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Roshni Choubey vs Subodh Gautam on 5 March, 2019

1 WP No.2991/2019

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
DIVISION BENCH : HON’BLE SHRI JUSTICE S. C. SHARMA
HON’BLE SHRI JUSTICE VIRENDER SINGH
Writ Petition No.2991/2019

Roshini Choubey

vs.

Subodh Gautam and others

Counsel for the Parties : Mr Vivek Dalal, learned counsel for
the petitioner.
Mr Sunil Jain, Sr. Counsel with
Mr Kushagra Jain, learned counsel
for the respondent No.1.
Mr R.S. Chhabra, Additional
Advocate General for the respondent
Nos. 2, 3 and 4 .

Whether approved for reporting : Yes

Law laid down : Article 226 – Habeas Corpus –
Writ against husband for illegal
custody of child, can be issued.
Child taken away from the wife’s
legal custody and, therefore, a
Writ of Habeas Corpus can be
issued. The welfare of the child
is of paramount importance.

Significant paragraph numbers : 8 to 21
JUDGMENT

(Delivered on this 5th day of March, 2019)

(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
Rashmi
2 WP No.2991/2019

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
WP No.2991/2019

(Roshini Choubey Vs. Subodh Gautam and others)

INDORE dt. 05-03-2019

Mr Vivek Dalal, learned counsel for the petitioner
(Roshini Choubey).

Mr Sunil Jain, Sr. Counsel with Mr Kushagra Jain, learned
counsel for the respondent No.1 (Subodh Gautam).

Mr R.S. Chhabra, Additional Advocate General for the
respondents No. 2, 3 and 4.

The present writ petition has been filed by the petitioner
for issuance of a writ in the nature of Habeas Corpus under
Article 226 of the Constitution of India seeking custody of a
minor child aged about four years, namely Master Samarth.

02. The facts of the case reveal that the marriage of the
petitioner with respondent No.1 who is a Police Officer took
place on 24-02-2014 and they were blessed with a male child on
25-02-2015. The marriage finally ended up with a divorce and a
decree of divorce by mutual consent by taking into account
Section 13-B of the Hindu Marriage Act, 1955 was passed on
10-07-2017. The respondent No.1 got re-married on
20-02-2018 and from the second wife he is again blessed with a
child. He is a Police Officer from the State of Uttar Pradesh,
presently posted at Kalpi, District Jaloun, Uttar Pradesh. The
petitioner came up before this court by stating that her minor
child who is about four years was taken away forcibly by the
respondent No.1 in the month of October, 2018 when the child
3 WP No.2991/2019

was at Katni and the petitioner, who is the natural guardian of
the child, who is residing at Indore was left with no other choice
except to file this present petition.

03. This court by an order dated 19-02-2019 has directed the
Sr. Superintendent of Police, Indore to keep the corpus present
and the Director General of Police, Uttar Pradesh was also
directed to extent all possible corporation to the officer, who is
deputed to produce the corpus. The child is very much present
before this court and the child has been permitted to stay with
the mother for some time.

04. Mr Vivek Dalal learned counsel appearing for the
petitioner has argued before this court that the present petition
for issuance of a writ of Habeas Corpus is very much
maintainable in light of the judgment delivered by Hon’ble Apex
court in the case of Capt. Dushyant Somal Vs. Smt Sushma
Somal and other reported in (1981) 2 SCC 277.

05. Learned counsel has also argued before this court that on
an application preferred for grant of divorce on mutual consent,
the respondent No.1 has categorically stated before the Family
Court that the child shall be residing with the mother. The
statement is on record at Page No.16 (PW-1 ) by Mr Subodh.
The mother has also stated before the Family court that the child
shall be residing with the mother only. His contention is that in
light of the statement made by both the parents before the
Family Court, the child was rightly given to the mother and he
was residing happily with the mother till he was taken away
forcibly in the month of October, 2018 by the father. He has
4 WP No.2991/2019

also drawn the attention of this court towards the judgment and
decree which is on record and his contention is that as per the
judgment and decree passed by the trial court maintenance is
being paid by the father for child as well as for the mother. It
has been stated that keeping in view welfare of the child and
also keeping in view the Hindu Minority and Guardianship Act,
1956 to be more specific section 6 as a child is aged about four
years, the child be permitted to remain with the custody of
mother and as he was forcibly taken away from the custody of
the mother this court has got ample power to restore the custody
in a writ petition in which a relief of issuance of a writ in the
nature of Habeas Corpus has been sought.

