Rashmi Ajay Kr.Kesharwani vs Ajay Kr.Kesharwani And Ors

2. Ist appellant-Rashmi is the wife and 2nd appellant- Aryan is the son of the Ist respondent-Ajay Kumar. The Ist appellant and the Ist 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.

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 appellant-Rashmi along with her son took shelter at her parent’s home at Biwandi, District Thane, Maharashtra.

4. The Ist respondent-Ajay Kumar filed a petition under 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 of judicial separation between the parties.

5. The Ist 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.

6. The Ist 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 Marriage Act, the Civil Court allowed a maintenance of Rs.5,000/- each in favour of the Ist 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, 2011directed the Ist respondent-husband to pay arrears of Rs.4,90,000/- towards maintenance. According to the Ist appellant-wife, the Ist 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 filed by the Ist 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 Ist respondent-husband 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.

10. On 29th November, 2011 this Court issued a notice to the Ist respondent and stayed the operation of the impugned non-bailable 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.

… Petitioners Versus

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”

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-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 Corpus Writ Petition No.36326 of 2011 is withdrawn from the Allahabad High Court to this Court and is dismissed. The appeal is allowed.