Madhuri Kumari vs State Of Bihar And Ors

Heard learned counsel for the parties.

This writ petition in the nature of Habeas Corpus has been filed to produce minor children of petitioner namely Rhea Kumari (F) aged about 6 years

and Bholu Kumar (M) aged about 4 years as they are in illegal custody and to hand over the custody of both minor children to the petitioner, who is

their mother and natural guardian, and has a better right of custody, as the father of children is in judicial custody in an excise matter and the children

are living with their grandmother.

Petitioner and respondent no. 5 got married under Hindu rites and rituals on 11.11.2011 and from said wedlock two children were born. Petitioner was

ousted from her matrimonial home by respondent no 5 (husband) on 11.02.2019 and petitioner had filed a complaint case being Complaint Case No.

496(c) of 2019 before the Court of CJM, Saran, which was subsequently registered as Sonepur PS Case No. 217 of 2019 dated 29.03.2019 for the

offences punishable under Sections 323, 498A, 307, 406, 504 read with 34 of IPC, in which provisional bail was granted to respondent no.5(husband).

An FIR being Sonepur PS Case No. 117 of 2020 dated 10.02.2020 was lodged against respondent no. 5(husband) for the offences punishable under

Sections 30(a), 38 & 41 of Bihar Prohibition and Excise Act, 2016, in which he was arrested and sent to Judicial custody.

Respondent No. 5 (husband) has filed matrimonial (divorce) Case No. 148 of 2019 dated 24.07.2019 before the Principal Judge, Family Court, Chapra,

Saran.

Divorce case between the petitioner and respondent no. 5 (husband) is pending before the Family Court, Chapra (Saran) which has also jurisdiction to

pass order/orders with respect to interim custody/custody of the minor children under Section 26 of the Hindu Marriage Act as well as Section 7(1)(g)

of the Family Courts Act. Accordingly, the writ petition is disposed of with liberty to the petitioner to file petition for interim custody/custody of her

minor children before the Family Court, Chapra (Saran), and if any such petition is filed by petitioner, same to be decided by the Family Court Judge,

within 60 days from the date of its filing, in accordance with law and after hearing both the parties.