06. On the other hand learned Sr. Counsel Mr Sunil Jain with
Mr Kushagra Jain has argued before this court that this court
does not have territorial jurisdiction to entertain this present writ
petition. To bolster his submissions, Shri Sunil Jain has placed
reliance upon a judgment delivered by the apex court in the case
of Navinchandra N. Majithia Vs. State of Maharasthra and
others reported in (2000) 7 SCC 640, a judgment delivered by
the Delhi High Court in the case of Sumedha Nagpal Vs. State
of Delhi and others reported in 2000 SCC Online Delhi 14, a
judgment delivered by the apex court in the case of Dr (Mrs)
Veena Kapoor Vs. Shri Varinder Kumar Kapoor reported in
(1981) 3 SCC 92 and lastly upon a judgment delivered by
Madras High Court in the case of Sabiha Begum Vs.
Commissioner of Police and others reported in 2019 SCC
online Mad 569. He has also argued before this court that the
5 WP No.2991/2019

decree of divorce was passed based upon an application
preferred u/s 13-B of the Hindu Marriage Act and in the
application which was preferred u/s 13-B of the Hindu Marriage
Act it was stated by the husband and wife both in paragraph-3
that the child will remain with the Father. Various photos have
also been filed to establish before this court that child is living
happily with the father. Some admission form in respect of
S.N. Academy is also on record to establish that the child was
admitted in a school on 21-07-2017. Fee receipt is also on
record and it has been argued that the child is being looked after
properly by the father. Certain medical certificates were also on
record to reflect that the child is being given proper medical
treatment also. It has not been disputed by Shri Jain that a
remarriage of respondent No.1 has taken place on 10-02-2018
and there is a child born out of the second marriage also. A
prayer has been made for dismissal of the writ petition.

07. Heard learned counsel for the parties at length and perused
the record. The matter is being disposed off with a consent of
both the parties at an admission stage, itself.

08. This court is dealing with a child of tender age, whose date
of birth is 25-02-2015. This court has interacted with the child
and has done deliberation with the child in order to ascertain the
wish of the child. Initially, when the child was brought to the
Court Room by the father he was quite reluctant to go with the
mother as since October, 2018 the child was in custody of the
father. This court permitted the child and mother to spent some
time together and after some time when this court interacted
6 WP No.2991/2019

with the child inside the Chamber the child was happily playing
with the mother and later on the child went to sleep in the lap of
the mother. The behavior of the child which was shown in first
instance was not all in existence. By seeing the demeanor of the
child after he has spent sometime with the mother, this court can
safely give an opinion that the child was very happy after
meeting his mother and after spending some time with the
mother. This court has also interacted with the child inside the
Chamber, though he is a minor child, but he has expressed his
willingness to go with the mother. Section 6 of the Hindu
Minority and Guardianship Act, 1956 reads as under :-

“Section 6 in The Hindu Minority and Guardianship Act, 1956

6. Natural guardians of a Hindu minor.–The natural guardian of a Hindu
minor, in respect of the minor’s person as well as in respect of the minor’s property
(excluding his or her undivided interest in joint family property), are–

(a) in the case of a boy or an unmarried girl–the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;

(b) in case of an illegitimate boy or an illegitimate unmarried girl–the mother, and
after her, the father;

(c) in the case of a married girl–the husband: Provided that no person shall be
entitled to act as the natural guardian of a minor under the provisions of this section–

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi). Explanation.–In this section, the
expression “father” and “mother” do not include a step-father and a
step-mother.”

