Heard Sri Babu Lal Ram, learned counsel for the petitioners and Sri Pankaj Saxena, learned A.G.A.-1 appearing for the State respondents and Sri Harshit Gupta, Advocate who states that he has received instructions on behalf of the petitioner no. 2 and has filed his vakalatnama in the registry on 19.02.2021.
Pursuant to the rule nisi issued earlier, the petitioner no. 2 has been produced in Court today by Sri Vikas Kumar Singh, Sub-Inspector, Sri Raju Yadav, Constable and Ms. Katyani Singh, Lady Constable, at Police Station Mutthiganj, District Prayagraj who have identified the said petitioner.
On the basis of an enquiry from the petitioner no. 2, the learned A.G.A. submits that she has stated that she is living at her maternal home on her own volition and free will and that she does not wish to go back to the petitioner no. 3.
The pleadings in the writ petition clearly indicate the existence of a dispute between the petitioner nos. 2 and 3 (husband and wife) for which reason the petitioner no. 2 on 29.08.2018 is stated to have left her matrimonial home along with her minor son (petitioner no. 1), and since then she is living at her parental home. Certain applications are also stated to have been moved by the petitioner no. 3 claiming visitation rights for permission to meet the petitioner no.1 (minor son). It has also been admitted that a divorce suit, Case No. 404 of 2019 (Smt. Shreya Mishra Vs. Ajay Kumar Chaturvedi) under Section 13 of the Hindu Marriage Act, 1955, is pending before the court of Principal Judge, Family Court, Allahabad in which the parties have put in their appearance and the matter is being contested.
Counsel for the petitioners while fairly admitting the pendency of the divorce suit and other disputes between the parties has sought to raise a grievance that the petitioner no. 3 is not being permitted to meet the petitioner no. 1, his minor son, and also seeks to raise a claim with regard to his custody.
Learned A.G.A. appearing for the State respondents and the learned counsel who has put in appearance on behalf of the petitioner no. 2 submit that from the pleadings in the petition itself it is admitted that the petitioner no. 2 left her matrimonial home due to differences/dispute with the petitioner no. 3 and that she is staying at her maternal home at her own volition. It is accordingly submitted that it is not a case of any kind of illegal detention and the present petition for a writ of habeas corpus is not entertainable and is liable to be dismissed.
Counsel for the petitioners has not been able to dispute the aforesaid factual and legal position.
Upon a consideration of the stand taken by the petitioner no. 2, it is evident that she is not in any kind of illegal detention and that she is staying at her parental home on her own free will.
Having regard to the aforesaid, there is no reason to make the rule nisi absolute. It is accordingly discharged.
The facts of the case as noticed above indicate that there appears to be a matrimonial dispute between the parties and for the said reason the petitioner no. 2 left her matrimonial home along with her minor son and that she is staying at her maternal home on her own sweet will and volition.
Having regard to the aforesaid, recourse to a petition seeking a writ of habeas corpus to secure custody of the wife would be an abuse of process of the Court.
Accordingly, the petition is dismissed with costs of Rs. 10,000/-. The amount of Rs. 10,000/- shall be deposited by the petitioner no. 3 with the Registrar General of the Allahabad High Court within one month from today which would be paid over to the petitioner no. 2 after due verification.
Order Date :- 3.2.2021 Pratima (Dr.Y.K.Srivastava,J.)