Deepak Swami vs Jyoti and Others

Rameshwar Singh Malik, J.—The petitioner, through the instant petition, has approached this Court under Article 226 of the Constitution of India, seeking a habeas corpus, directing the respondents to produce Dia-minor daughter of the petitioner. Notice of motion was issued. In response thereto, written statement on behalf of respondents filed in the Court today, is taken on record and copy thereof has been supplied to the learned counsel for the petitioner. The respondents have categorically denied that they have snatched/abducted the child as alleged by the petitioner, rather, it is the specific case put up by them that respondent No. 1 is the mother of child Dia. She has received the child from the school in the presence of the petitioner. She has denied that it was a case of snatching or abducting.

It has been further averred that relations between the husband and wife were smooth till one and a half year from their marriage but later on the behaviour and conduct of the petitioner and his family members became very cruel towards respondent No. 1. Petitioner and his family members used to taunt her for not bringing sufficient dowry and also started giving merciless beatings. It is also stated that an Alto car was given in the dowry but the petitioner demanded the big car. Then the father of respondent No. 1 gave a big car and from time to time helped the petitioner financially. However, the demand of the petitioner was endless and the unending demand of dowry by the petitioner could not be fulfilled by the parents of respondent No. 1. Finally, respondent No. 1 was turned out of her matrimonial home by the petitioner.

Admittedly, the custody of minor child is with respondent No. 1-mother as of now. From the allegation and counter allegation levelled by the parties, it does not prima facie seem to be the case of snatching or abducting of the minor child at the hands of respondents. Learned counsel for the respondents also submitted that respondent No. 3 was not at all present when the child was taken from the school by respondents No. 1 and 2 in the presence of the petitioner.

Be that as it may, let the petitioner and respondent No. 1 pursue their remedy in accordance with law so far as their matrimonial dispute is concerned. However, at this moment, this Court is concerned only about the custody of the minor daughter of petitioner and respondent No. 1. The date of birth of the child being 2nd August, 2007, she is about four and half years old. The custody of the child of this tender age, in normal circumstances, should be with the mother. I say so because the paramount interest of the child is to be kept in view in such circumstances. Once the custody of the child is admittedly with respondent No. 1 as of now, she being the mother has every right to get the custody of the child, until and unless it is handed over to the petitioner by due process of law.

Further, it is fairly conceded by the learned counsel for the petitioner that in the normal circumstances, the petitioner would have the alternative remedy to seek the custody of the minor child invoking the jurisdiction of the competent Court under the relevant provisions of law. However, he submits that the respondent had taken away the child forcibly. In view of the rival contentions, noted above, it is a disputed question of fact and cannot be decided in these proceedings in the absence of evidence which is required to be led by the parties.

Once the petitioner has got equally efficacious alternative remedy available to him which has not been availed by him, the instant petition in the present form is not maintainable, at this stage, under Article 226 of the Constitution of India. Thus, the present one is not a fit case for exercising the extraordinary writ jurisdiction. In view of the totality of facts and circumstances of the present case, coupled with the reasons aforementioned, the present petition is without any merit and must fail. Thus, the instant petition is ordered to be dismissed.