09. The aforesaid statutory provision of law provides that in
case of a male Hindu child the custody shall be with the mother
ordinary upto the age of five years. The child in the present case
is certainly of four years. A very important ground has been
7 WP No.2991/2019

raised by Sr. Counsel Shri Jain, who is assisted by Kushargra
Jain regarding territorial jurisdiction. Undisptued facts of the
case reveal that the marriage was solemnized between the parties
on 24-02-2014. Child was born on 25-02-2015 and both
husband and wife applied for divorce with mutual consent at
Indore. The mother is residing at Indore and the parents of the
mother are residing at Katni. When the child was at Katni in the
month of October, 2018 the respondent No.1 took away the
child forcibly as alleged. The petitioner along with the child
went to Katni for ten days for ‘Dusshera’ Holidays. When the
child, the petitioner (mother) and parents of the petitioner were
at Katni, the respondent No.1 came down to Katni and took
away the child by allegedly playing a fraud saying that child will
be returned back. However, he never brought the child back to
Katni.

10. The mother is undisputedly residing at Indore. Learned
Sr. Counsel Mr Sunil Jain has placed a heavy reliance upon a
judgment delivered by the apex court in the case of
Navinchandra N. Majithia Vs. State of Maharasthra (supra).
Paragraphs 17 and 18 of the aforesaid judgment reads as
under :-

“17. From the provision in Clause (2) of Article 226 it is clear that
the maintainability or otherwise of the writ petition in the High
Court depends on whether the cause of action for filing the same
arose, wholly or in part, within the territorial jurisdiction of that
Court.

18. In legal parlance the expression ’cause of action’ is generally
understood to mean a situation or stale of facts that entitles a
party to maintain an action in a Court or a Tribunal, a group of
operative facts giving rise to one or more bases for suing; a
factual situation that entitles …one person to obtain a remedy in
8 WP No.2991/2019

Court from another person (Black’s Law Dictionary).”

11. The aforesaid case was a case wherein the issue of
territorial jurisdiction has been considered by the apex court.
The issue involved in the aforesaid case was in respect of a
complaint filed at Shillong and in respect of complaint filed at
Shillong, a petition for quashment of complaint was preferred
before the Bombay High Court. The Bombay High Court has
dismissed the writ petition and the matter has travelled upto the
apex court and in those circumstances the Hon’ble apex court
has held that the Bombay High Court has erred in dismissing the
writ petition on the ground that it had no jurisdiction to quash
the complaint at Shillong. The apex court has dealt with various
aspects and the maintainability of the writ petition keeping in
view Article 226 of the Constitution of India.

12. In the considered opinion of this court as the mother is
residing at Indore, the divorce has taken place between the
parties at Indore, the statement was given by the father at Indore
before the Family Court during the pendency of divorce
proceedings permitting the mother to keep the child, the
judgment relied upon is not at all applicable in the peculiar facts
and circumstances of the present case.

13. Other judgment over which reliance has been placed upon
is a case decided by Delhi High Court in the case of Sumedha
Nagpal Vs. State of Delhi (supra). The judgment delivered by
the learned Single Judge of Delhi High Court is not at all
binding upon us. Otherwise also, the facts reveal that a petition
for Habeas Corpus was filed before the Delhi High Court and it
9 WP No.2991/2019

was brought to the notice of the Delhi High Court that one of the
party has already approached the authorities at Bahadurgarh i.e
Gaziabad and in those circumstances the Delhi High Court has
granted a liberty to the petitioner therein to approach the
appropriate court for rederessal of the grievance, whereas no
such contingency is involved in the present case.

14. Learned counsel has also placed reliance upon a judgment
delivered by the Madras High Court in the case of Sabiha
Begum Vs. Commissioner of Police (supra). Paragraphs 14,
15, 17 and 19 of the aforesaid judgment reads as under :-

“14. The decisions relied on by the learned counsel appearing for
the petitioner also lay down the proposition that “wishes of the
child of any age may be considered under all the circumstance,
but the weight given to those wishes must be dominated by what
is best for the welfare of the children and it depends upon the age
of the children and the attendant circumstances.

