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Madan Kumar Jha v/s State of Bihar

    CrWJC 685 Of 2005

    Decided On, 24 October 2005

    At, High Court of Bihar


    For the Appearing Parties: Lalit Kishore, Rajiv Kumar Verma, Rabindra Nath Kant, Advocates.

Judgment Text

(1.) In this criminal writ 'habeas corpus' petition under Article 226 of the Constitution of India, petitioner, Madan Kumar Jha, a school teacher, has sought for a direction of this Court for production of his three minor daughters from the custody of respondent No. 3, Shankar Thakur alias Babloo Thakur on the premises that his legally wedded wife, Veena Devi, is staying with respondent No. 3, and his children are with them.

(2.) It is the allegation that these three minor female children of the petitioner, allegedly, are in unlawful detention of respondent No. 3. F

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ollowing aspects, which have material bearing and relevance on the merits of the issue involved and are virtually not in controversy, may be highlighted at the outset:-

(a) The petitioner is the husband of Smt. Veena Devi and out of their wedlock three minor girls have been procreated;

(b) Wife of the petitioner, Veena Devi, is alleged to be living in adultery with respondent No. 3. Though such a serious allegation is there, but, she has not been impleaded as a party to this writ petition for the reasons not known to us;

(c) The petitioner-husband is a teacher, who is teaching the school boys and has the role of shaping the future of India by teaching the future generations;

(d) The husband-petitioner moved the concerned Court, unsuccessfully, by invoking the provisions of Section 98 of the Code of Criminal Procedure, 1973, Cr PC, for the custody of the minor daughters on the premises that they are in illegal detention of respondent No. 3;

(e) The statement of the minor children were recorded by the learned magistrate in course of the proceedings wherein, it was found that the children are staying with their mother since long, and they are not interested to go to their father, as well as, the father had, also, tortured and created cruelty for them;

(f) Being aggrieved by the order of the competent magisterial Court, in not getting favourable order under Section 98, Cr PC, the petitioner, in that proceeding, preferred a criminal revision before the learned Sessions Judge concerned. The learned Sessions Judge, upon consideration of the evidence, confirmed the view taken by the learned magistrate.

(3.) The petitioner has now filed the instant writ petition by invoking the provisions of the writ of habeas corpus, under Article 226 of the Constitution of India, reiterating the same grounds for claiming the custody of the minor daughters despite the fact that in the proceedings, before the two competent Courts, the children and the wife have not shown the slightest inclination in favour of the father/husband-petitioner.

(4.) The provisions of the writ of habeas corpus are to be utilised and the process of the Court is to be used for procuring and securing presence or production and release from the illegal detention of an authority or a person. It is never designed to invoke such provision for satisfaction of the party, prima facie, appearing to be wrong against the minor children who are not at all willing and who are, as such, not staying with the father. We are, therefore, tempted to conclude that this is nothing, but, misuse of the provisions of writ jurisdiction and that too in the matter of habeas corpus of this Court under Article 226 of the Constitution of India.

(5.) Let there be also articulation of one factum, which has material bearing which is relating to filing of a petition for a decree of divorce against the wife of the petitioner. A petition for a decree of divorce has been filed by the present petitioner- husband against his wife, Veena Devi, on the ground of adultery bearing Matrimonial Suit No. 39 of 2003, wherein respondent No. 3 Shankar Thakur @ Babloo Thakur is also a party, which is yet to be decided.

(6.) It appears to us that the petitioner has tried to short- circuit the procedure and to satisfy his ulterior desire and perception, has resorted to the constitutional writ remedy of habeas corpus under Article 226 of the Constitution of India, despite three proceedings in the past between the parties, one of which, the petition for divorce, still being under process.

(7.) After having taken into consideration the overall constitutional reality, the nature and type of grievance of the petitioner, who happens to be a teacher, incharge of shaping the future generation of this country, and who has, prima facie, neglected the three minor daughters and having failed in two proceedings before the two competent Courts and having initiated a divorce proceeding against his wife, in our opinion, such an attempt for claiming the custody of the minor daughters by filing this petition is nothing but gross abuse and misuse of the process of the Court and, that too, the constitutional writ process of the habeas corpus, which commands and demands that there should be an exemplary cost to be awarded. It is, therefore, while dismissing this criminal writ petition, we deem it necessary that it is incumbent upon us to direct the petitioner to pay a heavy cost.

(8.) In view of the aforesaid discussions and the glaring factual profile and the spectrum of circumstances, this criminal writ petition shall stand dismissed with cost which is quantified at Rs. 5,000/- (five thousand), to be deposited in the Registry of this Court, within a period of one month from today, failing which necessary proceedings for the recovery of. the cost shall be initiated, as an arrear of land revenue. The Registry is directed to bring to the notice of the Court, if the amount is not paid within the stipulated time. Upon the amount being paid, the Registry will seek the direction for disbursement of the amount.

(9.) With the above observation, this criminal writ petition for habeas corpus shall stand dismissed

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