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Pooja Kashyap vs State Of H. P. & Ors on 29 December, 2023

Himachal Pradesh High Court

Pooja Kashyap vs State Of H. P. Ors on 29 December, 2023

Bench: Tarlok Singh Chauhan, Satyen Vaidya

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.WP No. 15 of 2023

.

Reserved on: 26.12.2023

Decided on: 29.12.2023
Pooja Kashyap …Petitioner

Versus
State of H. P. Ors. …Respondents

Coram:

of

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1 Yes.

For the Petitioner :

rt Mr. Atul Jhingan, Advocate.

For the Respondents : Mr. I. N. Mehta, Sr. Addl. A.G. with Ms.

Sharmila Patial and Mr. Navlesh Verma,
Addl. A.G. for respondents-State.

Tarlok Singh Chauhan, Judge

The instant petition has been filed for grant of the

following substantive reliefs:-

A) The Hon’ble Court may be pleased to issue a writ of

habeas corpus directing the respondents No. 1 to 5 to
produce the minor son of the petitioner, Master Adhrit,
before this Hon’ble Court.

B) The Hon’ble Court may be further pleased to direct the
respondents No. 1 to 3 authorities to take appropriate
action against respondents No. 4 and 5 for their illegal
acts.

2. It is averred that the petitioner was married to

respondent No. 4 on 30.11.2012 at village Jaswani, Tehsil and

District Bilaspur, H.P. The petitioner had accompanied
1
Whether reporters of the local papers may be allowed to see the judgment? yes

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2

respondent No. 4 (husband) to his matrimonial home at Nasik

and thereafter to his place of posting at Alwar. The relations

.

between the petitioner and respondents No. 4 (husband) and 5

(mother-in-law) were not cordial from the inception of marriage.

3. The petitioner gave birth to a male child (Adhrit) on

30.12.2013 but the situation became so unbearable that she

of
alongwith the infant had to be brought to her native place at

Ghumarwin from Nasik by her mother and maternal uncle.

4.
rt
The petitioner was constrained to approach the Court

under the Protection of Women from Domestic Violence Act

wherein apart from other reliefs she also claimed custody of the

minor child (Adhrit). The learned Trial Court vide order dated

08.05.2018 allowed the interim custody of the minor child to the

petitioner and at the same time allowed visitation right to

respondent No. 4.

5. The Respondent No. 4 assailed the order of the

learned Trial Court before the learned Sessions Judge, Bilaspur,

however, the appeal so filed was dismissed vide judgment dated

19.03.2019.

6. Thereafter, respondent No. 4 assailed both the

aforesaid orders by filing Criminal Revision No. 327 of 2019 and

even this revision petition was dismissed vide judgment dated

07.01.2022, by specifically observing that the child was in the

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3

custody of the mother when the same was taken away by

respondent No. 4. This Court also made it clear that the order

.

passed by the learned Magistrate would only amount to a

temporary custody as the final adjudication is to be made by the

competent Court under the Guardians and Wards Act, 1890, but

no proceedings thereunder have been initiated by respondent

of
No. 4.

7. It is further averred that after passing of the
rt
judgment by this Court on 07.01.2022, respondent No. 4 in

furtherance of a conspiracy came to Bilaspur on 16/17.03.2022

and apologised to the petitioner and her parents and offered to

take the petitioner and the child with him, with a promise to

mend his ways and take good care of them. The petitioner in an

endeavour to mend fences, agreed to accompanied respondent

No. 4 alongwith the minor child. Respondent No. 4 took them to

Jammu, where he was posted at that time. The petitioner

alongwith the minor (Adhrit) stayed with him at Jammu for about

one year but the behaviour of respondent No. 4 had not changed

much and he would often ill-treat and physically abuse her under

the influence of alcohol, but the petitioner tried to adjust and

endure in the hope that the child was able to get attention, love

and affection of both parents, but in vain.

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4

8. Respondent No. 4 joined an IIM Course at Mumbai

and left the petitioner and Adhrit with respondent No. 5 at his

.

permanent residence at Nasik for about six months. Thereafter,

respondent No. 4 came to Nasik after completing course and

physically abused the petitioner and forcefully turned her out of

house on 10.09.2023.

of

9. The petitioner sought refuge with some neighbours

and later shifted to Army Guest House alongwith her son. The
rt
petitioner was later forcibly taken to Sujata Birla Hospital at

Nasik by respondents No. 4 and 5 on 14.09.2023, where she was

deceitfully got administered some sedative medicines and the

minor child was surreptitiously and illegally taken away from her

custody.