15. Similar view has been taken by the Hon’ble Supreme Court
in the decision in Prateek Gupta v. Shilpi Gupta and Others
[(2018) 2 SCC 309], which observed that irrespective of
summary or elaborate enquiry to be undertaken by High Court,
welfare of child must prevail as foremost overriding
consideration. In the very same decision in paragraph No.38, it
was observed that the appellant, namely Prateek Gupta, being the
biological father of Aadvik, his custody of the child can by no
means in law be construed as illegal or unlawful drawing the
invocation of a superior Courts jurisdiction to issue a writ in the
nature of habeas corpus.

17. In the considered opinion of the Court, the grounds raised
and the points urged by the respective learned counsel appearing
for the parties revolve around adjudication of disputed question
of fact and it require necessary averments supported by oral and
documentary evidence and this Court, in exercise of it’s
jurisdiction under Article 226 of the Constitution of India, may
not able to do that exercise.

19. It is not in dispute that the petitioner is the biological mother
of the detenus and being a parent, she is expected to have anxiety
to have the custody of her children. It is also brought to the
notice of this Court that when this Habeas Corpus Petition was
listed before the earlier Division Bench [Hon’ble Mr.Justice
10 WP No.2991/2019

C.T.Selvam, as the Hon’ble Judge then was and Hon’ble
Mr.Justice M.Nirmal Kumar], the children were produced before
them by the fourth respondent and they were enquired into and
they expressed their disinclination to go with the petitioner.
However, it is to be pointed out that it may not be the criteria to
decide the issue relating to the custody of the children, as it can
be done only through appropriate proceedings as to the
Guardianship of the children before the competent civil forum.”

15. Undisputedly, the welfare of the child is of a paramount
importance. There can be no second opinion about it. This
court is dealing with a case where the mother is looking after the
child. She is receiving maintenance from the father of the child.
The father has entered into a second marriage and the father is
blessed with a child from the second wife. Keeping in view the
behavior of the child which he has expressed before us, this
court is of the opinion that the child is certainly in safe custody
of the mother and, therefore, the judgment relied upon is again
of no help to the petitioner.

16. The parties before this court have undoubtedly obtained a
decree of divorce on mutual consent. The statement of the
husband namely, Mr Subodh Gautam finds place on record. It
was stated by the husband in open court before the Principal
Judge Family Court, Indore that the son, who was at the relevant
point of time two years and four months old shall be residing
with the mother. The statement of the father Subodh Gautam is
quoted as under :-

“uke % lqcks/k firk Lo- Jh jkedqekj xkSre O;olk; % ukSdjh irk %
xzke xqyckjk ftyk dVuh e-iz- gky fuoklh dYih fMfLVªDV
tkyksu m-iz-

‘kiFk ij dFku

01- esjk fookg izkFkhZ dz- 1 jks’kuh ls fnukad dks fgUnw jhfr fjokt
vuqlkj xzke xqyckjk ftyk dVuh e/;izns’k esa fnukad 24@2@2014 dks
11 WP No.2991/2019

lEiUu gqvk FkkA bl fookg ls gesa ,d iq leFkZ mez djhc lok nks lky
dk gksdj iq izkFkhZ dze0 1 ds lkFk gh fuokl djsxkA

02- fookg ds dqN le; i’pkr ls gh gekjs chp xaHkhj oSpkfjd erHksn
gks x;s FksA ifjokj vkSj lekt ds lekbZ’k ds ckn Hkh gekjs erHksn nwj ugh
gq,A ge nksuksa djhc nks lky ls i`Fkdi`Fkd fuokl dj jgs gSA vyx jgus
ds i’pkr ls gekjs chp fdlh izdkj ds nkEiR; laca/k LFkkfir ugh gq,A
gekjk ,d lkFk ifr iRuh ds :i esa jguk drbZ laHko ugh gSA

