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Manuj Sharma vs State Of U.P. And 8 Others on 12 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 02.04.2019

Delivered on 12.04.2019

HABEAS CORPUS WRIT PETITION No.82 of 2019

Manuj Sharma —- Petitioner

Vs

State of Uttar Pradesh Others —- Respondents

For Petitioner : Shri V P Srivastava, Senior Advocate

Shri J K Sisodia, Advocate

For Respondents/State : Shri Abhijeet Mukherjee, AGA

Sri Jayendra Sevada

Sri Syed Imran Ibrahim, Advocates

for respondent nos.5 to 7.

None for respondent nos.8 and 9.

Hon’ble Pritinker Diwaker, J.

Hon’ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J

1. As the pleadings are complete, with the consent of parties, this petition is being heard finally.

2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, seeking a writ of habeas corpus, inter alia, mentioning therein that petitioner Manuj Sharma is a husband of respondent no.7-Smt. Priya Sharma, their marriage was solemnized on 24.4.2008 at Agra and out of the wedlock, the couple has two issues, namely, Km. Shravya Sharma, aged about 8 1/2 years and Km. Tvisha, aged about 2 1/2 years. According to petitioner, respondent nos.5 and 6 are in illegal custody of their mother, respondent no.7, and are not in a position to think about their welfare. The petitioner has also prayed for issuance of a writ of mandamus commanding the respondents to provide legal custody of respondent nos.5 and 6 (minor children) to him.

3. Learned counsel for the petitioner, submits that respondent no.7 is living in adultery with respondent no.8 and as such, she is not taking care of respondent nos.5 and 6. The financial condition of the petitioner is much superior than that of respondent no.7 and, therefore, also, considering the welfare of children, they may be given in the custody of the petitioner. While referring to the various documents, an attempt has been made that respondent no.7 is not a responsible lady, a woman of loose character, and as such, she cannot take care of respondent nos.5 and 6. It has been pointed out that respondent nos.5 and 6 were admitted in a reputed School at Agra, but as respondent no.7 had left Agra, neither respondent nos.5 and 6 are attending the School, nor respondent no.7 is taking their proper care. Relying upon the judgments of the Supreme Court in Gohar Begum v. Suggi alias Nazma Begum1 and Syed Saleemuddin v. Dr Rukhsana Ors.2, it has been argued that paramount consideration should be ‘welfare of children’ and when the petitioner has succeeded in satisfying this Court that if the children are allowed to remain in the custody of respondent no.7, their welfare would be totally ignored and their future would be spoiled.

4. On the other hand, opposing the submissions of the petitioner, it has been argued on behalf of respondent no.7 that she and her two minor children were ill treated by the petitioner and his family members and respondent no.7 was literally ousted. Respondent no.7 had made several efforts to get the matter amicably settled, but the petitioner and his family members are adamant to harass her and they are making all sort of frivolous allegations against her, including that of assassinating her character.

Learned counsel further submits that respondent no.9-Archana Kumar is a best friend of respondent no.7, whereas respondent no.8-Sachit Kumar is a brother of Archana Kumar and it is they, who gave shelter to respondent no.7 during her difficult time and now allegations are being made against her that she is having illicit relation with respondent no.8. While referring to Annexure no.1 filed along with counter affidavit, learned counsel submits that on 22.12.2018, a detailed complaint was made to the Additional Director General of Police, copy of which was also sent to other police officials through e-mail and post mentioning therein about the ill-treatment being meted out to respondent no.7 and the attitude of the petitioner. He further submits that a writ of habeas corpus, in the facts and circumstances, is not maintainable and if the petitioner has any grievance, he ought to have approached the appropriate Court under the provisions of the Guardians and Wards Act.

5. We have asked specific question to the counsel for the petitioner, as to how the daughters of the petitioner can be said to be in unlawful custody of their mother (respondent no.7) and most importantly, when both the children are minor and they are in lawful custody of their mother, whether this Court can issue a writ of habeas corpus under the law.