10. Respondent No. 4 telephonically informed the

petitioner’s family at Bilaspur to take her away from the hospital

where she had been admitted. The petitioner’s brother and

paternal uncle rushed to Nasik to bring back the petitioner. They

tried to get in touch with respondents No. 4 and 5 but they did

not answer their calls. Respondents No. 4 and 5 locked the house

at Nasik and their whereabouts were not known to the petitioner.

The petitioner tried to find out the whereabouts of respondents

No. 4 and 5, but to no avail, constraining the petitioner to lodge a

30/12/2023 20:32:44 :::CIS
5

complaint with the Police at Nasik as well as Police Women Cell

at Nasik.

.

11. The petitioner came back to Bilaspur and thereafter

lodged a complaint at PS Bharari in Bilaspur, but the

whereabouts of respondents No. 4 and 5 and the minor child

(Adhrit) could not be ascertained. The police although received

of
the complaint, but lodged the FIR only on 17.11.2023. It is

further averred that mobile numbers of respondents No. 4 and 5
rt
though available but she is unable to contact them since her

mobile number has been blocked by them. The petitioner had

tried to call them from other numbers but they would disconnect

the phone as soon as they got to know that it is the petitioner

who is making the call.

12. It is in this background that the petitioner has filed

the instant petition for the grant of the reliefs as quoted above.

13. When the matter came up for consideration on

24.11.2023, we, after going through the petition and the

arguments addressed, were not even inclined to issue notice but

on the restricted and limited submissions of the learned counsel

for the petitioner that the petitioner is only interested to know

about the well being of the minor as also the whereabouts of

respondents No. 4 and 5, issued notice confined to officials-

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6

respondents No. 1 to 3, and directed them to file a status report

by the next date of hearing.

.

14. When the matter came up for consideration on

01.12.2023, the investigating agency filed the status report but

we are not satisfied with the progress made therein and directed

the I.O. to remain present alongwith the relevant record on

of
05.12.2023. It is thereafter that the I.O. filed his report and we

recorded satisfaction with regard to the progress made so far.

rt
However, we directed the State of file a fresh status report on

19.12.2023, which was accordingly done by the State and when

the matter came up for consideration on 19.12.2023, the learned

counsel for the petitioner sought a week’s time to go through the

same.

15. As observed above, the limited prayer of the

petitioner at the time when the notice was issued to know the

whereabouts of minor child, her husband respondent No. 4 and

her mother-in-law respondent No. 5, but now the petitioner has

argued that the custody of the minor be resorted to her.

16. In the status report that was filed on 19.12.2023, it

has been stated that a team headed by ASI Ravi Guleria

comprising of H. C. Vikas Sharma No. 98 and L.C. Manju No. 236

was constituted to find out the whereabouts of the minor in

compliance to the direction passed by this Hon’ble Court and

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7

also in further investigation to FIR No. 131/23 lodged by the

petitioner on 17.12.2023, under Sections 498A, 323 and 34 IPC,

.

Police Station Bhrari.

17. The police team reached Police Station Deo Lali,

camp at Nasik, where they apprised the local police of the writ

petition as also the FIR and copies thereof were also given to

of
them with a further request to cooperate in the matter. The

Commissioner of Police, Nasik vide his letter No. 3165, dated
rt
04.12.2023, directed the local police to cooperate in the

investigation. With the cooperation of the local police, the police

team went to Army Public School Deo Lali, where the son of the

petitioner was stated to be studying and on enquiry, it was found

that the minor child had been enrolled in the school vide

Admission No. 20193, but had not been attending school after

04.09.2023. Whereas as per the report dated 11.09.2023, the

petitioner had alleged that her husband had given beating,

meaning thereby, that prior to 11.09.2023, the petitioner and

respondent No. 4, even on 04.09.2023 had been residing

together and the minor had not been going to school.

18. Thereafter, the police team associated mother of

respondent No. 4 i.e. respondent No. 5 in investigation and

recorded her statement, in which she stated that respondent No.

