R/SCR.A/5659/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5659 of 2019
MANISH S/O NATVARLAL VAGHELA
Versus
STATE OF GUJARAT
Appearance:
MR. RAJAN J PATEL(6775) for the Applicant(s) No. 1
N J MEVADA(9058) for the Applicant(s) No. 1
CHIRAG J BRAHMBHATT(8070) for the Respondent(s) No. 6,7
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 4,5
MR DEVANG VYAS(2794) for the Respondent(s) No. 9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 8
MR RONAK RAVAL, APP (2) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2,3
SERVED BY RPAD (N)(6) for the Respondent(s) No. 10
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 23/12/2019
ORAL ORDER
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. By filing this petition, the petitioner has prayed as under:-
“A. Be pleased to issue a writ in the nature of Habeas
Corpus and/or any other appropriate writ, commanding
the respondents for the production of the body of The
Corpus-Minor Vaidehi in this court and be set at liberty.
B. Be further pleased to pass an appropriate order to
take the DNA sample of The Corpus-Minor Vaidehi and
The petitioner herein to identify The Corpus-Minor
Vaidehi in its true manner in the larger interest of justice
and to bring the actual facts on the notice of this Hon’ble
court.
C. Be further please to pass an appropriate order to
take the Res. No.4 to 7 under observation and to take
The Corpus-Minor Vaidehi away from the Res. No.4 to 7,Page 1 of 12
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R/SCR.A/5659/2019 ORDERlooking to the safety of The Corpus-Minor Vaidehi with
immediate effect until the Final order is passed in the
larger interest of justice.
D. Any other order or orders and/or directions as your
lordships may deem fit and proper may pleased be
passed.”
2. The short facts leading to the filing of the present petition
are that the petitioner and respondent no.4 herein got married
as per Hindu rites on 14.10.2015. Since the petitioner and
respondent no.4 had married against the will of their family
members, they were living away from their family members.
Out of the wedlock, they were blessed with a baby girl viz.
Vaidehi on 13.12.2016. Thereafter, some disputes started
between them and, ultimately, marriage of the petitioner and
respondent no.4 was dissolved by executing an agreement for
dissolution of marriage on 15.6.2017. At that time, though
Minor-Vaidehi was just six months old and was on breast
feeding, she was in need to be kept with the mother, however,
respondent no.4 was not ready to to take care of her and,
therefore, custody of minor-Vaidehi was given to the petitioner
herein. It is also stated that unwillingly, on 12.7.2017, the
petitioner was compelled to sign Memorandum of
Understanding dated 12.7.2017, under which the custody of
the minor child was given to respondent no.4. However, the
petitioner challenged such Memorandum of Understanding by
filing CMA No.18 of 2018 before the Family Court, Ahmedabad.
After execution of Memorandum of Understanding, respondent
no.4 and Minor-Vaidehi disappeared and though the petitioner
tried to find them out, they could not be traced. Therefore, the
petitioner filed a complaint with police on 8.11.2017. Inspite of
this, since they could not be searched, the petitioner filed an
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application under Section 97 of Code of Criminal Procedure
before learned Additional Metropolitan Magistrate,
Ahmedabad, being Criminal Misc. Application No.10549 of
2017. In the said proceedings, respondent no.4 filed her
affidavit, however, facts regarding handing over the minor-
Vaidehi to Orphanage were suppressed. Said application was
rejected by the learned Magistrate on 18.1.2018.
3. On 23.1.2018, the petitioner filed an application being
CMA No.18 of 2018 before Family Court, Ahmedabad under the
provisions of the Guardian and SectionWards Act, 1890 for the
custody of minor-Vaidehi, with an application for interim relief
at Exh.5. However, application Exh.5 came to be rejected by
the Family Court on 21.2.2019, therefore, the petitioner filed
Special Civil Application No.6045 of 2019 before this Court. In
the said petition, respondent no.4 herein, mother of minor-
Vaidehi, filed an affidavit and declared that the custody of
Vaidehi is handed over to respondent nos.6 and 7 herein
without consent of the petitioner herein. Therefore, the
petitioner has filed present petition.
