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Jigyasa Tripathi D/O Damodar … vs The State Of Madhya Pradesh on 16 January, 2020

1 WP-1099-2020
The High Court Of Madhya Pradesh

Jabalpur, Dated : 16-01-2020
Shri Siddharth Datt, counsel for the petitioner.
Shri Paritosh Gupta, G.A. for respondents/State.

In this petition filed under Article 226 of the Constitution, the petitioner
has prayed for issuance of writ of habeas corpus and for a direction to the

official respondents to ensure that custody of infant child Abhishek Shukla is
provided to the petitioner/ mother of the corpus.

Shri Siddharth Datt, learned counsel for the petitioner submits that no
doubt petitioner has a statutory remedy under the Guardian and Wards Act,
1890, this petition is maintainable in view of the recent judgment of Supreme
Court reported in (2019) 7 SCC-42 Tejaswini Guad and others Vs.
Shekhar Jagdish Prasad Tewari and others. He further urged that
indisputably the corpus is in the custody of his own father, the custody needs
to be given to the present petitioner.

Shri Paritosh Gupta, G.A opposed the petition by contending that
petitioner has an efficacious, alternative remedy under the civil law.

No other point is pressed by learned counsel for the parties.
As per petitioner’s own case, the corpus is in the custody of
petitioner’s husband/ father of corpus. The Division Bench of this Court in
Sumanlata Vs. Om Prakash Saini -1989 MPLJ-492 dealt with the aspect
whether writ jurisdiction can be invoked for securing custody of a minor
child. Faizanuddin J. (As His Lordship then was) opined as under :-

“11. There is also neither any allegation nor any
material to show that there is any imminent danger to the life
and safety of the minor or her health or welfare is, in any
manner, at a stake in the custody of her father, respondent
No.1. There is also no material to indicate that the interest of

Digitally signed by MANOJ KUMAR
Date: 17/01/2020 17:25:04
2 WP-1099-2020
the child would suffer if she is allowed to remain in the
custody of respondent No.1 After all the respondent No.1 is
the father of the minor child and somehow the child has
crossed that crucial period of breast-feeding and the
respondent No.1 has been able to maintain and look after her

reasonably in quite a fair way. To us, the dispute between the
parties virtually appears about the guardianship and custody
of the child Chandra Prabha Saini for which the petitioner
ought to have resorted to the ordinary remedy under the
appropriate law and not this extraordinary remedy which is
available only in exceptional circumstances.”

In the case of Tejaswini Guad (supra) also the Apex Court
poignantly held that prerogative writ in Article 226 of the Constitution under
child custody cases can be issued in exceptional cases where ordinary
remedy provided by law is either unavailable or is ineffective. Exercise of
power by writ court is summary in nature, where a detailed inquiry is needed,
the court may direct the parties to approach the civil court. In the writ court,
rights are determined only on the basis of affidavits whereas before the civil
court parties can lead evidence and establish factual aspects.

In the instant case, corpus is in the custody of father. Whether
custody is forcibly taken and whether best interest/ welfare of child is to
remain with mother etc. are disputed questions for which detailed inquiry is
needed. Thus appropriate remedy, in the fact situation of this case, is under
the civil law. Thus, interference is declined. Liberty is reserved to the
petitioner to file appropriate proceeding before the competent civil court
under the Guardian and Wards Act, 1890 or under the Hindu Minority and
Guardianship Act, 1956, for custody of child. It is made clear that nothing
stated hereinabove shall, in any manner, affect the matter to be decided by the
said court.

With aforesaid observation, petition is disposed of.

Digitally signed by MANOJ KUMAR
Date: 17/01/2020 17:25:04
3 WP-1099-2020



Digitally signed by MANOJ KUMAR
Date: 17/01/2020 17:25:04

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