Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.518 OF 2012
(ARISING OUT OF SLP(CRL.) NO.9113 OF 2011)
RASHMI AJAY KR. KESHARWANI & ANR. … APPELLANTS
VERUS
AJAY KR. KESHARWANI AND ORS. … RESPONDENTS
O R D E R
Leave granted.
2. Ist appellantRashmi is the wife and 2nd
appellant Aryan is the son of the Ist respondent
Ajay Kumar. The Ist appellant and the Ist respondent
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were married on 20 April, 2001 as per Hindu rites
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and out of their wedlock the 2 appellantAryan was
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born on 4 November, 2003.
In the present case the appellants have
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challenged the order dated 9 November, 2011 passed
by the Allahabad High Court in the Habeas Corpus Writ
Petition No.36326 of 2011, whereby the High Court
issued a nonbailable warrant against the Ist
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appellant to ensure her presence and the production
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of the 2 appellant.
3. According to the Ist appellant, since her
marriage, she was constantly subjected to mental and
physical torture by the Ist 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 house by the Ist 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 Ist appellantRashmi along with her son took
shelter at her parent’s home at Biwandi, District
Thane, Maharashtra.
4. The Ist respondentAjay Kumar filed a petition
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under Section 13(1)(a) of the Hindu Marriage Act,
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1955 on 18 April, 2006 being Marriage Petition No.
253/2006 before the Principal Judge, Family Court,
Allahabad for dissolution of marriage. In the said
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case by an ex parte order dated 6 February, 2007
the Family Court, Allahabad granted a decree of
judicial separation between the parties.
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5. The Ist respondenthusband 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.
6. The Ist appellant filed a Special Civil Suit
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being No.591 of 2007 under Hindu Marriage Act on 4
September, 2007 in the Court at Bhiwandi for return
of Stridhan and for maintenance. In the petition
under Section 24 of the Hindu Marriage Act, the Civil
Court allowed a maintenance of Rs.5,000/ each in
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favour of the Ist appellantwife and the son(2
respondent). Subsequently, having noticed that the
maintenance amount has been paid in favour of the
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appellants, the Court at Bhiwandi by order dated 18
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April, 2011directed the Ist respondenthusband to pay
arrears of Rs.4,90,000/ towards maintenance.
According to the Ist appellantwife, the Ist
respondenthusband 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
filed by the Ist appellantwife in the Court of the
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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 Ist respondenthusband and
others. The Court of the Judicial Magistrate First
Class, Bhiwandi in Criminal Case No.1013/2010 has
noticed that the Ist respondent has already appeared
before the Court at Bhiwandi.
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8. On 27 April, 2011 the Ist 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
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order dated 20 November, 2010 passed in Regular
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Criminal Case No.1013/2010 by the 4 Judicial
Magistrate First Class, Bhiwandi. In the said case,
the Ist respondenthusband has shown the address of
Ist appellantwife as follows:
“Smt. Rashmi Ajaykumar Kesarwani
Age:34 years, OccTeacher
Residing at M.H.No.31, Vishnu
Compound,
Above Monika W Sizining
AasBibi,
Kalyan Road, Bhiwandi,
Dist. – Thane.”
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Though on 27 April, 2011 the Ist 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 corpus under Section 226 of the Constitution
of India showing the Ist appellantwife as residing
at Allahabad with the following address:
“Smt. Rashmi Ajay Kumar
Kesherwani
Wife of Ajay Kumar Kesherwani
daughter of Sri Purshottam
Kesherwani Resident of House
No.849, Mutthiganj, Kanya
Chowraha Road, Police Station
Mutthiganj, District
Allahabad.”
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9. On 7 July, 2011, the learned Single Judge of
the Allahabad High Court while issuing a notice to
the first appellantwife (respondent No.4 in the
Habeas Corpus Writ Petition) making it returnable
within four weeks, called upon her to produce
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Aryan(petitioner No.1) on 10 August, 2011. The Ist
appellant having come to know of the case engaged a
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lawyer, who failed to appear. On 9 November, 2011,
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the learned Single Judge issued a nonbailable
warrant against the Ist appellantwife (respondent
No.4) through C.J.M., Allahabad ensuring her presence
before the Court. The said order is under challenge
in the present appeal.
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10. On 29 November, 2011 this Court issued a
notice to the Ist respondent and stayed the operation
of the impugned nonbailable warrant. Notice was
duly served on the Ist 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. 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 Ist respondent in the
different writ petition and applications and also to
the pleading made by the Ist respondent(second writ
petitioner) in the writ of habeas corpus.
12. We have heard the learned counsel for the
appellants and perused the documents filed along with
the appeal.
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13. A combined reading of the habeas corpus writ
petition filed by the Ist 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. 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 a week and thereafter she went to
her parents at Mumbai (Thane) and subsequently she
came back to Allahabad at petitioner NO.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
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 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.
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 No.3.
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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.
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 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 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 of
petitioner No.1.
13. That it is further very important to mention
here tht on 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 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 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 PetitionerNo.2 visited the house of
Respondent No.4 but Respondent No.4 did not allow
Petitioner No.2 to meet Petitioner No.1.
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16. That the petitioner No.2 again visited
respondent No.4 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 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 Ist respondent before the
Bombay High 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 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 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 02.02.2004 along with the
son Aryan and proceeded to stay with her parents
at Bhiwandi, DistThane.
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 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 the family members of
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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 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 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.”
Though the son is residing with his mother since
his birth, in the petition for habeas corpus, the son
has been shown as the Ist petitioner along with the
Ist respondent (husband), while the Ist appellant
wife has been shown as the respondent No.4 with
Allahabad address, as quoted hereunder:
“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.
2. Ajay Kumar Kesherwani son of Shri
Santosh Kumar Kesherwani Resident
of House No.249, Chak Zero Road,
Police Station Kotwali, District
Allahabad.
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… Petitioners
Versus
1. State of U.P. Through Principal
Secretary Ministry of Homes
Government of U.P. Lucknow.
2. D.I.G./S.S.P. Allahabad..
3. Station House Officer,
Police Station Mutthiganj,
District Allahabad.
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.
… Respondnets”
15. The Ist respondent misled the Court with a view
to obtaining an ex parte order will be evident from
two different addresses of the Ist appellant(wife)
shown in the two different 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.
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16. In the case of Capt.Dushyant Somal vs. Smt.
Sushma Somal 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 for the
custody of a child. For the reason aforesaid, we
hold that the impugned order of issuance of the non
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bailable warrant dated 9 November, 2011 passed by
the Allahabad High Court was uncalled for and
illegal and in the absence of any merit, the Habeas
Corpus Writ Petition No.36326 of 2011 is withdrawn
from the Allahabad High Court to this Court and is
dismissed. The appeal is allowed.
……………………………………………….J.
( G.S. SINGHVI )
……………………………………………….J.
( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
MARCH 12, 2012.