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Kunal Chaturvedi Thru. Mother … vs State Of U.P. Thru. Secy. Home. … on 22 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Court No. – 14

Case :- HABEAS CORPUS No. – 30703 of 2019

Petitioner :- Kunal Chaturvedi Thru. Mother Smt. Meghna Chaturvedi

Respondent :- State Of U.P. Thru. Secy. Home. Deptt. Lko Others

Counsel for Petitioner :- Ram Naresh Yadav

Counsel for Respondent :- Govt. Advocate

Hon’ble Irshad Ali,J.

1. Heard learned counsel for the petitioner, learned Additional Government Advocate for respondents 1 and 2 and Mr. Kushagra Dikshit, Advocate for the private respondent. The power filed today in Court by Mr. Dikshit is taken on record.

2. Present petition under SectionArticle 226 of the Constitution of India has been filed for issuance of a writ in the nature of habeas corpus directing respondent No.3 to produce the detenu petitioner before this Court and set him at liberty.

3. On a pointed query made to the learned counsel for the petitioner that how this writ petition under SectionArt. 226 of the Constitution of India is maintainable for handing over custody of the child to the mother, or to permit her to visit the place where the petitioner Kunal Chaturvedi has been allegedly detained by his father, learned counsel for the petitioner submits that the petition under SectionArt. 226 of the Constitution of India is maintainable because the mother of the child is the natural guardian and she has not been permitted to visit the place the petitioner Kunal Chaturvedi is detained.

4. On the other hand, learned Additional Government Advocate submits that a habeas corpus petition filed under SectionArt. 226 of the Constitution of India can only be entertained in case the detenu(e) has been detained illegally against his/her wishes.

Supplementing his argument, It has been submitted that a Misc. Case No.111/2014 was filed by Anil Kumar Chaturvedi under Guardian and SectionWards Act before the Family Court, Lucknow wherein vide order dated 26.8.2017, a copy whereof has been placed by him before this Court which is taken on record, the Family Court has given the custody of Kunal Chaturvedi, the petitioner/detenu herein, to the father (respondent No.3). In the circumstances, present petition is totally mis-conceived and by not disclosing this fact suffers from concealment of material fact.

Learned Additional Government Advocate further pointed out that in the writ petition, the name of the child has wrongly been referred to as Kunal Chaturvedi. The actual name of the petitioner is Rohan Chaturvedi as is apparent from the order dated 26.8.2017 (supra).

5. In rebuttal, learned counsel for the petitioner submits that he is not aware of the proceedings under Section 25 of Guardian and SectionWards Act before the Court below. He was not issued/served any notice and the order dated 26.8.2017 is an ex parte order.

6. Having considered rival contention(s) of learned counsel for the parties and having perused the entire material on record including the order dated 26.8.2017 (supra), I find that it is a case where the petitioner’s custody is sought by the mother from the custody of his father which has been given to the latter by order of the Court below.

7. Certainly, under SectionArticle 226 of the Constitution of India, the High Court is empowered to issue a writ in the nature of habeas corpus. However, to maintain/ file a habeas corpus petition, it is a condition precedent that there is a prima facie case of illegal detention or at least a suspicion in respect of such illegal detention. A writ of habeas corpus is available in all cases of wrongful deprivation of personal liberty. It may be issued against any person or authority who has illegally detained, arrested or confined the detenu or prisoner.

8. On a query of the Court, learned counsel for the petitioner could not place any material to establish illegal detention of Kunal Chaturvedi against his wishes.

9. In the case in hand, from the material available on record, it prima facie does not appear that the petitioner has been detained by respondent No.3 illegally. No material of any sort has been placed before this Court so as to establish that the petitioner Kunal Chaturvedi has been illegally detained against his wishes. The custody of the child has been delivered to the father Anil Kumar Chaturvedi by a judicial order passed by the Family Court. The petitioner has made out no case for holding that the respondent was illegally or improperly detaining the petitioner and that the petition does not mention any fact to prove that the custody of the child was illegal.

10. Contention of the petitioner?s counsel that before passing the order dated 26.8.2017 (supra) by the Family Court, no notice was given to him and the order is ex parte carries no weight for the reason that in spite of the notice/summon having been published in leading newspaper ‘Amar Ujala’, neither the respondents Meghna Chaturvedi and Rohan Chaturvedi appeared before the Court below, nor they filed any written statement. Finding no option except to proceed with the case to its logical end, the Family Court passed the order dated 26.8.2017 (supra).

11. There is another reason why the present petition in the nature of habeas corpus is not maintainable by this Court while sitting single. The Family Court has already passed an order dated 26.8.2017 (supra) in a proceeding under Section 25 of the Guardian and SectionWards Act. Thus, the writ of habeas corpus is not maintainable in this Court, before Single Judge.

12. For the reasons given above, no case is made out under SectionArt. 226 of the Constitution of India for issuance of a writ of habeas corpus. The petitioner has not made out any case for the purpose of entertaining the present habeas corpus petition.

13. Accordingly, the writ petition is dismissed with liberty to the mother to approach the appropriate forum for redressal of her grievance, if any.

Order Date :- 22.11.2019

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