SOMENDRA PANT Vs. STATE OF M P

JUDGEMENT

(1.) 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.

(2.) I have heard both sides.

(3.) COUNSEL for the petitioner attempted to meet preliminary objection by placing reliance on 1952 NLJ 253 Note Vimalbai v. Baburao, AIR 1973 SC 2090; 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 :