RASHMI AJAY KR. KESHARWANI & ANR.versusAJAY KR. KESHARWANI AND ORS.

                    [2012] 4 S.C.R. 1153


         RASHMI AJAY KR. KESHARWANI & ANR.                       A
                              v.
            AJAY KR. KESHARWANI AND ORS.
             (Criminal Appeal No. 518 of 2012)
                      MARCH 12, 2012
                                                                 B
         [G.S. SINGHVI AND SUDHANSU JYOTI
                 MUKHOPADHAYA, JJ.]

     Constitution of India, 1950 - Article 226 - Writ of Habeas
Corpus - Maintainability ~ Matrimonial dispute between wife C
and husband - Both of them living separately - The son born
out of the wedlock living with the mother - In one petition filed
by the husband before the High Court address of the wife
shown to be of Maharashtra - Husband also filing writ of
Habeas Corpus, for producing the child before the Court D
wherein address of the wife was shown to be of Uttar Pradesh
- High Court issued non-bailable warrant against the wife - On
appeal, held: No case was made out to entertain a writ of
Habeaus Corpus - The case was filed by the husband with
wrong address to mislead the High Court - The allegation by E
the husband that the son has been illegally detained by his
mother is wrong as the son has been residing with his mother
since his birth - A writ of Habeas Corpus is not to be issued
in the matter of course, specially when the writ is sought
against a parent for the custody of a child - Writs.              F
    Capt. Dushyant Soma/ vs. Smt. Sushma Soma/ and Ors.
(1981) 2 sec 277 - relied on.

                     Case Law Reference:
    c1ss1) 2 sec 211               Relied on         Para 16     G

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 518 of 2012.

                            1153                                 H
    1154      SUPREME COURT REPORTS                [2012] 4 S.C.R.


A        From the Judgment and Order dated 09.11.2011 of the
    High Court of Judicature at Allahabad in Habeas Corpus Writ
    Petition No. 36326 of 2011.

        Shomila Bakshi for the Appellant.

B       R.K. Gupta, Suraj Singh, Pradeep Misra for the
    Respondent.

        The Order of the Court was delivered

                                ORDER
c
           1. Leave granted.

         2. 1st appellant-Rashmi is the wife and 2nd appellant- Aryan
    is the son of the 1st respondent-Ajay Kumar. The 1st appellant
o   and the 1st respondent were married on 20th April, 2001 as per
    Hindu rites and out of their wedlock the 2nd appellant-Aryan
    was born on 4th November, 2003.

       In the present case the appellants have challenged the
  order dated 9th November, 2011 passed by the Allahabad High
E Court in the Habeas Corpus Writ Petition No.36326 of 2011,
  whereby the High Court issued a non-bailable warrant against
  the 1st appellant to ensure her presence and the production of
  the 2nd appellant.

F       3. According to the 1st appellant, since her marriage, she
  was constantly subjected to mental and physical torture by the
  1st respondent and her in-laws for bringing insufficient dowry.
  After one and a half years since the birth of their son, both the
  appellants ( wife and the son) were driven out of the matrimonial
G house by the 1st respondent and her in-laws. The welfare and
  plight of the minor son was not thought of by them. Faced with
  such a situation, the 1st appellant-Rashmi along with her son
  took shelter at her parent's home at Biwandi, District Thane,
  Maharashtra.
H
  RASHMI AJAY KR. KESHARWANI & ANR. v. AJAY 1155
          KR. KESHARWANI AND ORS.

     4. The 1st respondent-Ajay Kumar filed a petition under         A
Section 13(1 )(a) of the Hindu Marriage Act, 1955 on 18th April,
2006 being Marriage Petition No. 253/2006 before the
Principal Judge, Family Court, Allahabad for dissolution of
marriage. In the said case by an ex parte order dated 6th
February, 2007 the Family Court, Allahabad granted a decree          B
of judicial separation between the parties.