4 was doing some private job, but she was not aware about the

30/12/2023 20:32:44 :::CIS
8

company. She also stated that her son respondent No. 4 residing

with his minor son (Adhrit) in a rented premises and he came

.

home every Friday and returned back on Sundary alongwith his

minor son Adhrit. Respondent No. 5 was thereafter released on

bail under Section 41(1)(A) Cr.P.C. The local police certified the

character of respondent No. 5 to be good and stated that there

of
was no other case lodged against her.

19. Thereafter, respondent No. 4 was contacted over the
rt
phone and he informed that he cannot come to Nasik. The

respondent No. 4 was then directed to get a whatsapp call made

from the minor to the petitioner. During this call, the petitioner

informed the minor that she had come alongwith the police to

take him, upon which respondent No. 4 took the mobile and said

that the child is perfectly all right, safe and sound and after this,

informed that he could let the petitioner meet with minor child

Adhrit at Vamukaam Malun Toll Post. Police Team stated that they

would be reaching there by taxi and he should meet them. After

this respondent No. 4 cut the conversation.

20. Thereafter, the police team hired a taxi and travelled

about 170 kms. and reached Mulun Toll Post and contacted with

respondent No. 4 over his mobile but his mobile was found to be

switched off. It was then the service provider was contacted and

asked to give location but it was informed that since the mobile

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9

had been switched off, therefore, the location could not be

available. The police team thereafter searched for respondent

.

No. 4 in the area, but he could not be found, because of which

the police team was then given orders to remain in and around

the Mulun Toll Post for which they had stayed in a hotel.

21. Next morning of 05.12.2023, the police team

of
reached back at Deo Lali Camp and started further investigation.

Respondent No. 4 was repeatedly contacted over telephone and
rt
was even messages were repeatedly given on whatsapp to

associate himself with the investigation but the respondent

mobile found to be switched off.

22. Later on 05.12.2023, respondent No. 4 gave a

message to the police team on the whatsapp and stated that he

had to leave for Bangalore for some urgent work and for this

reason he could not join the police investigation. On repeated

whatsapp conversation, finally respondent No. 4 stated that he

would get the minor before the police team provided the

petitioner is not with them, because she would fight and tried to

impress upon the child, so that she can take the minor child

away. Upon this, respondent No. 4 was informed that the

petitioner would be made to stay in the hotel, upon which,

respondent No. 4 agreed to get the child available at 10:00 a.m.

on 07.12.2023 at Railway Station Kalyan Junction, Mumbai.

30/12/2023 20:32:44 :::CIS
10

23. Thereafter, the police team went to the Kalyan

Junction on 07.12.2023, where respondent No. 4 was present

.

alongwith his minor child and was informed about the pendency

of the writ petition and orders passed thereupon and also the

FIR. The statement of respondent No. 4 was recorded wherein he

disclosed that his wife i.e. petitioner was suffering from some

of
mental disease, for the treatment whereof she was admitted at

Sujata Birla Hospital on 14.09.2023, but on 16.09.2023, brother
rt
and uncle of the petitioner came and got her discharged and

took her to village Jaswani. He further disclosed that he has old

mother, who is staying at the permanent address because of

which he takes the minor to his work-place where he is imparted

tuition. The local police certified the character of respondent No.

4 and stated that apart from the instant case there is no other

case registered against him and the status report has been

summed up as under:-

It is requested to the Hon’ble High Court that the

respondent No. 4. Somnath Palde, has retired from Indian
army on voluntary retirement as a lieutenant Colonel
since, September, 2023 and is a permanent resident of
House No. C-2, Vaishnav Pushp, Sansari Village, Devlali,
Nasik, Mumbai and living with her mother (Tai) namely
Smt. Sushila Sant Palde, respondent No. 5, and child Adrit
Somnath. Respondent No. 4, Somnath Palde is presently
working as a Senior Manager in the Event Management
Company, headquarter at 402-B, Druv Building Gulmohar
Road Juhu, Mumbai and having mobile No. 75881-19952

30/12/2023 20:32:44 :::CIS
11

and works from home. In case of any event organized, he
visits the place occasionally as well. The Child, Adrit

.