03- U;k;ky; }kjk N% ekg dh vof/k iqufoZpkj ds fy, nh x;h Fkh
ijUrq ge nksuksa dk ifr iRuh ds :i esa lkFk jguk drbZ lEHko ugh gS
D;ksfa d ‘kknh e`rizk; gks x;h gS vr% geus fookg foPNsn ysuk r; fd;k gSA
vr% ge fookg foPNsn gsrq nh x;h viuh lgefr ij dk;e gS vkSj fookg
foPNsn pkgrs gSA ge mHk; i{k esa nwjfHklaf/k ugh gSA

04- lekSrk vuqlkj izkFkhZ dzekad 1 dks mlds o iq ds Hkj.k iks”k.k
gsrq dqy chl gtkj :i;s izfrekg nsuk r; gqvk gSA vkt fnukad dks gekjs
e/; vc dqN Hkh ysuknsuk ‘ks”k ugh gSA ysu nsu dk iwjk fooj.k ;kfpdk esa
of.kZr gS og eqs Lohdkj gSA gekjk ifriRuh ds :i esa lkFk jguk dnkfi
lEHko ugh gSA vr% lgefr ds vk/kkj ij fookg foPNsn dk vkns’k ikfjr
fd;s tkus dk vuqjks/k gSA

05- fookg dh ifdk dh izih@1 gSA fookg dk QksVks izih@2 gSA esjs
fuokl gsrq esjk fdjk;k vuqca/k i dh izfrfyfi izih@3 gSA esjk ifjp; i
izih@5 o Nk;k izfr izih@5 lh gSA

izfrijh{k.k dqN ughaA
okfpr] lgh gksuk Lohdkjh fd;kA esjs cksyus ij Vafdr fd;k x;kA

¼Jherh lqjfHk feJk½ ¼Jherh lqjfHk feJk½
iz/kku U;k;k/kh’k iz/kku U;k;k/kh’k
dqVqEc U;k;ky; bUnkSj dqVqEc U;k;ky; bUnkSj

17. Similarly, the mother while giving the statement before the
Principal Judge Family Court, Indore has categorically stated
that she is ready for divorce with a mutual consent and shall be
keeping the child with her. The statement of the mother Roshini
is also reproduced as under :-

“uke % jks’kuh ifr lqcks/k xkSre O;olk; % v/;;u irk % 288]
lk/kq oklokuh uxj xkMZu ds ikl bUnkSj

‘kiFk ij dFku

01- esjk fookg izkFkhZ dz- 2 lqcks/k ls fnukad dks fgUnw jhfr fjokt
vuqlkj xzke xqyckjk ftyk dVuh e/;izns’k esa fnukad 24@2@2014 dks
lEiUu gqvk FkkA bl fookg ls gesa ,d iq leFkZ mez djhc lok nks lky
dk gksdj iq esjs lkFk gh fuokl djsxkA
12 WP No.2991/2019

02- fookg ds dqN le; i’pkr ls gh gekjs chp xaHkhj oSpkfjd erHksn
gks x;s FksA ifjokj vkSj lekt ds lekbZ’k ds ckn Hkh gekjs erHksn nwj
ugh gq,A ge nksuksa djhc nks lky ls i`Fkdi`Fkd fuokl dj jgs gSA
vyx jgus ds i’pkr ls gekjs chp fdlh izdkj ds nkEiR; lac/a k LFkkfir
ugh gq,A gekjk ,d lkFk ifr iRuh ds :i esa jguk drbZ laHko ugh gSA
03- U;k;ky; }kjk N% ekg dh vof/k iqufoZpkj ds fy, nh x;h Fkh
ijUrq ge nksuksa dk ifr iRuh ds :i esa lkFk jguk drbZ lEHko ugh gS
D;ksafd ‘kknh e`rizk; gks x;h gS vr% geus fookg foPNsn ysuk r; fd;k
gSA vr% ge fookg foPNsn gsrq nh x;h viuh lgefr ij dk;e gS vkSj
fookg foPNsn pkgrs gSA ge mHk; i{k esa nwjfHklaf/k ugh gSA
04- lekSrk vuqlkj izkFkhZ dzekad 2 ls esjs o iq ds Hkj.k iks”k.k gsrq
dqy chl gtkj :i;s izfrekg nsuk r; gqvk gSA vkt fnukad dks gekjs
e/; vc dqN Hkh ysuknsuk ‘ks”k ugh gSA ysu nsu dk iwjk fooj.k ;kfpdk
esa of.kZr gS og eqs Lohdkj gSA gekjk ifriRuh ds :i esa lkFk jguk
dnkfi lEHko ugh gSA vr% lgefr ds vk/kkj ij fookg foPNsn dk vkns’k
ikfjr fd;s tkus dk vuqjks/k gSA
05- fookg dh ifdk dh izih@1 gSA fookg dk QksVks izih@2 gSA esjs
fuokl gsrq esjk fdjk;k vuqca/k i dh izfrfyfi izih@3 gSA esjk ifjp;
i izih@4 o Nk;k izfr izih@4 lh gSA

