HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 14
Case :- HABEAS CORPUS No. – 26992 of 2019
Petitioner :- Master Om Srivastava @ Aditya Thru. Father Neera Srivastava
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. Ors.
Counsel for Petitioner :- Vaibhav Misra,Pragya Nand Rai
Counsel for Respondent :- G.A.,Aroz Ahmad Khan
Hon’ble Irshad Ali,J.
Counter affidavit filed today on behalf of respondent no. 5 and 6 is taken on record.
In pursuance of order passed on 23.10.2019 by this Court, the petitioner and respondent no. 5 are present before this Court along with the detenue Master Om Srivastava @ Aditya.
Respondent no. 5 Smt Purnima Srivastava does not dispute that she was married with Shri Neeraj Srivastava and now she has decided to divorce him and in this regard in the Court of Principle Judge, Family Court Karkarduma, Delhi she has filed divorce petition against him under Section 13(1)(ia) of the Hindu Marriage Act, 1955. She further made statement before this Court that Master Om Srivastava @ Aditya has not been detained illegally against his wishes. I am mother and he is residing with me. She has further stated that she is living in relationship with Shahim and he is taking care of her day to day affairs.
In view of the fact that she has finally decided to divorce Shri Neeraj Srivastava, husband and as per her statement Master Om Srivastava @ Aditya is residing with him, habeus corpus petition cannot be maintained.
SectionArticle 226 of the Constitution of India empowers the High Courts to issue a writ in the nature of habeas corpus. In 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 detenue or prisoner.
In the present case, as referred to above, the petitioner has stated that he has not been detained by his mother. He is living with his mother at his free will. In the circumstances, the ground on the basis of which a petition for habeas corpus can be filed is lacking in the present case.
In case the petitioner want custody of the child he has remedy to approach the court dealing with the matter under the provisions of Guardians and SectionWards Act before the appropriate court.
Accordingly, in view of the observations made above, this habeas corpus petition is finally disposed off.
Order Date :- 21.11.2019