Delhi High Court – Orders
Esha Jain vs The State Of Nct Of Delhi & Ors on 21 April, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1179/2025
ESHA JAIN .....Petitioner
Through: Mr. C.M. Grover, Ms. Payal
Budhiraja and Ms. Kashish
Dhawan, Advs.
versus
THE STATE OF NCT OF DELHI & ORS. ....Respondents
Through: Mr. Sanjay Lao, Standing
Counsel (Criminal) for State
with Ms. Priyam Aggarwal, Mr.
Abhinav Kr. Arya and Mr.
Aryan Sachdeva, Advs. along
with Inspector Om Prakash
Mr. Santosh Kumar Sr. Adv.
with Mr. Anirudh Kumar
Pandey, and Mr. Rajeev
Katyain Advs. for R-4.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
ORDER
% 21.04.2025
1. The present petition has been filed by the Petitioner- Esha Jain
under Article 226 of the Constitution of India read with Section 528 of
the Bharatiya Nyaya Sanhita, 2023, inter alia, seeking the following:-
“a. pass a direction under articles 226 of the constitution of India
read with section 528 of Bhartiya Nyay Sanhita, 2023 for issuance
of writ of habeas corpus thereby directing the respondent no. 4 to 6
to produce the master “A.K.” aged about 5 year old i.e., respondent
no.7 before this hon’ble court;
b. pass a direction under articles 226 of the constitution of India
read with section 528 of Bhartiya Nyay Sanhita, 2023 for issuance
of writ of habeas corpus thereby directing the respondent no. 4 to 6
to handover the master “A.K.” to the petitioner before this hon’bleThis is a digitally signed order.
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court;
c. pass any other orders or directions which this Hon’ble Court may
deem fit and proper in the facts and circumstances of the case, in
the interest of justice.”
2. The petitioner has approached this Court for production of the
body of her son, who, according to the Petitioner has been illegally
taken by the father i.e. Respondent no. 4- Mr. Sumedh Kaushal.
3. Material on record indicates that the marriage of the Petitioner
and Respondent no. 4 has been solemnized on 29.11.2023. A child
was born on 20.08.2019. The child is therefore above five years of
age. Ordinarily, in matters of custody, Habeas Corpus petitions are not
entertained. However, keeping the welfare of the child in mind, the
High Courts do entertain writ petitions, provided more detailed
inquiry is necessitated.
4. The Apex Court in Tejaswini Gaud and Ors. v. Shekhar
Jagdish Prasad Tewari and others [2019] 7 S.C.R 335 has held the
following:-
“19. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a medium
through which the custody of the child is addressed to the
discretion of the Court. Habeas corpus is a prerogative writ which
is an extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy provided by
the law is either not available or is ineffective; otherwise a writ will
not be issued. In child custody matters, the power of the High
Court in granting the writ is qualified only in cases where the
detention of a minor by a person who is not entitled to his legal
custody. In view of the pronouncement on the issue in question by
the Supreme Court and the High Courts, in our view, in child
custody matters, the writ of habeas corpus is maintainable where it
is proved that the detention of a minor child by a parent or others
was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and
Wards Act as the case may be. In cases arising out of theThis is a digitally signed order.
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proceedings under the Guardians and Wards Act, the jurisdiction of
the court is determined by whether the minor ordinarily resides
within the area on which the court exercises such jurisdiction.
There are significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a writ
court which is summary in nature. What is important is the welfare
of the child. In the writ court, rights are determined only on the
basis of affidavits. Where the court is of the view that a detailed
enquiry is required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach the
civil court. It is only in exceptional cases, the rights of the parties
to the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus.
xxx xxx xxx
26. The court while deciding the child custody cases is not bound
by the mere legal right of the parent or guardian. Though the
provisions of the special statutes govern the rights of the parents or
guardians, but the welfare of the minor is the supreme
consideration in cases concerning custody of the minor child. The
paramount consideration for the court ought to be child interest and
welfare of the child.
xxx xxx xxx
35. The welfare of the child has to be determined owing to the facts
and circumstances of each case and the Court cannot take a
pedantic approach. In the present case, the first respondent has
neither abandoned the child nor has deprived the child of a right to
his love and affection. The circumstances were such that due to
illness of the parents, the appellants had to take care of the child for
some time. Merely because, the appellants being the relatives took
care of the child for some time, they cannot retain the custody of
the child. It is not the case of the appellants that the first respondent
is unfit to take care of the child except contending that he has no
female support to take care of the child. The first respondent is
fully recovered from his illness and is now healthy and having the
support of his mother and is able to take care of the child.”
The same rationale has been affirmed in Nirmala v. Kulwant Singh
[2024] 10 SCC 595.
5. The father/Respondent no. 4 and the mother/Petitioner and the
child are present in Court. This Court interacted with the father and
the mother, they are both well-educated and both of them have assured
this Court that the interest of the child is paramount.
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6. The parents have also assured this Court that they will not make
the child a victim of their inter-personal differences.
7. Since the child has been traced and recovered, and in view of
the judgments noted above, we dispose of the instant writ petition with
the following directions:
(i) That the child shall be with the mother from Monday to
Friday.
(ii) That the child shall be with the father on weekends i.e.
Saturday and Sunday.
(iii) The father shall ensure that the child is picked up after
school hours on Friday and dropped back in time, to
attend school on Monday morning.
8. The Petitioner and Respondent no. 4 are directed to approach
the Delhi High Court Mediation and Conciliation Centre on 25th April
at 04:30 PM.
9. The Mediation Centre is directed to ensure that a Senior
Mediator is appointed to resolve the differences between the husband
and the wife.
10. The writ petition is disposed of with these directions.
11. This Court has not made any observations on the rights and
contentions of the parties, in case the parties decide to approach the
Court of competent jurisdiction for custody of the child.
SUBRAMONIUM PRASAD, J.
HARISH VAIDYANATHAN SHANKAR, J.
APRIL 21, 2025/nd
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 23/04/2025 at 22:12:11