izfrijh{k.k dqN ughaA
okfpr] lgh gksuk Lohdkjh fd;k esjs cksyus ij Vafdr fd;k x;kA

¼Jherh lqjfHk feJk½ ¼Jherh lqjfHk feJk½
iz/kku U;k;k/kh’k iz/kku U;k;k/kh’k
dqVqEc U;k;ky; bUnkSj dqVqEc U;k;ky; bUnkSj

18. Meaning thereby, before the Family Court both the
husband and wife have agreed that the child Samarth in question
shall be residing with the mother only and in those
circumstances after taking into account the statement of father
and the mother, the child was handed over to the mother at the
time of divorce. Keeping in view the fact that the child shall be
residing with the mother, maintenance of Rs. 20,000/- per month
has been awarded by the Family Court and, therefore, keeping in
view the totality of the facts and circumstances of the case, this
court is of the opinion that the child has to be given to the
mother.

19. The apex court in the case of Capt, Dushyant Somal Vs.
Sushma Somal and another reported in (1981) 2 SCC 277 has
13 WP No.2991/2019

dealt with the jurisdictional aspect under article 226 of Habeas
Corpus writ petition in respect of illegal custody of Child.
Paragraphs 3, 5 and 7 of the aforesaid judgment reads as under :-

“3. There can be no question that a Writ of Habeas Corpus is not
to be issued as a matter of course, particularly when the writ is
sought against a parent for the custody of a child. Clear grounds
must be made out. Nor is a person to be punished for contempt of
Court for disobeying an order of Court except when the
disobedience is established beyond reasonable doubt, the standard
of proof being similar, even if not the same, as in a criminal
proceeding. Where the person alleged to be in contempt is able to
place before the Court sufficient material to conclude that it is
impossible to obey the order, the Court will not be justified in
punishing the alleged contemner. But all this does not mean that a
Writ of Habeas Corpus cannot or will not be issued against a
parent who with impunity snatches away a child from the lawful
custody of the other parent, to whom a Court has given such
custody. Nor does it mean that despite the contumacious conduct
of such a parent in not producing the child even after a direction
to do so has been given to him, he can still plead justification for
the disobedience of the order by merely persisting that he has not
taken away the child and contending that it is therefore,
impossible to obey the order. In the case before us, the evidence of
the mother and the grand-mother of the child was not subjected to
any cross-examination; the appellant-petitioner did not choose to
go into the witness box; he did not choose to examine any witness
on his behalf. The evidence of the grand-mother, corroborated by
the evidence of the mother, stood unchallenged that the
appellant-petitioner snatched away Sandeep when he was waiting
for a bus in the company of his grand-mother. The High Court was
quite right in coming to the conclusion that he appellant-petitioner
had taken away the child unlawfully from the custody of the
child’s mother. The Writ, of Habeas Corpus was, therefore, rightly
issued. In the circumstances, on the finding, impossibility of
obeying the order was not an excuse which could be properly put
forward.

