RASHMI AJAY KR. KESHARWANI & ANR. versus AJAY KR. KESHARWANI AND ORS.

Citation: [2012] 4 S.C.R. 1153 · Decided: 12-03-2012 · Supreme Court of India · Bench: G.S. SINGHVI, S. J. MUKHOPADHAYA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2012] 4 S.C.R. 1153 
RASHMI AJAY KR. KESHARWANI & ANR. 
v. 
AJAY KR. KESHARWANI AND ORS. 
(Criminal Appeal No. 518 of 2012) 
MARCH 12, 2012 
[G.S. SINGHVI AND SUDHANSU JYOTI 
MUKHOPADHAYA, JJ.] 
A 
B 
Constitution of India, 1950 - Article 226 - Writ of Habeas 
Corpus - Maintainability ~ Matrimonial dispute between wife C 
and husband - Both of them living separately - The son born 
out of the wedlock living with the mother - In one petition filed 
by the husband before the High Court address of the wife 
shown to be of Maharashtra - Husband also filing writ of 
Habeas Corpus, for producing the child before the Court D 
wherein address of the wife was shown to be of Uttar Pradesh 
- High Court issued non-bailable warrant against the wife - On 
appeal, held: No case was made out to entertain a writ of 
Habeaus Corpus - The case was filed by the husband with 
wrong address to mislead the High Court - The allegation by E 
the husband that the son has been illegally detained by his 
mother is wrong as the son has been residing with his mother 
since his birth - A writ of Habeas Corpus is not to be issued 
in the matter of course, specially when the writ is sought 
against a parent for the custody of a child - Writs. 
Capt. Dushyant Soma/ vs. Smt. Sushma Soma/ and Ors. 
(1981) 2 sec 277 - relied on. 
Case Law Reference: 
c1ss1) 2 sec 211 
Relied on 
Para 16 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 518 of 2012. 
1153 
F 
G 
H 
1154 
SUPREME COURT REPORTS 
[2012] 4 S.C.R. 
A 
From the Judgment and Order dated 09.11.2011 of the 
High Court of Judicature at Allahabad in Habeas Corpus Writ 
Petition No. 36326 of 2011. 
Shomila Bakshi for the Appellant. 
B 
R.K. Gupta, Suraj Singh, Pradeep Misra for the 
c 
Respondent. 
The Order of the Court was delivered 
ORDER 
1. Leave granted. 
2. 1st appellant-Rashmi is the wife and 2nd appellant- Aryan 
is the son of the 1st respondent-Ajay Kumar. The 1st appellant 
o and the 1st 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. 
In the present case the appellants have challenged the 
order dated 9th November, 2011 passed by the Allahabad High 
E Court in the Habeas Corpus Writ Petition No.36326 of 2011, 
whereby the High Court issued a non-bailable warrant against 
the 1st appellant to ensure her presence and the production of 
the 2nd appellant. 
F 
3. According to the 1st appellant, since her marriage, she 
was constantly subjected to mental and physical torture by the 
1st 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 
G house by the 1st 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 1st appellant-Rashmi along with her son 
took shelter at her parent's home at Biwandi, District Thane, 
Maharashtra. 
H 
RASHMI AJAY KR. KESHARWANI & ANR. v. AJAY 1155 
KR. KESHARWANI AND ORS. 
4. The 1st respondent-Ajay Kumar filed a petition under 
A 
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 
B 
of judicial separation between the parties. 
5. The 1st 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. 
C 
6. The 1st 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 
D 
Marriage Act, the Civil Court allowed a maintenance of 
Rs.5,000/- each in favour of the 1st 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, 2011 directed 
E 
the 1st respondent-husband to pay arrears of Rs.4,90,000/-
towards maintenance. According to the 1st appellant-wife, the 
1st respondent-husband has not yet paid any amount towards 
maintenance and is i
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