Somnath is presently residing with his father, Somnath

Palde, deferant No.4, in a rented house i.e. flat No. 1302 L-
Varaslona Puranik City, Thane (Mumbai). whose owner is
Neeraj Yadav having mobile No. 98903-26002 and doing

well. The child used to come with his father to his own
residential house situated at Sansari village Devlali, Nasik
on every Friday and goes back with his father on Sunday.

of
The child, Adrit Somnath has been found to be enrolled
against admission No. 20193 in class five in Army Public
School Devlali, Nasik. But, as per the certificate issued by
rt
the School, the child, Adrit Somnath has not been found to
come to School since, 4th September, 2023, who is

presently found to be taking education through tuition,
whereas, according to the petitioner Pooja Somnath Palde,
she was beaten up by her husband on 11.09.2023, but

before 11.09.2023, both husband and wife were living
together till 04.09.2023, and even during their stay
together, the child had not been going to School since,

04.09.2023. respondent No.4, Somnath Palde, and
defendent No. 5. Smt. Sushila Sant Palde have been

associated in the inquiry or investigation at Railway
Station Kalyan Junction, Mumbai and Police Station Devlali

Camp Nasik, respectively and the police team has made
face to face interaction with the child, Adrit Somnath at
Railway Station Kalyan Junction, Mumbai, the child is doing
well.

24. Thus, what would be clearly evident from the

aforesaid narration of fact is that the cause of action, if any, in

favour of the petitioner arose at Nasik i.e. in th State of

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12

Maharashtra and no cause of action or part thereof has arisen

within the territorial jurisdiction of this Court.

.

25. Article 226 of the Constitution of India reads as

under:-

226. Power of High Courts to issue certain writs.

(1) Notwithstanding anything in article 32, every High
Court shall have power, throughout the territories in

of
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
rt
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or

any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions,

orders or writs to any Government, authority or person
may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the

cause of action, wholly or in part, arises for the exercise of

such power, notwithstanding that the seat of such
Government or authority or the residence of such person
is not within those territories.

(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a
petition under clause (1), without-

(a) furnishing to such party copies of such petition
and all documents in support of the plea for such
interim order; and

30/12/2023 20:32:44 :::CIS
13

(b) giving such party an opportunity of being heard,
makes an application to the High Court for the

.

vacation of such order and

furnishes a copy of such application to the party in
whose favour such order has been made or the
counsel of such party, the High Court shall dispose of

the application within a period of two weeks from the
date on which it is received or from the date on
which the copy of such application is so furnished,

of
whichever is later, or where the High Court is closed
on the last day of that period, before the expiry of
rtthe next day afterwards on which the High Court is
open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or,

as the case may be, the expiry of the said next day,
stand vacated.

(4) The power conferred on a High Court by this article

shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of article 32.

26. Even though there can be no quarrel with the

position in law that habeas corpus petition seeking custody of a

minor child is maintainable under Article 226 of the Constitution

of India, however, in the present case, it must be observed that

the Court that exercises its territorial jurisdiction over the minor

child (Adhrit) will be the Court where latter ordinarily resides in

terms of the provisions of the Family Court Act, 1984 and, in

particular, provisions of Section 7(g), which reads as under:-

7. Jurisdiction-(1) subject to the other provisions of this Act, a Family
Court shall-

30/12/2023 20:32:44 :::CIS
14

(a) xxxxx

(b) xxxxx

.

(c) xxxxx

(d) xxxxx

(e) xxxxx

(f) xxxxx

(g) a suit or proceeding in relation to the guardianship of the person or
the custody of, or access to, any minor.”

of

27. A bare reading of the above provision clearly

specifies that where the Family Court has been established for
rt
any area, no District Court or any subordinate Civil Court shall in

relation to such area have or exercise any jurisdiction in respect

of any suit or proceedings referred to, in the explanation which

includes Clause (g) extracted above.

28. Section 9 of the Guardians and Wards Act, reads as

under:-

Section 9 in The Guardians and Wards Act, 1890

9. Court having jurisdiction to entertain application.–

(1) If the application is with respect to the guardianship of
the person of the minor, it shall be made to the District
Court having jurisdiction in the place where the minor
ordinarily resides.

(2) If the application is with respect to the guardianship of
the property of the minor, it may be made either to the
District Court having jurisdiction in the place where the
minor ordinarily resides or to a District Court having
jurisdiction in a place where he has property.

