JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO ZALBA versus THE STATE OF WEST BENGAL & ORS.

Citation: [2021] 6 S.C.R. 767 · Decided: 28-07-2021 · Supreme Court of India · Bench: VINEET SARAN, DINESH MAHESHWARI · Disposal: Dismissed
cites 2 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

A
B
C
D
E
F
G
H
767
[2021] 6 S.C.R. 767
767
JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE
ANTONIO ZALBA
v.
THE STATE OF WEST BENGAL & ORS.
(Writ Petition (Criminal) No. 318 of 2020)
JULY 28, 2021
[VINEET SARAN AND DINESH MAHESHWARI, JJ.]
Constitution of India – Art. 32 – Habeas Corpus Petition –
For custody of minor children – Maintainability – Petitioner had
married respondent no.6 and they have two minor children –
Disputes between petitioner and respondent no.6 – Habeas Corpus
Petition filed u/Art.32 by petitioner, a citizen of Spain, for custody
of the two minor children who were living with respondent no.6 in
India – Preliminary objection raised by respondent no.6 with regard
to maintainability of the Habeas Corpus petition, particularly when
a petition filed by the petitioner under the Guardians and Wards
Act for custody of the children was pending before the trial court –
Held: In the present case, the admitted facts being that respondent
no.6 (mother) had the custody of the two minor children, for which
the petitioner (father) had already filed a petition u/s.12 of the
Guardians and Wards Act, which is pending consideration; and the
custody of the children with the mother, who is a natural guardian,
cannot be said to be illegal and, thus, the petition for habeas corpus
would not be maintainable and that too directly u/Art.32 of the
Constitution – The statutory remedy available under the Guardians
and Wards Act is the appropriate remedy, which has already been
availed by the petitioner – There are no extra ordinary or exceptional
circumstances in the present case requiring the Supreme Court to
exercise its jurisdiction u/Art. 32 of the Constitution – The remedy
already availed by the petitioner is an appropriate and effective
remedy, where all the questions raised herein regarding the welfare
and well-being of the children can be considered in accordance
with law – Guardians and Wards Act, 1890 – s.12 – Family Law –
Child custody.
Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67 :
[2020] 1 SCR 417 – distinguished.
A
B
C
D
E
F
G
H
768
SUPREME COURT REPORTS
[2021] 6 S.C.R.
Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
(2019) 7 SCC 42 :  [2019] 7 SCR 335 and Soumitra
Kumar Nahar v. Parul Nahar (2020) 7 SCC 599 –
referred to.
Case Law Reference
(2020) 7 SCC 599
referred to
Para 6
[2020] 1 SCR 417  
distinguished
Para 6
[2019] 7 SCR 335
referred to
Para 7
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 318 of 2020
(Under Article 32 of the Constitution of India)
P. S. Narasimha, Sr. Adv. (AC)
Petitioner-in-person.
Sidharth Luthra, Sr. Adv., Soumitra G. Chaudhuri, Ms. Puja Kumari
Shaw, Chanchal Kumar Ganguli, Kumar Mihir, Advs. for the
Respondents.
The following Order of the Court was passed :
ORDER
1. This Habeas Corpus Petition has been filed under Article 32 of
the Constitution of India by the petitioner (father) for the custody of his
two minor children.
2. The brief facts of the case are that the petitioner had married
the respondent No. 6 and they have a son aged about 15 years and a
daughter aged about 10 years. The petitioner is a citizen of Spain. There
being some disputes between the petitioner (husband) and respondent
No. 6/wife, the respondent No. 6/wife left the petitioner along with the
two minor children. The petitioner thereafter filed a case under Section
12 of the Guardians and Wards Act, 1890 (hereinafter referred to as
“the Act”) for the custody of two minor children, before the 10th Additional
District Judge, Alipore, Kolkata, which is numbered as Case No. 88 of
2017. The said case for custody is still pending before the said Court.
Further a case under the Protection of Women from Domestic Violence
Act,2005 has also been filed by respondent No. 6/wife against the
petitioner, which is also pending. In the said case, some maintenance
A
B
C
D
E
F
G
H
769
amount was granted in favour of respondent No. 6/wife, which was
challenged before the High Court and the same has been reduced. The
same is not an issue in this petition.
3. In the background of the aforesaid facts and circumstances,
the petitioner has filed this writ petition with the following prayers:
“(i) Issue an appropriate writ/order/direction in the nature of Habeas
Corpus to issue directing and commanding the Respondent Nos.2,
3, 4 and 5 to produce Siddhartha Aupa Zalba Mahapatra and
Ikantika Margarita Zalba Mahapatra before this Hon’ble Court
ensuring protection of their rights and their best interest from the
custody o
Excerpt shown. Read the full judgment & AI analysis in Lexace.