     5. The 1st respondent-husband being dissatisfied with the
abovesaid order of Family Court, Allahabad has preferred a
First Appeal being No.292/2007 before the Allahabad High
Court to ensure the dissolution of marriage, which is pending.       C

      6. The 1st appellant filed a Special Civil Suit being No.591
of 2007 under Hindu Marriage Act on 4th September, 2007 in
the Court at Bhiwandi for return of Stridhan and for
maintenance. In the petition under Section 24 of the Hindu           D
Marriage Act, the Civil Court allowed a maintenance of
Rs.5,000/- each in favour of the 1st appellant-wife and the
son(2nd respondent). Subsequently, having noticed that the
maintenance amount has been paid in favour of the appellants,
the Court at Bhiwandi by order dated 18th April, 2011 directed       E
the 1st respondent-husband to pay arrears of Rs.4,90,000/-
towards maintenance. According to the 1st appellant-wife, the
1st respondent-husband has not yet paid any amount towards
maintenance and is in default of the Court's order.

     7. A Miscellaneous Application No.743/2010 has been
                                                                     F
filed by the 1st appellant-wife in the Court of the Judicial
Magistrate First Class, Bhiwandi under Section 13(1) of the
Protection of Women from Domestic Violence Act, 2005. A
criminal complaint under Section 498A of Indian Penal Code
has also been lodged by her against the 1st respondent-husband       G
and others. The Court of the Judicial Magistrate First Class,
Bhiwandi in Criminal Case No.1013/2010 has noticed that the
1st respondent has already appeared before the Court at
Bhiwandi.
                                                                     H
    1156     SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A      8. On 27th April, 2011 the 1st respondent along with two
  others (the father and mother of the husband) preferred an
  application under Section 482 of Criminal Procedure Code in
  the Bombay High Court in Criminal Application No.397/2011
  to set aside the order dated 20th November, 2010 passed in
B Regular Criminal Case No.1013/2010 by the 4th Judicial
  Magistrate First Class, Bhiwandi. In the said case, the 1st
  respondent-husband has shown the address of 1st appellant-
  wife as follows:
               "Smt. Rashmi Ajaykumar Kesarwani
c               Age:34 years, Occ-Teacher
               Residing at M.H.No.31, Vishnu Compound,
               Above Monika W Sizining AasBibi,
               Kalyan Road, Bhiwandi,
               Dist. - Thane."
D        Though on 27th April, 2011 the 1st respondent along with
    his parents filed a petition under Section 482 of Criminal
    Procedure Code before the Bombay High Court in Criminal
    Application No.397/2011 showing the Maharashtra address,
    after about one and half months he filed the writ of habeas
E   corpus under Section 226 of the Constitution of India showing
    the 1st appellant-wife as residing at Allahabad with the following
    address:

        "Smt. Rashmi Ajay Kumar Kesherwani Wife of Ajay Kumar
F       Kesherwani daughter of Sri Purshottam Kesherwani
        Resident of House No.849, Mutthiganj, Kanya Chowraha
        Road, Police Station Mutthiganj, District Allahabad."

        9. On 7th July, 2011, the learned Single Judge of the
  Allahabad High Court while issuing a notice to the first
G appellant-wife (respondent No.4 in the Habeas Corpus Writ
  Petition) making it returnable within four weeks, called upon her
  to produce Aryan(petitioner No.1) on 10th August, 2011. The
  1st appellant having come to know of the case engaged a lawyer,
  who failed to appear. On 9th November, 2011, the learned
H Single Judge issued a non-bailable warrant against the 1st
  RASHMI AJAY KR. KESHARWANI & ANR. v. AJAY 1157
          KR. KESHARWANI AND ORS.

appellant-wife (respondent No.4) through C.J.M., Allahabad          A
ensuring her presence before the Court. The said order is under
challenge in the present appeal.

     10. On 29th November, 2011 this Court issued a notice
to the 1st respondent and stayed the operation of the impugned
                                                                    8
non-bailable warrant. Notice was duly served on the 1st
respondent but he refused to accept the dasti notice. Notice
on other respondents Nos.2 to 4 was also served.

      11. The learned counsel for the appellants submitted that
no case was made out to entertain a writ of habeas corpus.          C
The High Court ought not to have issued any notice to the wife
rather it should have dismissed the writ in limine. Reference was
made to the addresses shown by the 1st respondent in the
different writ petition and applications and also to the pleading
made by the 1st respondent (second writ petitioner) in the writ     D
of habeas corpus.

