1 WP-17910-2019
The High Court Of Madhya Pradesh
WP-17910-2019
(AMBARISH SINGH Vs SMT. SUCHETA BHADORIYA AND OTHERS)

5
Gwalior, Dated : 29-02-2020
Shri R.K.Pathak, counsel for the petitioner.
Shri Anil Sharma, learned counsel for the respondent No.1.

Shri S.N.Seth, learned Government Advocate for the State.
A preliminary objection has been raised by the counsel for the
respondents that the petitioner himself has disclosed in the writ petition that

he has already filed a petition before family Court under Section 25 of the
Guardians and Wards Act, 1890 (in short “Act, 1890”) for the custody of the
minor child and therefore, this parallel petition under Article 226 of the
Constitution of India in the nature of habeous corpus is not maintainable.

It is further submitted by the counsel for the respondent No.1 that in
fact the petitioner is not interested in the welfare of the child. The mother of
the child expired after giving birth to the child and from thereafter child was
looked after by the respondent No.1, who is her matrimonial grand mother
and the petitioner never took care of the child.

Only when an application under Section 125 of Cr.P.C. was filed by
the respondent No.1, the petitioner is now trying to take the custody of the
child. It is further submitted that if the petitioner was so concerned about the
custody of the child, then he should have participated in the proceedings
under Section 125 of the Cr.P.C. but he did not appear in those proceedings
and he has been proceeded ex-parte. It is submitted by the counsel for the
respondent that this petition has been filed with malafide intentions and the
child is in the custody of her matrimonial grand mother and it cannot be said
that she is under illegal detention.

Per contra, it is submitted by the counsel for the petitioner that where
welfare of the child is involved, then the petition under Article 226 of the
Constitution of India in the nature of habeous corpus is maintainable,

Digitally signed by PRINCEE BARAIYA
Date: 03/03/2020 17:54:59
2 WP-17910-2019
however, he prayed for some time to argue on the question of maintainability
of this writ petition in the light of the pendency of the proceedings under
Section 25 of the Act, 1890.

As prayed, list next week.

(G.S. AHLUWALIA)
JUDGE

Pj’S/-

Digitally signed by PRINCEE BARAIYA
Date: 03/03/2020 17:54:59