30/12/2023 20:32:44 :::CIS
15

(3) If an application with respect to the guardianship of
the property of a minor is made to a District Court other

.

than that having jurisdiction in the place where the minor

ordinarily resides, the Court may return the application if
in its opinion the application would be disposed of more
justly or conveniently by any other District Court having

jurisdiction.

of

29. The aforesaid section deals with jurisdiction of the

Court to entertain application, which makes it clear that

application in respect of guardianship of a person of a minor
rt
requires to be filed, where the minor ordinarily resides, the

jurisdiction of a Court is determined by law, not by consideration

of expediency or convenience or choices of party, who invoke

jurisdiction of such Court.

30. The Hindu Minority and Guardians Act, 1956 as also

the Guardians and Wards Act, 1890 are general and Central Acts.

The Family Courts Act, 1984, though a Central Act, is a special

Act and thereby will have a precedence over other Acts. The

Family Courts are established with a view to promote conciliation

in, and secure speedy settlement of, disputes relating to

marriage and family affairs and for matters concerned therewith.

As the Family Courts Act, 1984, excludes the jurisdiction of the

District Courts in respect of proceedings relating to the

guardianship of a person or custody of, or access to, any minor

30/12/2023 20:32:44 :::CIS
16

the forum for application would be the Family court established

for the area where the minor resides.

.

31. We may at this stage fruitfully refer to the judgment

of the Hon’ble Supreme Court in Nawal Kishore Sharma vs.

Union of India (2014) 9 SCC 329, wherein it was observed as

under:-

of

19. Regard being had to the discussion made
hereinabove, there cannot be any doubt that the question
whether or not cause of action wholly or in part for filing a
rt
writ petition has arisen within the territorial limit of any
High Court has to be decided in the light of the nature and

character of the proceedings under Article 226 of the
Constitution. In order to maintain a writ petition, the
petitioner has to establish that a legal right claimed by

him has been infringed by the respondents within the
territorial limit of the Court’s jurisdiction.

32. In view of the law laid down in Nawal Kishore

Sharma’s case (supra), with regard to the jurisdiction to entertain

a writ petition including a writ of habeas corpus, we are not

satisfied from the facts pleaded in support of the cause of action

in the present case that these facts constitute that a cause of

action has arisen in favour of the petitioner within the territorial

jurisdiction of this Court, so as to empower us to decide a

dispute, which has admittedly arisen outside the jurisdiction of

this Court.

30/12/2023 20:32:44 :::CIS
17

33. In the instant case, it is an admitted position that no

part of the claim falls within the territorial jurisdiction of this

.

Court, as the child even as per the petitioner has been residing

outside the territorial jurisdiction of this Court on and w.e.f.

16/17th March, 2022. The act of deprivation of the minor’s

custody and residence thus, arose at Nasik in the State of

of
Maharashtra. The petitioner has also admittedly filed a complaint

in this regard with the Police authority as well as Police Women

Cell at Nasik.

rt

34. In view of the aforementioned reasons, we are not

inclined to grant a writ of habeas corpus as prayed for by the

petitioner, since this Court has no territorial jurisdiction to

entertain the present petition as no cause of action or part

thereof has arisen within the territorial jurisdiction of this Court

so as to empower this Court to decide a dispute, as the minor

child (Adhrit), whose custody is sought for, admittedly resides in

Nasik, in the State of Maharashtra, beyond the territorial

jurisdiction of this Court. Needless to state that the petitioner is

at liberty to approach competent court exercising territorial

jurisdiction of the subject matter of the present proceedings. We

further clarify that we have not expressed any opinion on the

merit of the case.

30/12/2023 20:32:44 :::CIS
18

35. Before parting, we would like to place on record our

appreciation for the valuable assistance rendered by the

.

Commissioner of Police, Nasik and local police team of Deo Lali

for rendering necessary help to the police team of Police Station

Bhrari, and we would further place on record our appreciation for

the painstaking efforts made by the police team headed by ASI

of
Ravi Guleria and comprising of H.C. Vikas Sharma No. 98 and L.C.

Manju No. 236, in submitting its report in shortest possible time
rt
to this Court. Let this appreciation be entered by the quarter

concerned in the service records of the aforesaid officer/officials.

36. The petition stands dismissed, so also the pending

applications, if any.

Let a copy of this order be sent to the Director

General of Police, Maharashtra and Director General of Police,

H.P. for compliance and necessary action.

(Tarlok Singh Chauhan)

Judge

(Satyen Vaidya)
th
29 December, 2023 Judge
(sanjeev)

30/12/2023 20:32:44 :::CIS

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