Matrimonial Dispute, No Illegal Detention: Calcutta High Court Dismisses Father's Habeas Corpus Petition For Custody
The Calcutta High Court on Wednesday dismissed a Habeas Corpus writ petition filed by a father, for the production his children who are residing with their mother, on the ground that the ordinary remedy is available under the Guardians and Wards Act in child custody matters.The division bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee observed:“Indisputably there...
The Calcutta High Court on Wednesday dismissed a Habeas Corpus writ petition filed by a father, for the production his children who are residing with their mother, on the ground that the ordinary remedy is available under the Guardians and Wards Act in child custody matters.
The division bench of Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee observed:
“Indisputably there is a matrimonial dispute between the petitioner and his wife. Allegations and counter-allegations have been levelled by the parties against each other which is required to be examined with reference to evidence.”
“There are significant differences between the enquiry under Act VIII and the exercise of powers by a writ Court which is summary in nature”, the bench added.
It was the case of the petitioner that his wife along with her minor children and parents-in-law left the matrimonial home in Hyderabad to attend a marriage ceremony on November 19, 2022. She de-boarded the train in between with her minor children assuring her parents-in-law that she would attend the marriage ceremony along with her children.
The petitioner alleged that, however, no intimation was given by the petitioner’s wife and since then she along with her children are missing.
The petitioner stated that he has approached police and Child Welfare Committee but no action was taken. Hence, the petitioner filed the habeas corpus petition before the High Court.
Advocate for the petitioner, Ayan Poddar submitted before the court that the petitioner is the natural guardian of his children and the petitioner’s wife should be directed to hand over the custody of the children.
He further submitted that for determination of the issue of custody of children, it is not the right of the parties but welfare of the children which is of determinative significance.
Simanta Kabir, the counsel appearing for the State submitted that there is a matrimonial dispute between the petitioner and his wife. It was further highlighted that the petitioner’s wife has lodged a complaint under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty), Section 406 (Punishment for criminal breach of trust) of IPC and under Section 3 (Penalty for giving or taking dowry) and Section 4 (Penalty for demanding dowry) of the Dowry Prohibition Act against her husband and in-laws and they were granted bail in the matter.
It was also submitted by the counsel for the State that the children are presently residing with their mother at her parental house and minor son of the petitioner has been admitted in a school.
The court held that there is a material dispute between petitioner and his wife and there were no material on record which showed that the petitioner’s wife and her children had been illegally detained.
The court further held:
“From the pleadings and documents placed before us we do not find any clinching material to infer that the welfare of the minor children is at peril.”
Accordingly, the court dismissed the writ petition.
Case Title: Sri Saikat Ghosh v. The State of West Bengal & Ors.
Citation: 2023 LiveLaw (Cal) 54
Coram: Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee