ALIYA SHAMIM Vs. STATE

JUDGEMENT

(1.) HAVING failed to persuade respondent No. 5 to join him alongwith the Minor daughter, the petitioner has sought a writ of Habeas Corpus and Subjiciendum. The respondent No. 5 however, submits that these proceedings lack sincerity and have been resorted to with an oblique motive, the motive being to exert undue pressure. It is accordingly submitted that the petition having not been initiated bonafide deserves rejection at the very threshold. A second petition bearing No. 695 of 1997 has been filed on behalf of the minor. She wants conferment of citizenship of this country. Reference to that would be made at appropriate place. Both these petitions concern the minor and are being dealt with together.

(2.) FACT in HCW 846 of 1997 are as under: The petitioner is admittedly the father of a minor female child. She was born out of a wedlock between the petitioner and respondent No.5. The marriage took place in Delhi. This happened in 1984. The petitioner is a Pakistan National. The respondent No.5 was and is still an Indian National. She has however, been going abroad on the basis of India Passport. After the marriage, the couple left for Dubai i.e., United Arab Emirates. The minor whose custody is sought by the petitioner in this writ of Habeas Corpus was born in Dubai. She was born on 17.8.1985. She is as such less than 13 years of age. This fact is sought to be evidenced by placing reliance on a birth certificate. This is dated 29.8.1985. The further fact is that in the year 1994, the petitioner alongwith his wife and minor daughter came to India. They had a valid visa. This visa was valid for period of 30 days. In terms of the visa, the petitioner submits that his minor daughter could remain in Delhi only. The petitioner left for Dubai after short stay in Delhi for a period of two days. Thereafter, the respondent No.5 and the minor daughter who have continued to stay in India shifted their place of abode this State.

(3.) IT is the further case of the petitioner that he has been getting the Visa extended from time to time. He has also been sending money for the proper maintenance of respondent no.5 and also the daughter. Requisite averments have been made in para 10 of the writ petition. As the respondent No.5 abandoned her intention to go back and as the daughter is in her custody, this has led the petitioner to file the present petition in this Court. He is as indicated above seeking a writ of Habeas Corpus. According to him, he is entitled to the writ because the minor is in illegal detention. With a view to project this aspect of the matter, it is argued that whenever the detention is illegal, a writ of Habeas Corpus can be issued. According to the counsel, the detention is illegal because the minor could legally remain in Delhi in terms of the visa granted to her. The fact that minor has been brought to the State of Jammu and Kashmir contrary to law has been highlighted to contend that this would render her stay in this State illegal and the consequential stay with respondent No.5 also illegal. It is this aspect of the matter which has been projected with a view to contend that this is a case of illegal detention and this Court should issue a writ of Habeas Corpus. In any case it is stated that minor is under an illegal restraint.