Smt Shashi v. State of NCT of Delhi and Ors.

1. Present petition has been filed as Habeas Corpus under Article 226 of the Constitution of India seeking directions to the respondent to produce Master ‘V’ aged about 8 years and Master ‘H’ aged about 7 years old i.e. respondents No.7 & 8 before this Court. Petitioner also seeks a direction to respondents No.3 to 6 to handover her the custody of her children, i.e., the respondent No.7 and 8.

2. Pursuant to order dated 10.11.2023, respondent No.6 – brotherin-law (Nandoi) of respondent No.3 is present in Court and states that he has no knowledge about the whereabouts of the children of the petitioner and that they were never with him.

3. It is not disputed that the petitioner had some matrimonial disputes with her husband and as alleged by her, she was compelled to leave her matrimonial home situated in District Meerut, U.P. on 05.07.2023 and to said effect, the father of the petitioner lodged a complaint with Police Station, Muzzafarnagar, U.P. Thereafter, on 21.08.2023, petitioner also made a complaint to the Senior Police Officer, Janpath, Meerut.

4. It is also not in dispute that the petitioner has not filed any petition seeking custody of her children. Instead, she has filed the present Habeas Corpus petition. Admittedly, even when she was compelled to leave her matrimonial home, her such children were in Meerut with her husband. She has baldly claimed that her such children are with respondent No.6. She has no material to substantiate the same. Moreover, as per State, such children are not with respondent No.6. Status report, which has been prepared after comprehensive investigation, is also to the same effect.

5. Learned Standing counsel for the State asserts that this Court has no jurisdiction as when the petitioner, as alleged, was made to leave her home at Meerut, his children were at Meerut only. There is nothing at all which may suggest that the children were in Delhi, much less with respondent No.6.

6. Learned counsel for the petitioner has relied upon Tejaswini Gaud and Ors. vs. Shekhar Jagdish Prasad Tewari and Others decided by the Hon’ble Supreme Court vide order dated 06.05.2019 in Crl.Appeal No.838/2019 arising out of SLP (Crl.) No.1675/2019 and contends that a Habeas Corpus petition is maintainable if the custody of the child, even with a legal or natural guardian, is illegal and without any authority of law. In the present case, whereas, the children were with their father lastly and since the petitioner has miserably failed to pinpoint any illegality in such custody, the case cited by the learned counsel for the petitioner is of no help to her. Admittedly, the children remained at Meerut when the petitioner, as per her version, was compelled to leave and, therefore, this Court has no jurisdiction.

7. The petition is, accordingly, dismissed with liberty to the petitioner to take appropriate steps before the appropriate Forum.

(SURESH KUMAR KAIT) JUDGE (MANOJ JAIN)

JUDGE JANUARY 05, 2024