5. It was submitted that the appellant-petitioner did not give
evidence, he did not examine any witness on his behalf and he did
not cross-examine his wife and mother-in-law because, he would
be disclosing his defence in the criminal case, if he so did. He
could not be compelled to disclose his defence in the criminal
case in that manner as that would offend against the fundamental
right guaranteed by Article 20(3) of the Constitution. It was
suggested that the entire question whether the appellant-petitioner
had unlawfully removed the child from the custody of the mother
could be exhaustively enquired into in the criminal case where he
was facing the charge of kidnapping. It was argued that on that
14 WP No.2991/2019

ground alone the writ petition should have been dismissed, the
submission is entirely misconceived. In answer to the rule nisi, all
that he was required to do was to produce the child in Courts if
the child was in his custody. If after producing the child, he
wanted to retain the custody of the child, he would have to satisfy
the Court that the child was lawfully in his custody. There was no
question at all of compelling the appellant-petitioner to be a
witness against himself. He was free to examine himself as a
witness or not. If he examined himself he could still refuse to
answer questions, answers to which might incriminate him in
pending prosecutions. He was also free to examine or not other
witnesses on his behalf and to cross examine or not, witnesses
examined by the opposite party. Protection against testimonial
compulsion” did not convert the position of a person accused of
an offence into a position of privilege, with, immunity from any
other action contemplated by law. A. criminal prosecution was not
a fortress against all other actions in law. To accept the position
that the pendency of a prosecution was a valid answer to a rule for
Habeas Corpus would be to subvert the judicial process and to
mock at the Criminal Justice system. All that Article 20(3)
guaranteed was that a person accused of an offence Shall not be
compelled to be a witness against himself, nothing less and,
certain nothing more. Immunity against testimonial compulsion
did not extend to refusal to examine and cross-examine witnesses
and it was not open to a party proceeding to refuse to examine
himself or anyone else as a witness on his side and to cross
examine the witnesses for the opposite party on the ground of
testimonial compulsion and then to contend that no relief should
be given to. the opposite party on the basis of the evidence
adduced by the other party. We are unable to see how Article 20(3)
comes into the picture at all.

7. It was argued that the wife had alternate remedies under the
Guardian and Wards Act and the CrPC and so a Writ should not
have been issued. True, alternate remedy ordinarily inhibits a
prerogative writ. But it is not an impassable hurdle. Where what is
complained of is an impudent disregard of an order of a Court, the
fact certainly cries out that a prerogative writ shall issue,. In
regard to the sentence, instead of the sentence imposed by the
High Court, we substitute a sentence of three months, simple
imprisonment and a fine of Rupees Five hundred. The sentence of
imprisonment or such part of it as may not have been served will
stand remitted on the appellant-petitioner producing the child in
the High Court. With this modification in the matter of sentence,
the appeal and the Special Leave Petition are dismissed. Criminal
Miscellaneous Petition No. 677/81 is dismissed as we are not
satisfied that it is a fit case for laying a complaint. ”

20. In light of the aforesaid judgment, this court is of the
opinion that a writ petition for issuance of a writ in nature of
15 WP No.2991/2019

Habeas Corpus under article 226 of the Constitution of India in
the peculiar facts and circumstances of the case is certainly
maintainable. Otherwise also, keeping in view the welfare of the
child and other factors including interaction with the child, this
court is of the opinion that the child has to be in the custody of
mother and it is ordered, accordingly.

21. The Chief of High Court Security is directed to escort the
petitioner as well as the child to their house and the
Superintendent of Police, Indore shall provide proper
safety/security for the time being to the lady, in case she so
desires. Mr R.S. Chhabra, Additional Advocate General has
fairly stated before this court that all possible security shall be
provided to the lady as and when she desires. The respondent
No.1 shall certainly be free to take recourse to the remedy
available under the Guardian and Wards Act, 1890/Hindu
Minority and Guardianship Act, 1956/under the law. The
observations made by this court are confined only to the extent
the writ of Habeas Corpus is concerned and in case any other
remedy is availed under the law, the matter shall be decided on
merits, without being influenced by the order passed by this
court.

Certified copy as per rules.

(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE

Rashmi

Digitally signed by Rashmi Prasahant
Date: 2019.03.08 15:27:35 +05’30’

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