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Heena Shrivastava Mandal vs The State Of Madhya Pradesh on 30 July, 2018

1 WP-13045-2018
The High Court Of Madhya Pradesh

Jabalpur, Dated : 30-07-2018
Shri A.S.Raizada, learned counsel for the petitioner.
Smt. Janhavi Pandit, learned Government Advocate for the

The petitioner, who is the mother of two children i.e. Anushka aged
about 6 years and son Dev aged about 5 years, has filed this petition in
the nature of Habeas Corpus thereby directing the State Authority to
produce the minor children of the petitioner before this Court.

The petitioner has entered into a marriage with respondent No.5.
There is some matrimonial disputes between the petitioner and
respondent No.5. In-laws of the petitioner i.e. respondents No. 6 to 9
threatened the petitioner that she should leave the village otherwise
children would be killed. On 16/05/2018 the petitioner was physically
assaulted by respondent No.5 and when she was going towards the
Police Station along with her children, respondents No. 6 to 8 have
snatched away the children from the custody of the petitioner. Therefore,
the petitioner has filed the present petition for producing her minor
children before this Court.

In compliance of the direction issued by this Court for producing
the corpus, Shri Ram Prasad Gotiya, A.S.I. and Shri Santram Pathak, 908
Mihila Thana, Jabalpur have taken the children into their custody and
given them in the custody of the petitioner. Both the children were
present before this Court. When this Court has asked them whether they
want to live with mother or father, they refused to live with their father
i.e. respondent No.5 and told that they want to live with their mother.

Learned Government Advocate appears on behalf of the State has
taken a preliminary objection that the said writ petition in the nature of
Habeas Corpus is not maintainable as the petitioner has a remedy for
filing an application under the Guardians and Wards Act.

The Division Bench of this Court in the case of Smt. Sumanlata
Saini vs. Omprakash Saini others, 1989 MPJR HC 578, has held
that writ of Habeas Corpus can be issued in the matter of custody of
minor children looking to the interest of minor. In paragraph 6 of the said
judgment, the Division Bench of this Court has held that “irrespective of

Digitally signed by MANJU
Date: 31/07/2018 17:09:04
2 WP-13045-2018
the fact that alternative remedy under the Guardians and Wards Act is
also available, with a view to provide immediate release in suitable
cases. But it has to be remembered that this extraordinary power should
be exercised only in exceptional circumstances and in case of urgency,
such as, where a father/legal or natural guardian is suddenly and illegally
deprived of the custody of his child and there is danger to his life as in
such circumstances the safety and welfare of the child is always the
paramount consideration”.

In view of the aforesaid, learned counsel for the petitioner has
submitted that respondents have threatened to kill the children, therefore,
in such circumstances and in light of the judgment passed by the Division
Bench of this Court, the writ of Habeas Corpus can be issued.

The Supreme Court in the case of Capt. Dushyan Somal vs. Smt.
Sushma Somal others, 1981 (2) SCC, 277, has held that writ by wife
against the husband for illegal custody of children can be issued.

Thus, in light of the aforesaid judgments, I allow this writ petition
and directed the respondents to hand over the custody of minor children
daughter Anushka and son Dev to the custody of their mother i.e.
petitioner with immediately effect.

With the aforesaid observation, the petition stands allowed and
disposed of.



Digitally signed by MANJU
Date: 31/07/2018 17:09:04

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