by the opposite party No.2 and till date, he has not moved correction in the order dated 6.11.2019. Now, he is changing his statement and making submission that neither the present petitioner, nor the opposite party No.2 has approached the competent court of law, as directed in the order dated 3.8.2018.

I have considered the submission advanced by learned counsel for the parties and perused the material on record.

In the order passed in earlier litigation by this Court on 3.8.2018, it was clarified that the parties aggrieved are at liberty to approach the competent court of law for custody of the child. As per the submission advanced by the learned counsel for the petitioner, a petition has been filed before the court dealing with the matter under Guardians and SectionWards Act, 1890, which is lying pending consideration. This Court in the order dated 3.8.2018, has provided that the order shall remain in force for one year or till disposal of any application moved by opposite party No.2 for custody of child, whichever is earlier.

In view of the embargo laid down by this Court in the order dated 3.8.2018, this Court after considering the application for clarification and extension of order dated 3.8.2018, rejected the grievance of the petitioner by assigning reason that once remedy has been provided to the petitioner, the application is misconceived.

In view of the peculiar facts and circumstances of the case, the objection raised by learned A.G.A. in regard to the non-maintainability of second habeas corpus petition between the same parties, where liberty has been given to approach the competent court of law to avail the remedy for custody of the child, appears to be justified.

Accordingly, the petition being misconceived, is hereby dismissed.

However, if no one has approached the competent court of law for custody of the detenue in view of the order dated 3.8.2018, the parties are at liberty to approach the competent court of law.

Order Date :- 26.11.2019

Gautam

 

 

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