Form-J(2)
In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

Present:-

The Hon’ble Mr. Justice Ashim Kumar Roy

And

The Hon’ble Mr. Justice Amitabha Chatterjee

W.P. No. 8923 (W) of 2017

Seikh Jiayur Rahaman @ Bakul

vs.

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. )

I agree.

( Amitabha Chatterjee, J. )