6. Replying to the query of this Court, it has again been put forth by counsel for the petitioner that as welfare of the children is involved, and it is the petitioner, who can take proper care of his children, therefore, a writ of habeas corpus lies.

7. We have heard the parties at length.

8. Habeas corpus “ad subjiciendum” means “that you have the body to submit or answer” which is called as Festinum Remedium – A speedy remedy, which has been sought by the petitioner in this instant case.

9. Habeas Corpus is Latin for “you have the body”. The writ is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. It is sometimes described as the “great writ”. It is considered as a most expeditious remedy available under the law.

10. The meaning of the term habeas corpus is “you must have the body”. Halsbury in his Laws of England, 4th Edition, observed as follows: –

“The writ of habeas corpus ad subjiciendum which is commonly known as the writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from the unlawful or unjustifiable detention whether in prison or in private custody. It is a prerogative writ by which the queen has a right to inquire into the laws for which any of her subjects are deprived of their liberty.”

11. In Corpus Juris Secundum, the nature of the writ of habeas corpus is summarized thus: –

“The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designate time and place with the day and cause of his caption and detention to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf. ‘Habeas corpus’ literally means “have the body”. By this writ, the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the Anglo-Saxon Jurisprudence.”

12. In the Constitutional and Administrative Law by Hood Phillips and Jackson it was stated as under: – (Relied upon by the Supreme Court in the matter of Surinderjit Singh Mand and another v. State of Punjab and another3, to highlight the importance and significance of personal liberty, specially with reference to unlawful detention.)

“10. The legality of any form of detention may be challenged at common law by an application for the writ of habeas corpus. Habeas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant’s claim for freedom has been asserted frequently by judies (sic) and writers. Nonetheless, the effectiveness of the remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness of the courts to examine the legality of decision made in reliance on wide-ranging statutory provision. It has been suggested that the need for the “blunt remedy’ of habeas corpus has diminished as judicial review has developed into an ever more flexible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae.”

13. Lord Halsbury LC in Cox v. Hates4 held that “the right to an instant determination as to lawfulness of an existing imprisonment” is the substantial right made available by this writ.

14. Likewise in Barnardo v. Ford5 the writ of habeas corpus has been described as a writ of right which is to be granted ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a case and the return is not good and sufficient he is entitled to this writ as a matter of right.

15. In R. v. Secy. of State for Home Affairs6, it has been held that a person is not entitled to be released on a petition of habeas corpus if there is no illegal restraint. “The question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ cannot issue, if he is not, it must issue.”

16. Likewise in Cox v. Hakes7 it has been held that the writ of habeas corpus is an effective means of immediate release from unlawful detention, whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient.

17. A Constitution Bench judgment of the Supreme Court in the matter of Kanu Sanyal v. District Magistrate, Darjeeling and others8 traced the history, nature and scope of the writ of habeas corpus. It has been held by Their Lordships that it is a writ of immemorial antiquity whose first threads are woven deeply “within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence”. Their Lordships further held that the primary object of this writ is the immediate determination of the right of the applicant’s freedom and that was its substance and its end. Their Lordships further explaining the nature and scope of a writ of habeas corpus held as under: –

“The writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, “in the order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restrain”. But the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness. The essential and leading theory of the whole procedure is the immediate determination of the right to the applicant’s freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ, that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained.”

18. In the matter of Union of India v. Yamnam Anand M. alias Bocha alias Kora alias Suraj and another9,while explaining the nature of writ of habeas corpus, Their Lordships of the Supreme Court held that though it is a writ of right, it is not a writ of course and the applicant must show a prima facie case of his unlawful detention. Paragraph 7 of the report states as under: –

“7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it “the great and efficacious writ in all manner of illegal confinement”. The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.”

19. A writ of habeas corpus is not to be issued as a matter of course. Clear grounds must be made out for issuance of such writ. (See Dushyant Somal v. Sushma Somal10)

20. In the matter of Usharani v. The Commissioner of Police, Bangalore and others11, the writ of habeas corpus has been defined very lucidly as under: –

“The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the Writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that the legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India.

11. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words “habeas” and “corpus”. “Habeas Corpus” literally means “have his body”. The general purpose of these writs as their name indicates was to obtain the production of the individual before a Court or a Judge. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege of power or place can stand against it. It is a very powerful safeguard of the subject against arbitrary acts not only of private individuals but also of the executive, the greatest safeguard for personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by its own procedure. … In our country, it is this prerogative writ which has been given a constitutional status under Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary remedy available to a citizen of this country, which he can enforce under Article 226 or under Article 32 of the Constitution of India.”

21. Thus, the writ of habeas corpus is a process by which a person who is confined without legal justification may secure a release from his confinement. The writ is, in form, an order issued by the High Court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. If there is no legal justification for the detention, the person is ordered to be released. However, the production of the body of the person alleged to be unlawfully detained is not essential before an application for a writ of habeas corpus can be finally heard and disposed of by the court. {See: Kanu Sanyal (supra).}

22. In Nithya Anand Raghavan v. State of NCT of Delhi and others12, it has been observed by the Apex Court:

“44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling Ors., (2001) 5 SCC 247, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court. On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person’s freedom and his release when the detention is found to be unlawful.

45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemmuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247, has held that the principal duty of the Court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In the case of Mrs. Elizabeth (supra), it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court (see Paul Mohinder Gahun Vs. State of NCT of Delhi Ors., (2004) 113 Delhi Law Time 823, relied upon by the appellant). It is not necessary to multiply the authorities on this proposition.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.”

23. Further, in Syed Saleemuddin v. Dr. Rukhsana and Ors.13, it has been observed by the Supreme Court:

“11. From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court. Unfortunately, the Judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri M.N. Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children.”

24. Having considered the aforesaid judgments of the Supreme Court and the principles laid down in the aforestated 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 summarily. Such writ is available against any person who is suspected of detaining another unlawfully and the habeas corpus Court must issue it, if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ can be addressed to any person whatever – an official or a private individual – who has another in his custody.

25. In view of the principles of law laid down by various Courts, if facts of the present case are seen, it is apparent that the petitioner has failed to demonstrate that his two minor children are illegally detained by his wife (respondent no.7). The limited contention of the petitioner is about the welfare of his children, which according to his own assessment, can be better if children would be with him. We are afraid, this self-appreciated statement of the petitioner will not give him any benefit in the present case. The mere fact that the financial condition of the petitioner is superior than that of respondent no.7, does not give him any right for issuance of writ of habeas corpus. If financial position is the only criteria, then in every case, a person who is financially strong would claim custody of child. If a mother is struggling for her rights along with her children, even assuming that she is financially weak, she cannot be deprived of her children just because her husband is a moneyed man. The judgments relied upon by counsel for the petitioner are of no help to him. Even otherwise, in the case in hand, age of the second child of the petitioner and respondent no.7 is just about 2 1/2 years and, we do not wish to separate the small baby from her mother as well as her sister.

26. From the pleadings of the parties and after hearing the arguments, it appears that various allegations are levelled by the parties against each other. It further appears that the parties have not made any effort for amicable settlement and are approaching the Court by filing one case after another. We hope that some efforts would be made by the parties for amicable settlement and, according to us, that would be actual welfare of the children.

27. In view of the aforesaid, in our considered opinion, the petition has no substance, as no ground whatsoever has been made for issuance of writ of habeas corpus. Accordingly, we decline to exercise the jurisdiction for issuance of writ of habeas corpus.

28. The writ petition is, accordingly, dismissed. However, dismissal of writ petition shall not preclude the petitioner from seeking remedy available to him in law. Any observation made by this Court, while deciding this writ petition, shall not come in the way of either party.

Order Dated:12 April, 2019

RKK/-

(Pritinker Diwaker, J)

(Raj Beer Singh, J)

 

 

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