4. Mr.Rajan Patel, learned advocate for the petitioner
submitted that admittedly minor-Vaidehi is the daughter of the
petitioner and respondent no.4. On 12.7.2017, by
Memorandum of Understanding custody of minor was given to
respondent no.4. He further submitted that there were various
proceedings and ultimately, respondent no.4 disclosed for the
first time before this Honourable Court that custody of the
child is already handed over to the Children Welfare
Committee by her, without consent of the petitioner. He
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submitted that even the respondent nos.6 to 9 have not taken
any lawful action to find out the father of minor-Vaidehi. He
submitted that it is the duty of the Committee to restore the
child with father when the respondent no.4 has fraudulently
deprived the petitioner of the parenthood right of the
petitioner.
4.1 He submitted that the corpus is under illegal custody of
third party-respondents inspite of the fact that her father is
ready and willing to take her custody. He also submitted that it
is in the interest of minor child to hand over her custody to the
petitioner, as he is the father of the minor-Vaidehi. He
submitted that the petitioner has filed different proceedings
before different Courts for getting custody of his minor
daughter, however, till today he did not get the custody of
minor. He also submitted that when the mother has declared
herself as an incapable person to take care of the corpus,
petitioner is the only person, being father of minor, to take
care of the corpus.
4.2 He submitted that the petitioner herein being biological
father and one of the parents of the child, corpus cannot be
said to be orphan child as per Section 2, Sub-Sectionsection 42 of the
Juvenile Justice (Care and SectionProtection of Children) Act, 2015. He
submitted that as per Section 35 of the Act read with Rule 7,
sub-rule 5, 6 and Rule 6 of the Rules, respondent no.4 cannot
surrender the child without the consent of the petitioner and, if
it is done, necessary steps under Rule 6 of the Rules are
required to be taken to trace out the biological father, which is
not done in the present case. He submitted that only when the
child is abandoned; when it is not possible to trace out the
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parents or the parents are not willing to take the custody of
the child, then only the alternative of finding adoptive parents
for the child is available. He submitted that the proceedings
filed before the Family Court and Special Civil Application filed
before this Court are not efficacious remedies and, therefore,
the petitioner has filed present petition praying for a writ of
habeas corpus. He also invited the attention of the Court to the
provisions of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015, and submitted that this Court has power
to issue writ of habeas corpus.
4.3 He further submitted that respondent no.4 herein has
surrendered the child by execution of Deed of Surrender,
without consent of the petitioner, to respondent no.8 and
without conducting any inquiry, respondent no.8 has filed its
report, which is illegal as per the provisions of the Adoption
Regulation, 2017. He has relied upon various provisions of
Juvenile Justice (Care and SectionProtection of Children) Act, 2015 and
the Rules framed thereunder to submit that act of handing
over custody of child to the respondent authorities is illegal
and the respondent authorities have also not followed the
procedure prescribed under the law in the present case.
4.4 In support of his submissions, he relied upon following
decisions.
(i) SectionLakshmi Kant Pandey v. Union of India, reported in Laws
(SC) 1984 2 8.
(ii) SectionKamla Devi v. State, reported in Laws (HPH) 1986 7 3.
(iii) SectionDeepak Mohanty v. Superintendent of Police, Cuttak and
Others, reported in Laws (Ori) 2016 8 32.
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5. On the other hand, Mr.Bhunesh Rupera, learned advocate
appearing for respondent nos.4 and 5 has denied all the
allegations made against his client. He submitted that this
petition is not maintainable as the corpus is not under illegal
detention of anyone. He also submitted that even if the
allegations made by the petitioner are considered to be true,
this is a case of child custody and, for that purpose, the
petitioner is having alternative remedy and this petition for
seeking writ of habeas corpus may not be entertained. He
submitted that the petitioner can ask the custody of minor
Vaidehi by way of adaptation, after completing necessary
formalities. He submitted that the petitioner had married with
respondent no.4 by saying that he is unmarried though he was
already married. He submitted that therefore, since the
beginning the petitioner had cheated respondent no.4. He has
denied all the allegations levelled against respondent no.4. He
also submitted that respondent no.4 was deserted by the
petitioner and since the respondent-wife is not highly qualified,
she could not earn anything and ultimately she decided to
donate her daughter Vaidehi to Orphan House. In view of all
these and, particularly, in view of the fact that alternative
remedy is available, he prayed to dismiss present petition.
