PRATYUSH SHASTRI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This Habeas Corpus Petition under Article 226 of the Constitution of India has been preferred by the father of the minor son seeking issuance of writ of habeas corpus for protection as also for custody of the minor son on the allegation of the minor being in illegal custody and detention of Respondent No.5, the maternal grandfather and Respondent No.6, the mother.

(2.) The petitioner-husband, in his petition has pleaded inter alia that his marriage with Respondent No.6 was solemnized on 15/2/2015 at Indore. After few days, the petitioner and Respondent No.6-wife/mother decided to move to Dubai where the petitioner was already working. From their wedlock, while the parties were residing at Dubai, a son was born on 23/6/2017 at Dubai. The mother of the child travelled to Jaipur from Dubai on 9/8/2017 and stayed there until she again came back. Further pleading reveals various events leading to differences and disputes, disturbing peace of married life. Respondent No. 6 again came to India along with minor son in the month of March, 2022. However, in a sudden turn of events, Respondent No.6 started making allegations against the petitioner and she refused to come back to Dubai with the child. The petitioner, thereafter, hurriedly came to India, but Respondent No.6 refused to meet or even allow the petitioner to meet the child. Respondent No.5, father of Respondent No.6 threatened the petitioner of dire consequences and, therefore, the petitioner had to return to Dubai alone on 8/4/2022. It is also pleaded that anticipating petitioner's move to seek custody of minor child, Respondent No.6 lodged FIR against the petitioner and his family members on 23/4/2022 inter alia alleging dowry demand and domestic violence etc. Respondent No.6 and her parents are not allowing the petitioner to meet his child. The petitioner earns handsomely and lives an affluent life at Dubai where the son was born and enrolled in educational institution. Son is getting best education and all other facilities at Dubai. Respondent No.6 has illegally removed the child from Dubai and brought him to India without the consent of the father and is illegally retaining the custody of the child in India. She does not have financial capacity to maintain herself and the minor son and she is financially dependent on the petitioner for all her needs including needs of the child. As compared to the mother, the father is in a better position to provide far more better education and other facilities for the growth and development of the child. The petitioner filed a petition before the Dubai Court for obtaining the passport of the child from Respondent No.6 and an order in his favour was passed directing Respondent No.6 to return the passport of the child to the petitioner and the child was illegally removed from Dubai to India. The child is a natural resident of his native country, i.e., Dubai and, therefore, as per local laws, taking out the child and keeping him away from Dubai without the consent of the father, is unlawful and amounts to illegal detention. It is adversely impacting on the welfare of the child. Ordinary remedy under the Guardians and Wards Act, 1890 (hereinafter referred to as 'the Act of 1890') is not available. It is also the case of the petitioner that the jurisdiction of the Court in Dubai has the most intimate contact to the issues. Continuance of the child with the mother is harmful to his welfare and best interest, for the reasons stated in the writ petition. Therefore, on such pleadings, petitioner has prayed for issuance of an order for handing over the custody of the child to the petitioner.

(3.) In rebuttal, through counter affidavit filed by Respondent No.6, the mother of the child as also Respondent No.5, Maternal Grandfather, relief sought in the writ petition has been opposed. Though facts regarding date and place of marriage as also the date and place of birth of child have not been disputed, maintainability of habeas corpus petition has been questioned on the ground that Respondent No.6 is the natural guardian of the child and it is not a case of illegal or wrongful detention as mother can never be said to be in illegal and wrongful detention of her own minor son. The petitioner on his own showing had allowed the mother to travel along with the minor son to India as he himself booked the flight tickets. Therefore, it cannot be said that the child was removed from the custody of the father without his knowledge or consent. The petition is merely an afterthought and counter blast to FIR lodged by the Respondent No.6 against the petitioner. The petition has been filed with an oblique motive to pressurise Respondent No.6 to withdraw FIR. The best interest of the child who is a minor of tender age lies with the mother, who is a well educated and independent lady. Minor son has already been enrolled in a prestigious school of Jaipur. According to Respondent No.6, the petitioner is a drug and sex addict and it would not be in the best interest of the child to allow custody of the child with person of such immorality. The petitioner or Respondent No.6 or the child none are the citizens of Dubai though child was born at Dubai. They all continue to be Indian Nationals holding Indian passports only. The order passed by the Court at Dubai does not decide the issue of custody on considerations regarding welfare of the minor child, but deals only with the technical issue of passport. It is not a straitjacket rule of law that a child who is 5 years of age should necessarily be given in the custody of the father, but on the other hand, the custody of the child may and should remain with the mother where the welfare of the minor is best sub-served in allowing him to remain in the custody of the mother. The petitioner has an alternative remedy. Respondent No.6 had lodged FIR because she was subjected to harassment, there were demand of dowry, domestic violence and offences have also been registered. Because of such dowry demands, domestic violence and harassment, Respondent No.6 is unable to reside with the petitioner and in such a situation that the parents are not residing together but have parted, the welfare of the minor son lies in allowing him to remain in custody of mother who will take care of all his needs of education, health as well as mental growth and physical development along with necessary love and affection, which may not be provided at Dubai by the petitioner.