    12. We have heard the learned counsel for the appellants
and perused the documents filed along with the appeal.

      13. A combined reading of the habeas corpus writ petition     E
filed by the 1st respondent before the Allahabad High Court
simultaneously with the criminal application filed by him, before
the Bombay High Court will show that no case is made out for
issuance of a writ of habeas corpus and that the said case was
filed with a wrong address to mislead the Allahabad High Court.     F
The relevant portion of the Habeas Corpus Writ Petition
No.36326 of 2011 reads as follows:

    "6. That after the aforesaid marriage respondent No.4
    lived with petitioner No.2 in her matrimonial home for about    G
    a week and thereafter she went to her parents at Mumbai
    (Thane) and subsequently she came back to Allahabad at
    petitioner N0.2's house and her behaviour became worse
    with petitioner No.2 and his family members and thereafter
    on 02.0.2004 she left her matrimonial home along with           H
    1158   SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A      Master Aryan petitioner No.1 and went away to her parents
       home and since then she did not return back.

       7. That the petitioner No.2 repeatedly visited and tried to
       persuade respondent No.4 to return back to her
       matrimonial home but she refused to return back and
B
       thereafter petitioner No.2 filed a divorce petition vide
       No.253 of 2006 Ajay Kumar Kesherwani Vs. Smt. Rashmi
       Kesherwani U/s 13(1 )(A) B of Hindu Marriage Act on 18/
       04/2006 before the Court of Judge Family Court,
       Allahabad.
c
       8. That the above noted divorce petition was decreed vide
       order dated 6.02.2007 and a decree for judicial separation
       was ordered by the Court of Principal Judge Family Court,
       Allahabad which was never challenged by respondent
D      No.3.

       9. That the petitioner No.2 used to regularly visit to meet
       his son petitioner No.1 and fulfilled his needs and tried his
       best to take care of his as he has all love and affection for
       him.
E
       10. That the respondent No.4 is a lady of modern life style
       and does not take care of her son master Aryan (Petitioner
       No.1) and she leaves him all alone at home as she leaves
       home early morning and returns back home late night due
F      to which petitioner No.1 is under deep mental agony and
       pressure.
       11. That the respondent No.4 has got master Aryan
       (Petitioner No.1) admitted in a very low standard school
G      and his education is being hampered as a result of which
       his future will be darkened.
       12. That the respondent No.4 is unable to provide proper
       resources to petitioner No.1 for his proper physical, mental
       and educational development which will darken the future
H      of petitioner No.1.
 RASHMI AJAY KR. KESHARWANI & ANR. v. AJAY                 1159
         KR. KESHARWANI AND ORS.

    13. That it is further very important to mention here tht on   A
    20/04/2011 master Aryan (Petitioner No.1) made a
    Telephone call to Petitioner No.2 and informed that a
    person regularly visits the home of respondent No.4 and
    spends time with respondent No.4 and he has heard them
    talking about their marriage which they are going to           B
    perform soon, due to which he is under great mental
    tension and therefore he wants to live with petitioner No.2
    and he is being illegally detained.

    14. That the petitioner No.1 has also informed petitioner      C
    No.2 that his mother (Respondent No.4) does not look after
    him as she never cares about him, she never takes interest
    in his studies and his needs and the behaviour of
    respondent No.4 is become cruel to him day by day.

    15. That upon receiving the aforesaid Telephonic call          D
    PetitionerNo.2 visited the house of Respondent No.4 but
    Respondent No.4 did not allow Petitioner No.2 to meet
    Petitioner No.1.

    16. That the petitioner No.2 again visited respondent No.4     E
    to meet his son Aryan (Petitioner No.1) in the month of
    May, 2011 but respondent No.4 did not allow petitioner
    No.2 to meet petitioner No.1 upon which petitioner No.2
    requested respondent No.4 either to send petitioner No.1
    with him or allow him to meet petitioner No.1 then             F
    respondent No.4 became angry and called her associates
    who misbehaved with the petitioner No.2 and threatened
    him with dire consequences."

     14. Other relevant statements made in the criminal
application filed by the 1st respondent before the Bombay High     G
Court reads as follows:

    "2. The Applicants state that the marriage of the Applicant
    no.1 was solemnized on 20.04.2011 with the Opponent
    no.1 at Allahabad as per the Hindu rites and customs. The      H
    1160   SUPREME COURT REPORTS                [2012] 4 S.C.R.

