Somendra Pant vs State of M.P. and Others

A.R. Tiwari, J.—The petitioner was married to respondent No. 5 on 10.12.1980 at Indore and were blessed with a daughter named Kumari Shilpa on 28th June, 1985 at Indore. The petitioner shifted to USA for his further education and research in Troy, New York. The couple and Kumari Shilpa resided in Troy, New York for sometime. It appears that things did not remain rosy for couple and they got involved in litigation there. On 26.19.93 as contended. Family Court of the State of New York at Tory passed the order (Annexure P/9) thereby directing that physical custody of the child Kumari Shilpa Pant born on 28th June, 1985 be awarded to the petitioner. Despite this direction, custody of the child remains with respondent No. 1, who is admittedly residing at Pune alongwith the aforesaid child. In the face of entitlement flowing from the order and non-compliance of the same by respondent No. 5 the petitioner has filed this writ petition for obtaining writ of Habeas Corpus to obtain custody of the child Knmari Shilpa Pant. On 27.7.94, this Court issued show cause notice to respondent No. 5. Respondent No. 5 appeared through Counsel and filed IA No. 4322/94 raising preliminary objection about tenability of the petition in this Court for want of territorial jurisdiction and also stating that the order, the linchpin of the petition, is not binding on respondent No. 5 as being ex party. Respondent No. 5 also filed in IA No. 1478/94 to place on record additional affidavit and copies of certain documents.

I have heard both sides.

Counsel for the petitioner attempted to meet preliminary objection by placing reliance on 1952 NLJ 253; Rosy Jacob Vs. Jacob A. Chakramakkal, Rosy Jacob v. Jacob and AIR 1944 Cal. 433 (In the matter of Love Joy Patell and Anr.), The Counsel for respondent No. 5, on the other hand, submitted that no part of cause of action has arisen here for exercise of extra ordinary power conferred by Article 226 of the Constitution of India. Art, 226(2) of the Constitution of India reproduced as under :

"(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."

Title of guardian to custody of ward is a matter covered u/s 25 of the Guardian and Wards Act, 1890.

It is not contended before me that the remedy under ordinary civil law is unavailable. In Shyam Kishore and others Vs. Municipal Corporation of Delhi and another, (Shyam Kishore v. Municipal Corporation of Delhi) it is held that resort to Article 226 and 227 by way of writ petition is not proper when more satisfactory solution is available on the terms of the statute.

The preliminary objection with regard to territorial jurisdiction rests on the fulcrum of facts which are disputed. A foreign judgment ceases to be conclusive in terms of Section 13 of CPC if it is shown that proceedings are opposed to natural justice. This plea too is one of facts. The case-law, as relied upon, is, thus, found to be offering no assistance to the petitioner.

Considering the factual matrix and legal position as noted above, together with the state of disputed points, I find it unfit to entertain the matter in this extraordinary jurisdiction and deem it desirable to leave the petitioner free to pursue the matter under ordinary civil law.

If the petitioner elects to resort to remedy under ordinary civil law, the respondent No. 5 shall be free to raise all objections, as may be permissible under the law. A proper forum in that event shall decide the same in conformity with law.

In the result, with the aforesaid observations, I dispose of this petition leaving the parties to bear their own costs of this petition as incurred.