JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO ZALBAversusTHE STATE OF WEST BENGAL & ORS.

                        [2021] 6 S.C.R. 767                              767


  JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE                          A
                 ANTONIO ZALBA
                                  v.
             THE STATE OF WEST BENGAL & ORS.
              (Writ Petition (Criminal) No. 318 of 2020)                 B
                           JULY 28, 2021
    [VINEET SARAN AND DINESH MAHESHWARI, JJ.]
       Constitution of India – Art. 32 – Habeas Corpus Petition –
For custody of minor children – Maintainability – Petitioner had
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married respondent no.6 and they have two minor children –
Disputes between petitioner and respondent no.6 – Habeas Corpus
Petition filed u/Art.32 by petitioner, a citizen of Spain, for custody
of the two minor children who were living with respondent no.6 in
India – Preliminary objection raised by respondent no.6 with regard
to maintainability of the Habeas Corpus petition, particularly when      D
a petition filed by the petitioner under the Guardians and Wards
Act for custody of the children was pending before the trial court –
Held: In the present case, the admitted facts being that respondent
no.6 (mother) had the custody of the two minor children, for which
the petitioner (father) had already filed a petition u/s.12 of the
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Guardians and Wards Act, which is pending consideration; and the
custody of the children with the mother, who is a natural guardian,
cannot be said to be illegal and, thus, the petition for habeas corpus
would not be maintainable and that too directly u/Art.32 of the
Constitution – The statutory remedy available under the Guardians
and Wards Act is the appropriate remedy, which has already been          F
availed by the petitioner – There are no extra ordinary or exceptional
circumstances in the present case requiring the Supreme Court to
exercise its jurisdiction u/Art. 32 of the Constitution – The remedy
already availed by the petitioner is an appropriate and effective
remedy, where all the questions raised herein regarding the welfare
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and well-being of the children can be considered in accordance
with law – Guardians and Wards Act, 1890 – s.12 – Family Law –
Child custody.
      Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67 :
      [2020] 1 SCR 417 – distinguished.
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                                 767
768             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A           Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
            (2019) 7 SCC 42 : [2019] 7 SCR 335 and Soumitra
            Kumar Nahar v. Parul Nahar (2020) 7 SCC 599 –
            referred to.
                               Case Law Reference
B     (2020) 7 SCC 599                  referred to             Para 6
      [2020] 1 SCR 417                  distinguished           Para 6
      [2019] 7 SCR 335                  referred to             Para 7
            CRIMINAL ORIGINAL JURISDICTION: Writ Petition
C     (Criminal) No. 318 of 2020
            (Under Article 32 of the Constitution of India)
            P. S. Narasimha, Sr. Adv. (AC)
            Petitioner-in-person.
D          Sidharth Luthra, Sr. Adv., Soumitra G. Chaudhuri, Ms. Puja Kumari
      Shaw, Chanchal Kumar Ganguli, Kumar Mihir, Advs. for the
      Respondents.
            The following Order of the Court was passed :

E                                      ORDER
            1. This Habeas Corpus Petition has been filed under Article 32 of
      the Constitution of India by the petitioner (father) for the custody of his
      two minor children.
             2. The brief facts of the case are that the petitioner had married
F     the respondent No. 6 and they have a son aged about 15 years and a
      daughter aged about 10 years. The petitioner is a citizen of Spain. There
      being some disputes between the petitioner (husband) and respondent
      No. 6/wife, the respondent No. 6/wife left the petitioner along with the
      two minor children. The petitioner thereafter filed a case under Section
      12 of the Guardians and Wards Act, 1890 (hereinafter referred to as
G
      “the Act”) for the custody of two minor children, before the 10th Additional
      District Judge, Alipore, Kolkata, which is numbered as Case No. 88 of
      2017. The said case for custody is still pending before the said Court.
      Further a case under the Protection of Women from Domestic Violence
      Act,2005 has also been filed by respondent No. 6/wife against the
H     petitioner, which is also pending. In the said case, some maintenance
JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO                           769
       ZALBA v. THE STATE OF WEST BENGAL & ORS.