A      Applicant no.1 states that out of the said wedlock there is
       a son named Aryan aged 7 years. The Applicants state
       that the said marriage was an arranged marriage. The
       Applicants state that the Opponent no.1 wife resided at the
       matrimonial house from the date of the marriage, however
B      in a strange full and lonely manner with the Applicant no.1
       in absence of the marital obligations and responsibilities.
       The Applications state that the Opponent no.1 failed to
       perform her marital relations prudently. The Opponent no.1
       on her own left the matrimonial house at Allahabad on
c      02.02.2004 along with the son Aryan and proceeded to
       stay with her parents at Bhiwandi, Dist-Thane.

       3. The Applicants state that since then i.e. 02.02.2004
       there was no physical relation between the Applicant no.1
       and Opponent no.1 resulting the same in cruelty towards
D      the present Applicant no.1. The Applicants state that along
       with the cruelty to Applicant no.1 the behaviour of the
       Opponent no.1 was coupled with absolute disregard and
       disrespect to the other family members of the Applicant
       no.1. The Opponent no.1 used to daily dig out quarrels with
E      the family members of Applicant no.1 and always gave an
       insulting treatment to them.

       4. It would be appropriate to mention that prior to leaving
       the matrimonial house on her own on 02.02.2004, the
F      Opponent no.1 disclosed to the present Applicant no.1 that
       the said marriage of herself was forcefully performed
       against her wishes. The Applicant no.1 went under
       tremendous shock and depression on the Opponent no.1
       leaving the house on such grounds after about 3 years of
       the marriage. However, on frequent visits by the Applicant
G
       no.1 to the parental home of Opponent no.1 at Bhiwandi
       with a view to bring back the Opponent wife to the
       matrimonial house at Allahabad, the Opponent no.1 on
       every occasion flatly denied to resume back along with the
       Applicant no.1 at Allahabad."
H
  RASHMI AJAY KR. KESHARWANI & ANR. v. AJAY 1161
          KR. KESHARWANI AND ORS.

     Though the son is residing with his mother since his birth,      A
in the petition for habeas corpus, the son has been shown as
the 1st petitioner along with the 1st respondent (husband), while
the 1st appellant-wife has been shown as the respondent No.4
with Allahabad address, as quoted hereunder:
                                                                      B
      "1.   Aryan(Minor) through his father Ajay Kumar
            Kesherwani resident of House No.249 Chak Zero
            Road, Police Station Kotwali, District Allahabad.
            Presently Resident of House No.849, Mutthiganj,
            Arya Kanya Chowraha Road, Police Station
            Mutthiganj, District Allahabad.
                                                                      c
      2.    Ajay Kumar Kesherwani son of Shri Santosh Kumar
            Kesherwani Resident of House No.249, Chak Zero
            Road, Police Station Kotwali, District Allahabad.
                                                                      D
                                                  . . . Petitioners

                               Versus

      1.    State of U.P. Through Principal Secretary Ministry
            of Homes Government of U.P. Lucknow.                      E

      2.    D.l.G./S.S.P. Allahabad ..

      3.    Station House Officer, Police Station Mutthiganj,
            District Allahabad.
                                                                      F
      4.    Smt. Rashmi Ajay Kumar Kesherwani Wife of Ajay
            Kumar Keshwarni daughter of Sri Purshottam
            Kesherwani Resident of House No. 849, Mutthiganj,
            Arya Kanya Chowraha Road, Police Station
            Mutthiganj, District Allahabad.                           G
                                               . . . Respondents"

    15. The 1st respondent misled the Court with a view to
obtaining an ex parte order will be evident from two different
addresses of the 1st appellant(wife) shown in the two different       H
    1162     SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A petitions which were filed simultaneously in the month of April
  and June 2011. Though the son is residing with the mother, at
  Bhiwandi, Thane, Maharashtra, as is evident from the statement
  made by the 1st Respondent, an allegation has been made that
  the son has been illegally detained by his mother.
B
        16. In the case of Capt.Dushyant Soma/ vs. Smt. Sushma
  Soma/ and others reported in (1981) 2 SCC 277 this Court
  held that a writ of habeas corpus is not to be issued in the matter
  of course, particularly when the writ is sought against a parent
C for the custody of a child. For the reason aforesaid, we hold
  that the impugned order of issuance of the non-bailable warrant
  dated 9th November, 2011 passed by the Allahabad High Court
  was uncalled for and illegal and in the absence of any merit,
  the Habeas C~rpus Writ Petition No.36326 of 2011 is
  withdrawn from the Allahabad High Court to this Court and is
D dismissed. The appeal is allowed.

   K.K.T.                                          Appeal allowed.