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Tarek Akhtar Ansari vs Musfia Khatun And 3 Ors on 28 January, 2019

Page No.# 1/4

GAHC010180852018

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WA 245/2018

1:TAREK AKHTAR ANSARI
S/O LATE GOLAM SAMDANI
RESIDENT OF N B ROAD, TEZPUR TOWN. NEAR ANANTA COMPLEX, PO
AND PS TEZPUR, SONITPUR, ASSAM

VERSUS

1:MUSFIA KHATUN AND 3 ORS
D/O MD KEFAYETULLAH
R/O VILL CHAMATA PATHAR
PO AND PS SONAPUR
DIST KAMRUP M ASSAM
782402

2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
DEPARTMENT OF HOME
DISPUR
GUWAHATI 06

3:THE COMMISSIONER OF POLICE
GUWAHATI CITY
ANANDA RAM BARUAH ROAD
PANBAZAAR
DIST KAMRUP M
ASSAM

4:THE OFFICER IN CHARGE
SONAPUR POLICE STATION
DIST KAMRUP M ASSA
Page No.# 2/4

Advocate for the Petitioner : PETITIONER IN PERSON

Advocate for the Respondent : GA, ASSAM

BEFORE
HON’BLE THE CHIEF JUSTICE MR. A.S. BOPANNA
HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

28.01.2019
(A.S. Bopanna, CJ)

Heard Mr. Tarek Akhtar Ansari, the appellant-in-person.

Also heard Mr. MK Sah, learned counsel for respondent No.1.

The appellant herein was the petitioner in WP(C) No. 7346/2017. The said writ petition
was filed by the appellant seeking issuance of a writ of habeas corpus so as to procure his
son’s custody. The learned Single Judge while disposing of the writ petition through the order
dated 28.7.2018, though has noted the absence of the appellant who was appearing as the
petitioner in person, has also taken into consideration the nature of the grievance put forth
and, in that light, on finding that the petitioner could avail his remedy before the appropriate
forum under the Guardians and Wards Act, 1870 for custody of the minor child, has disposed
of the writ petition. The petitioner has, therefore, approached this Court in this intra-court
appeal and has appeared in person.

The appellant while seeking to contend that a petition for issuance of a writ in the
nature of habeas corpus could be entertained by this Court even where there are matrimonial
disputes, has sought to rely on the decision of the Hon’ble Supreme Court in the case of Dr.
(Mrs.) Veena Kapoor -vs- Shri Varinder Kumar Kapoor, (1981) 3 SCC 92. We have carefully
considered the said judgment wherein in Para 3 it is observed as hereunder:

“3. It is difficult for us in this habeas corpus petition to take evidence without which
the question as to what is in the interest of the child cannot satisfactorily be
determined. We, therefore, direct that the learned District Judge, Chandigarh, will
Page No.# 3/4

make a report to us before the 23 rd of this month on the question as to whether the
custody of the child should be handed over to the petitioner-mother, taking into
consideration the interest of the minor. The learned Single Judge will give liberty to the
parties to adduce evidence on the question in issue. The learned District Judge may
either take up the matter himself or assign it to an Additional District Judge, if there is
any at Chandigarh.”.

The appellant, therefore, would stress upon the aforesaid observation and would
contend that a writ petition of the present nature ought to have been entertained as the
interest of the child is pivotal. It is contended by him that the respondent wife is likely to take
away the child to the southern part of India and the interest of the child would be affected.

Though such contention is put forth and the decision of the Hon’ble Supreme Court is
relied upon, at the outset we notice that in the said case the mother was before the Hon’ble
Supreme Court seeking custody of the child who was aged about 1 ½ years. As against the
position that had arisen therein, it is to be noted that in the present case even as per the
averment as contained in the petition, the child was born on 16.4.2007 and is aged about 11
years presently. It is further averred in the petition that due to certain matrimonial disputes
between the parties, the appellant herein has also filed criminal case against the respondent
No.1 which was registered as Tezpur P.S. Case No. 771/2014. The appellant has further
averred that he has pronounced Talaq on 8.7.2014. The specific averment in this regard is
that after pronouncement of Talaq on 8.7.2014, the respondent No.1 along with the minor
child left her matrimonial home and took shelter at her paternal house and since then she is
living at the paternal house along with the minor child. The said averment would indicate that
ever since the marriage was sought to be dissolved by the appellant by pronouncement of
Talaq, the child has been with respondent No.1. In the present facts, even by the averments
the question for a direction to produce the child before this Court in a petition seeking
issuance of a writ of habeas corpus would not arise. In any event, in the circumstances as
pleaded, the appellant could avail his remedy in accordance with law and his grievance could
be redressed in an appropriate forum.

Therefore, in the present facts and circumstances, we would not be justified in setting
aside the order of the learned Single Judge and entertain a petition in the nature of habeas
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corpus. Therefore, reserving the liberty to appellant to avail his remedy in accordance with
law, the instant appeal stands disposed of.

JUDGE CHIEF JUSTICE

Comparing Assistant

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