6. Learned APP appearing for the Respondent-State has also
raised objection with regard to the maintainability of the
petition. He submitted that the corpus is not under any illegal
confinement, therefore, this petition with a prayer for issuance
of writ of habeas corpus is not maintainable. He also submitted
that Juvenile Justice (Care and SectionProtection of Children) Act, 2015
provides complete mechanism for custody, care and protection
of a child and the Child Welfare committee is competent to
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pass order in this regard and if there is any grievance against
such order, remedy of appeal is also available. He, therefore,
submitted that alternative remedy is available to the petitioner
and, present petition may not be entertained. In support of his
submissions, he has relied upon following decisions.
(i) Saihbha Ali v. State of Maharastra, reported in 2003 (7)
SCC 250
(ii) Prabhasing v. State of Jharkhand reported in 2005 (3)
SCC 551.
(iii) SectionVeena Kapoor v. Varindra Kumar Kapoor reported in 1981
(3) SCC 92.
(iv) Nil Ratan Kunda v. Abhit Kuddy reported in 2008 (9) SCC
413.
7. Mr.Chirag Brahmbhatt, learned advocate appearing for
respondent nos.6 and 7 has submitted that present petition
seeking writ of habeas corpus is not maintainable as the
corpus is not under any illegal confinement. He submitted that
Matruchaya Orphanage Home is a registered child care
institution as per Section 41 of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2015 and they are not taking any
grant from the State or Central Government and it is run on
charity. He also submitted that as per Section 30 (7) of the Act,
Child Welfare Committed has power to hand over the custody
of a child. He also submitted that the Act provides complete
mechanism for custody, care and protection of a child and the
Child Welfare committee is competent to pass order in this
regard and if there is any grievance against such order,
remedy of appeal is also available. He also submitted that his
clients have also got an order from the concerned District
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Court before giving the custody of the child to adoptive
parents and, therefore, it cannot be said that there is any
illegality committed by the respondents. He, therefore,
submitted that alternative remedy is available to the petitioner
and, present petition may not be entertained.
8. Mr.Devang Vyas, learned advocate appearing for
respondent no.9 submits that the present petition is not
maintainable as an alternative efficacious remedy is available
to the petitioner. He submitted that the Act provides complete
mechanism for custody, care and protection of a child and the
Child Welfare committee is competent to pass order in this
regard and the committee has followed rules and regulations
in the present case and after getting order from the concerned
District Court, child is given to its adoptive parents. Therefore,
the procedure prescribed under the law is followed in present
case and it cannot be said that there is any illegality or the
child is under illegal detention. He, therefore, prays to dismiss
present petition.
9. We have heard learned counsel appearing for the parties
and perused the material available on record. In this petition,
the petitioner has prayed for a writ of habeas corpus in respect
of minor-Vaidehi. As per Section 30, sub-section (7) of the
Juvenile Justice (Care and SectionProtection of Children) Act, 2015,
Child Welfare Committee has power to give or hand over the
custody of a child and the Act provides the procedure to be
followed for such adoption or custody. In the present case, the
petitioner and respondent no.4 herein got married as per
Hindu rites on 14.10.2015. They were blessed with a baby girl
viz. Vaidehi on 13.12.2016. Thereafter, some disputes started
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between them and, ultimately, marriage of the petitioner and
respondent no.4 was dissolved by executing an agreement for
dissolution of marriage on 15.6.2017. Thereafter, a
Memorandum of Understanding dated 12.7.2017 was executed
whereby the custody of the minor-Vaidehi was handed over to
her mother-respondent no.4. Thereafter, it seems that the
respondent no.4 has voluntarily abandoned her child Vaidehi
and as per Schedule 5 and Section 35 of the Act had executed
“Deed of Surrender” of the child. Along with it, she had also
placed consent agreement executed on 17.12.2017 and since
the petitioner had separated from her, she was having the
responsibility of minor-Vaidehi. In view of the documents
placed on record, necessary procedure was followed and lastly
an order for adoption of the child was passed by the District
and Sessions Court.
10. At this juncture, it is relevant to refer to the provisions of
Section 101 and Section 102 of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2015, which provides for appeal
and revision, which reads as under:-
“101. (1) Subject to the provisions of this Act, any person
aggrieved by an order made by the Committee or the
Board under this Act may, within thirty days from the
date of such order, prefer an appeal to the Children’s
Court, except for decisions by the Committee related to
Foster Care and Sponsorship After Care for which the
appeal shall lie with the District Magistrate:
Provided that the Court of Sessions, or the District
Magistrate, as the case may be, may entertain the
appeal after the expiry of the said period of thirty days, if
it is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time and such
appeal shall be decided within a period of thirty days.