amount was granted in favour of respondent No. 6/wife, which was                A
challenged before the High Court and the same has been reduced. The
same is not an issue in this petition.
       3. In the background of the aforesaid facts and circumstances,
the petitioner has filed this writ petition with the following prayers:
      “(i) Issue an appropriate writ/order/direction in the nature of Habeas    B
      Corpus to issue directing and commanding the Respondent Nos.2,
      3, 4 and 5 to produce Siddhartha Aupa Zalba Mahapatra and
      Ikantika Margarita Zalba Mahapatra before this Hon’ble Court
      ensuring protection of their rights and their best interest from the
      custody of the respondent no.6.                                           C
      (ii) Issue an appropriate writ/order/direction in the nature of
      Mandamus directing the Respondents No.2, 3, 4 and 5 to hand
      over the custody of the said Siddhartha Aupa Zalba Mahapatra
      and Ikantika Margarita Zalba Mahapatra subject to the outcome
      of Act VIII Case No.88 of 2017 pending before the Learned 10th
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      Additional District Judge, Alipore for ensuring proper protection
      of their rights by shifting the children from Kolkata, India to Spain,
      the safest option available to the children;
      (iii) Issue an appropriate writ/order/direction in the nature of
      Certiorari directing the respondents to produce the records of the
      case in connection with Act VIII Case No.88 of 2017 presently             E
      pending before the Learned 10th Additional District Judge, Alipore
      before this Hon’ble Court so that conscionable justice may be
      administered after scrutinizing the same.
      (iv) Interim order directing the Respondents concerned and to
      render police assistance for protecting the life and property of the      F
      children of the petitioner and the respondent no.6, namely,
      Siddhartha Aupa Zalba Mahapatra and Ikantika Margarita Zalba
      Mahapatra.
      (v) Interim order directing the children to be taken from Kolkata,
      India to Spain and live under the care and protection of their paternal   G
      family including the petitioner and be housed at their paternal family
      home in Spain.”
       4. We have heard the petitioner, who has appeared in-person, as
well as Mr. Sidharth Luthra, learned senior counsel appearing on behalf
of respondents no. 1 to 5 along with Mr. Chanchal Kumar Ganguli and             H
770             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     Mr. Anuj Prakash, learned counsel for respondent no. 6 /wife and perused
      the record. We have also heard Mr. P.S. Narasimha, learned senior
      counsel who was appointed as Amicus Curiae to assist the court.
             5. The fact that the petition for custody of the children under
      Section 12 of the Act is pending, has not been disputed. The pendency
B     of the said case would also be clear from the perusal of the prayers
      made in this petition, which have been extracted above. A preliminary
      objection has been raised by Shri Anuj Prakash, learned counsel for the
      Respondent no.6 with regard to the maintainability of this petition,
      particularly when the petition filed by the petitioner under the Guardians
      and Wards Act for custody of the children is pending before the Trial
C     Court.
              6. The petitioner has submitted that this petition has been filed to
      ensure the safety of, and in the best interest of the minor children. It is
      contended that respondent No. 6/wife along with two minor children is
      staying in Kolkata, which is a red zone for COVID-19, whereas the
D     petitioner being a resident of Spain can take the children to Spain, which
      is a much safer place and has better medical facilities. It is also contended
      that at present the petitioner is staying in Shantiniketan, which is a green
      zone for COVID-19 and, thus, the children would be safer with the
      petitioner in Shantineketan. It is also submitted that the children have
E     been illegally taken away by respondent No. 6/wife and the petitioner is
      wrongly deprived of their custody. The petitioner has submitted that the
      children have the right to live with their father, as both the parents have
      right for the custody of their children. In support thereof, he relied upon
      the decisions of this Court in “Soumitra Kumar Nahar Vs. Parul Nahar”
      (2020) 7 SCC 599 and “Yashita Sahu Vs. State of Rajasthan” (2020) 3
F     SCC 67. It is further contended by the petitioner that though the petition
      for custody of the children under the Guardians and Wards Act is pending
      before the Trial Court but in the given circumstances, the respondent no.
      6/wife be directed by this Court to handover the custody of the children
      to the petitioner.
G            7. Per contra, Mr. Sidharth Luthra, learned senior counsel
      appearing for the State/respondents has submitted that in view of the
      fact that the petition for custody of the children is pending before the
      Trial Court, this writ petition under Article 32 of the Constitution of India
      would not be maintainable. In support thereof, he placed reliance upon
H     the two decisions of this Court in “Tejaswini Gaud Vs. Shekhar Jagdish
JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO                              771
       ZALBA v. THE STATE OF WEST BENGAL & ORS.

