Shree Kirtee v. Commissioner of Police & Anr.

1. The present writ petition under Article 226 of the Constitution of India has beeninstituted on behalf of Ms. Shree Kirtee (the petitioner herein), the divorced wife of Mr. Naveen Chandra - who are both advocates by profession, seeking a direction to the latter toproduce their 9-year-old son Master „X‟ before this Court and further restore hiscustody to the petitioner in terms of the arrangement entered into between them at the time ofseeking dissolution of their marriage by a decree of divorce by mutual consent before the Courtof competent jurisdiction.

2. The facts as are necessary for the adjudication of the present writ petition are briefly enumerated as follows: 2.[1] Ms. Shree Kirtee and Mr. Naveen Chandra, who are both advocates byprofession married each other on 25.12.2009 according to Hindu Rites and Customs at theKalkaji Mandir, New Delhi. 2.[2] Out of the wedlock, one male child Master „X‟ was born on 05.05.2014, who hasbeen in the care and custody of the petitioner since birth. 2.[3] The couple, owing to their personal differences started living separately from 15.11.2017. 2.[4] By way of petition no. HMA No. 298/2020, the couple moved a petition within the provisions of Section 13B(2)of the Hindu Marriage Act, 1955, seeking a decree of divorce by mutual consent asaforestated. In the proceedings before the Court of competentjurisdiction, it was agreed by and between the parties inter alia as follows:

3. Having heard the parties, who are present before this Court in person, there is nomanner of doubt that at the time of obtaining a decree of divorce by mutual consent by their own freewill and volition, they entered into a legal and binding arrangement in relation to the custody/ visitation of their minor son. It is further evident that the terms and conditions in relation to the custody/visitation of the minor son has been complied with by the parties till 18.03.2023, after which respondent no. 2 took away the minor child on a false pretext of spending the daywith him.

4. The solitary submission made on behalf of respondent no. 2 is that the petitioner is unfit to look after the well-being and welfare of the child, and therefore, he was constrained to take the latter‟scustody on the stated day from the latter‟s school, where they had gone to attendthe Parent-Teacher Meeting.

5. For the sake of completeness, it is pertinent to record that it is the case of respondent no. 2 that hewas entitled to the custody of the child for 10 days from 18.03.2023,in terms of Clause (ix) of the agreement owing to thecircumstance that the school was closed for a vacation upon completion of the school year.

6. Be that as it may, from a plain reading of the foregoing, it is axiomatic that respondent no. 2 currently has custody of the parties‟ minor son, contrary to the express termsentered into between the now divorced couple, as elaborated herein above.

7. In that view of the matter whilst reserving liberty to respondent no.2 to file an appropriateproceeding seeking custody of the minor son of the parties in accordance withlaw; the minor son is restored into the care and custody of his biological mother, the petitioner herein.

8. In view of the apprehension expressed on behalf of the petitioner, SHO Police Station: Kalkaji is directedto ensure compliance with the order passed by this Court and further provide the petitioner with his telephone number so as to enable her to contact the former in the event ofany difficulty.

9. It is however made clear that the petitioner undertakes to permit respondent no. 2 to comply with herobligations in accordance with the terms and conditions of the settlement agreement dated 07.08.2020 arrived at by and between the parties.

10. No further directions are prayed for.