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(2) An appeal shall lie against an order of the Board
passed after making the preliminary assessment into a
heinous offence under section 15 of the Act, before the
Court of Sessions and the Court may, while deciding the
appeal, take the assistance of experienced psychologists
and medical specialists other than those whose
assistance has been obtained by the Board in passing
the order under the said section.
(3) No appeal shall lie from,–
(a) any order of acquittal made by the Board in respect
of a child alleged to have committed an offence other
than the heinous offence by a child who has completed
or is above the age of sixteen years; or
(b) any order made by a Committee in respect of finding
that a person is not a child in need of care and
protection.
(4) No second appeal shall lie from any order of the Court
of Session, passed in appeal under this section.
(5) Any person aggrieved by an order of the Children’s
Court may file an appeal before the High Court in
accordance with the procedure specified in the Code of
Criminal Procedure, 1973.
102. The High Court may, at any time, either on its own
motion or on an application received in this behalf, call
for the record of any proceeding in which any Committee
or Board or Children’s Court, or Court has passed an
order, for the purpose of satisfying itself as to the legality
or propriety of any such order and may pass such order
in relation thereto as it thinks fit:
Provided that the High Court shall not pass an order
under this section prejudicial to any person without
giving him a reasonable opportunity of being heard.”
11. It is pertinent to note that the allegations of the petitioner
are regarding non-compliance of various provisions of the Act
and Rules. Against this, the Child Welfare Committed has came
with a case that after following procedure and getting order
from the Court, it has given the child to adoptive father.
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Therefore, when the child has been given in adoption by the
order of the Court to adoptive parents, then that act cannot be
treated as an illegal act of granting custody of minor. Even if
there is lack of following due procedure under the Act and
Rules by the Child Welfare Committee that can be agitated by
the petitioner under the provisions of appeal/revision, as
referred to above by taking out separate proceedings. When
there is an efficacious alternative remedy available, writ of
habeas corpus cannot be issued especially when the Child
Welfare Committee has got necessary orders from the Court
before handing over the custody of minor to adoptive parents.
12. On perusal of the reliefs sought for by the petitioner, it
appears that he has prayed for relief of DNA test of minor. This
Court fails to understand as to why the petitioner wants DNA
test of the minor child and it reflects that the petitioner has
some suspicion regarding the paternity of the child.
13. Having considered the aforesaid judgments of the
Supreme Court and the principles laid down in various cases
for grant of writ of habeas corpus, it appears that the condition
precedent for instituting a petition seeking writ of habeas
corpus is the person for whose release, the writ of habeas
corpus is sought, must be in detention and he must be under
detention by the authorities or by any private individual. It is
his detention which gives the cause of action for maintaining
the writ of habeas corpus. If the allegations in the writ of
habeas corpus read as a whole do not disclose the detention,
in other words, if there is no allegation of illegal detention, the
writ petition seeking writ of habeas corpus is liable to be
rejected. In view of the principles of law laid down by various
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Courts, if facts of the present case are seen, it is apparent that
the petitioner has failed to demonstrate that minor-Vaidehi is
illegally detained by anyone. The judgments relied upon by
counsel for the petitioner are of no help to him.
14. Considering the facts on record, the corpus is not under
any illegal confinement, therefore, this petition with a prayer
for issuance of writ of habeas corpus is not maintainable. Not
only that Juvenile Justice (Care and SectionProtection of Children) Act,
2015 provides complete mechanism for custody, care and
protection of a child and the Child Welfare committee is
competent to pass order in this regard and if there is any
grievance against such order, remedy of appeal is also
available. In view of this, the petitioner is having alternative
remedy and this petition with a prayer to issue writ of habeas
corpus is not maintainable. Therefore, present petition is
dismissed.
15. It is clarified that this Court has not gone into the merits
of the case and whatever observations herein above are made
is only for the purpose of deciding the maintainability of the
petition and the observations made herein above will not be
construed as opinion of this Court on merits. The petitioners
can avail legal remedy as may be available under the law. If
the petitioner pursue such remedy, the observation of this
Court made herein above will not come in his way before any
other forum.
(S.R.BRAHMBHATT, J)
(A. P. THAKER, J)
R.S. MALEK
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