Prasad Tewari” (2019) 7 SCC 42 and “Yashita Sahu Vs. Sate of                       A
Rajasthan” (2020) 3 SCC 67. It is further contended that in the counter
affidavit filed by the State, it has categorically been stated that the position
of pandemic in the State of West Bengal is well under control and it
cannot be said that the children will not be safe with the mother in Kolkata.
       8. Mr. P.S. Narasimha, learned Amicus has very fairly placed the            B
position of law relating to the present matter.
        9. Mr. Anuj Prakash, learned counsel for respondent No. 6/wife
has supported the submissions of Mr. Luthra with regard to the non-
maintainability of this Habeas Corpus Petition, especially when the custody
of the children is with the mother, who is a natural guardian. It is contended     C
that the maintenance amount awarded by the Trial Court under the
provisions of the Protection of Women from Domestic Violence Act,2005
has not been paid by the petitioner to respondent No. 6/wife which would,
according to the learned counsel, clearly demonstrate that the petitioner
has no concern for the wellbeing of respondent No. 6/wife or the children.
It is lastly contended that in case the petitioner is given custody of the         D
children and he takes the children to Spain, they would be outside the
territorial jurisdiction of the Trial Court, where the petition for custody of
the children under the provisions of the Act is pending. With regard to
the safety of the children, it has been contended that respondent No.6/
wife, along with children are staying in Kolkata, and since March 2020,            E
two waves of pandemic (COVID-19) have already passed, and
respondent no. 6/wife as well as two minor children are completely safe.
       10. Having heard the petitioner as well as the learned counsel for
the parties and on perusal of the record, before going into the merits of
the claim of the petitioner, the preliminary question to be decided by this        F
Court would be with regard to the maintainability of this petition.
       11. It cannot be disputed that both the parents may have a right
for custody of their children but the said question of custody is to be
considered and decided after evidence is adduced by the parties, and
after following the due procedure, which would be under the provisions             G
of the Guardians and Wards Act; and the petitioner has already filed a
petition under the said Act, which matter is pending consideration before
the Trial Court in Kolkata.
      12. The decision in Yashita Sahu(supra) is distinguishable on facts.
The said case related to a matter in which both the parents, along with
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772             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     the children, were residing in United States and since there were disputes
      between the husband and wife, and the wife had taken away the children
      and started living separately, the father filed a petition for custody of the
      children before the court in the United States, which directed the wife to
      produce the children and instead the wife took the children from United
      States to India. It was in such circumstances that in a Habeas Corpus
B
      Petition before the Rajasthan High Court, the High Court directed the
      wife to return to the United States along with the minor daughter within
      six weeks to enable the territorial jurisdictional court in United States to
      pass further orders in the proceedings already pending there. It was in
      the aforesaid facts that the writ petition for Habeas Corpus was held to
C     be maintainable. This Court in the case of Tejaswini Gaud (supra) has
      categorically laid down the law with regard to the maintainability of Habeas
      Corpus Petition in Paragraphs No. 19 & 20, which are extracted below:
            “19. Habeas corpus proceedings is not to justify or examine the
            legality of the custody. Habeas corpus proceedings is a medium
D           through which the custody of the child is addressed to the discretion
            of the court. Habeas corpus is a prerogative writ which is an
            extraordinary remedy and the writ is issued where in the
            circumstances of the particular case, ordinary remedy provided
            by the law is either not available or is ineffective; otherwise a writ
            will not be issued. In child custody matters, the power of the High
E           Court in granting the writ is qualified only in cases where the
            detention of a minor by a person who is not entitled to his legal
            custody. In view of the pronouncement on the issue in question by
            the Supreme Court and the High Courts, in our view, in child custody
            matters, the writ of habeas corpus is maintainable where it is
F           proved that the detention of a minor child by a parent or others
            was illegal and without any authority of law.
            20. In child custody matters, the ordinary remedy lies only under
            the Hindu Minority and Guardianship Act or the Guardians and
            Wards Act as the case may be. In cases arising out of the
G           proceedings under the Guardians and Wards Act, the jurisdiction
            of the court is determined by whether the minor ordinarily resides
            within the area on which the court exercises such jurisdiction.
            There are significant differences between the enquiry under the
            Guardians and Wards Act and the exercise of powers by a writ
            court which is of summary in nature. What is important is the
H           welfare of the child. In the writ court, rights are determined only
JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO                               773
       ZALBA v. THE STATE OF WEST BENGAL & ORS.

       on the basis of affidavits. Where the court is of the view that a            A
       detailed enquiry is required, the court may decline to exercise the
       extraordinary jurisdiction and direct the parties to approach the
       civil court. It is only in exceptional cases, the rights of the parties
       to the custody of the minor will be determined in exercise of
       extraordinary jurisdiction on a petition for habeas corpus.”
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                                                         Emphasis supplied
       13. In the present case, the admitted facts being that the mother
has the custody of two minor children, for which the petitioner(father)
has already filed a petition under Section 12 of the Act, which is pending
consideration; and the custody of the children with the mother, who is a            C
natural guardian, cannot be said to be illegal and, thus, the petition for
habeas corpus would not be maintainable and that too directly under
Article 32 of the Constitution of India. While saying so, we are not going
into the question whether the maintenance amount directed by the Trial
Court in the proceedings under the Protection of Women from Domestic
Violence Act,2005 has been paid or not. The statutory remedy available              D
under the Guardians and Wards Act is the appropriate remedy, which
has already been availed by the petitioner. There are no extra ordinary
or exceptional circumstances in the present case requiring this Court to
exercise its jurisdiction under Article 32 of the Constitution of India. The
remedy already availed by the petitioner is an appropriate and effective            E
remedy, where all the questions raised herein regarding the welfare and
wellbeing of the children can be considered in accordance with law,
after appreciation of the evidence, which may be led by the parties.
      14. Accordingly, we dismiss this writ petition on the ground of
maintainability. However, we request the 10th Additional District Judge,            F
Alipore, Kolkata to hear and decide the pending case No. 88 of 2017 as
expeditiously as possible, and in accordance with law, preferably within
six months from the filing of a certified copy of this order, along with an
application for expeditious disposal of the pending case.
      15. Before parting, we express our gratitude for the able assistance          G
rendered by Mr. P.S. Narsimha learned senior counsel, who was
appointed as Amicus Curiae by this Court.

Bibhuti Bhushan Bose                                     Writ Petition dismissed.

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