In the High Court at Calcutta
Constitutional Writ Jurisdiction
The Hon’ble Mr. Justice Ashim Kumar Roy
The Hon’ble Mr. Justice Amitabha Chatterjee
W.P. No. 8923 (W) of 2017
Seikh Jiayur Rahaman @ Bakul
The State of West Bengal Ors.
For the petitioner :- Mr. Buddhadeb Ghosal,
Mr. Aurobindo Sen,
Mr. Nilanjan Bhattacharjee,
Ms. Suman Jaiswal
For the State :- Mr. Neguive Ahmed,
Ms. Sreyashee Biswas
For the respondent
No. 6 :- Mr. Samim Ahammed.
Heard on :- 30.03.2017, 03.04.2017
Judgment on :- 21.04.2017
Ashim Kumar Roy, J.:-
The writ petitioner, the father of a minor girl, has now moved this
application, seeking a writ in the nature of habeas corpus for recovery of his
daughter, who has allegedly been illegally detained in the custody of her mother,
the respondent No.6 herein.
According to the case of the writ petitioner as we find from the submissions
of the learned counsel for the petitioner and the averments made in this writ
application that the marriage between the writ petitioner and the respondent No.6
was solemnised and registered according to the provisions of Special Marriage Act,
1954 and in their said wedlock, two children (one male and one female) were born.
Subsequently, the respondent No.6 came out with a claim that by a
talaqnama executed on March 21, 2011, their marriage was dissolved.
It is the further case of the writ petitioner since the respondent No.6
wrongfully kept both the children in her custody and refused the petitioner’s access
to his own children, he moved an application under Section 7 read with Section 10
of the Guardians and Wards Act, 1890 before the learned District Judge at
Jalpaiguri. The said application was disposed of by an order passed on January 8,
2015 being Annexure P-2 to this application. According to the said order, it was
directed the girl child shall continue to remain with the writ petitioner, her father
and the male child with the respondent No.6, his mother.
Subsequently, the said order was challenged before this Hon’ble High Court
by both the writ petitioner and the respondent No.6 and two separate appeals being
F.M.A.T. No.133 of 2015 and F.M.A.T. No.126 of 2015 were moved and the same
was subsequently registered as F.M.A. No.1970 of 2015 and F.M.A. No.1969 of
2015 respectively and were directed to be heard analogously.
In connection with the said matter on May 17, 2016 a co-ordinate bench of
this court directed both the child shall remain with the mother, respondent No.6 at
her residence on and from May 22, 2016 and shall spend their summer vacation
with her and father shall have the visitation right either at the wife’s residence or at
a public place and the order shall continue until further order (Annexure P-5).
Subsequently, both the matters were disposed of by an order passed on August 3,
2016 and the order passed by the court below as regards to the question of custody
of the children was sustained.
It is now the case of the writ petitioner that in spite of the above order, the
mother has refused to hand over the custody of the daughter to the writ petitioner,
the father and has illegally detained her in utter violation of the order passed by the
Division Bench of this court.
Undoubtedly, the alleged conduct of the respondent No.6 of not complying
with the order of the Division Bench of our High Court is not only illegal, but also
prima facie appears to be contumacious, since the order passed by the High Court
has been disobeyed. However, the writ petitioner has not moved the court
concerned, whose order has been so disobeyed.
Admittedly, the custody of the girl child came into hands of the respondent
No.6 by virtue of an order passed by a Division Bench of our High Court. It may be
that subsequently, the respondent No.6 disobeyed the final order, whereby it was
directed the custody of the daughter shall remain with the writ petitioner, while the
Appellate Court upheld the order passed by the court below under the Guardians
and Wards Act, 1890.
Not only the petitioner has not moved the court concerned, whose order has
been contumaciously violated, at the same time has not taken recourse to the
provisions of the Code of Civil Procedure for execution of the order passed under
the Guardians and Wards Act, 1890. However, the fact remains the daughter of the
writ petitioner is in the custody of an identifiable person i.e., her mother, the
respondent No.6 herein and such custody is otherwise not illegitimate.
Therefore, it cannot be said that the writ petitioner is otherwise remediless
and alternative remedy, available to him, is not adequate and efficacious.
Having regard to above, we are not inclined to invoke our extraordinary writ
jurisdiction. This application, therefore, fails and stands dismissed.
We, however, make it clear we have not gone into the merits of the case and
this order will not preclude the writ petitioner to move the court concerned for
appropriate legal remedy.
Urgent xerox certified copy of this order be given to parties, if applied for, as
early as possible.
( Ashim Kumar Roy, J. )
( Amitabha Chatterjee, J. )