Court No. - 66
Case :- HABEAS CORPUS WRIT PETITION No. - 320 of 2021 Petitioner :- Km. Mahima And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gyanendra Prasad Mahant Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Sri Gyanendra Prasad Mahant, learned counsel for the petitioners and learned A.G.A. for the State are virtually connected through video conferencing. Heard.
The present petition has been filed with the prayer that a writ in the nature of habeas corpus be issued commanding the respondent nos.2 and 3 to produce the corpus (petitioner nos. 1 to 3) from the illegal custody of respondent no.4.
The petitioner nos. 1 to 3 are the sons and daughter of respondent no.4 whereas the petitioner no.4 is the wife of respondent no.4 and mother of petitioner nos. 1 to 3. According to the petition, petitioner no.4 is legally married wife of respondent no.4. Petitioner nos. 1 to 3 have born out of their wedlock, they are aged about 2 to 6 years. The respondent no.4 takes heavy liquor and demanded dowry to the petitioner no.4. Petitioner no.4 got fed up with ill behaviour of respondent no.4 and when she was brutally beaten by respondent no.4 in December, 2018 when she was in family way, she left matrimonial house and came to her maika. The petitioner no.4 born third issue in January, 2019 in her maika. In August, 2020, a panchayat took place in which respondent no.4 was asked by the family members that he will promise for no further ill behaviour only then the petitioners will go with him. The respondent no.4 refused to do so and filed a petition under Section 9 of Hindu Marriage Act on 4.9.2020. On 25.1.2021, the respondent no.4 took the three minor children of petitioner no.4 from her maika. The petitioner no.4 made a complaint to the police on 26.1.2021 but no action was taken against him and she was advised to make settlement. She made a written complaint to the SSP also but nothing happened. Petitioner no.4 is a poor helpless lady and she is entitled for the legal custody of her children. Respondent no.4 is illegally detained from the legal custody of petitioner no.4, therefore, a writ of habeas corpus should be filed against respondent no.4 for production of petitioner nos. 1 to 3 in the Court and to ensure their safety and security.
It is clear that respondent no.4 Dharmendra Kumar is the husband of petitioner no.4 and it is admitted fact that three children have born out of their wedlock. Petitioners have attached the copy of the restitution petition filed in the family Court by the respondent no.4 and this petition has been filed on 4.9.2020 much before filing of this habeas corpus writ petition.
In the restitution petition respondent no.4 has specifically stated that the children are with him, moreover, respondent no.4 is the father. The matter pertains to the custody of children for which a legal remedy may be availed by petitioner no.4 in appropriate forum.
In such situation, petition for habeas corpus is not efficacious remedy nor it appears that children who are in the custody of petitioner no.4 are in illegal custody, respondent no.4 is admittedly their father. If there is any grievance, the petitioner no.4 is free to invoke other civil remedy. As such, I do not find any force in the habeas corpus writ petition, therefore, the habeas corpus writ petition is dismissed.
Order Date :- 6.5.2021 Mini