Jose Antonio Zalba Diez Del Corral Alias Jose Antonio Zalba vs The State of West Bengal & Ors.

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION(S)(CRIMINAL) NO(S). 318/2020

JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO ZALBA PETITIONER(S)

VERSUS

THE STATE OF WEST BENGAL & ORS. RESPONDENT(S)

O R D E R

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.

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 Signature Not Verified

two Digitally signed by MEENAKSHI KOHLI Date: 2021.08.25 minor children, before the 10th Additional District Judge, 16:42:58 IST Reason:

Alipore, Kolkata, which is numbered as Case No. 88 of 2017. The

said case for custody is still pending before the said Court.

2 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 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.

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 of the respondent no.6.

(ii) Issue an appropriate writ/order/direction in the nature of Mandamus directing the

Respondents No.2, 3, 4 and 5 to hand over the custody of the said Siddhartha Aupa Zalba Mahapatra and Ikantika Margarita Zalba Mahapatra subject to the outcome of Act VIII Case No.88 of 2017 pending before the Learned 10th Additional District Judge, Alipore for ensuring proper protection of their rights by shifting the children from Kolkata, India to Spain, the safest option available to the children;

(iii) Issue an appropriate writ/order/direction in the nature of Certiorari directing the respondents to produce the records of the case in connection with Act VIII Case No.88 of 2017 presently pending before the Learned 10th Additional District Judge, Alipore before this Hon’ble Court so that conscionable justice may be administered after scrutinizing the same.

(iv) Interim order directing the Respondents concerned and to render police assistance for protecting the life and property of the children of the petitioner and the respondent no.6, namely, Siddhartha Aupa Zalba Mahapatra and Ikantika 3

Margarita Zalba Mahapatra.

(v) Interim order directing the children to be taken from Kolkata, India to Spain and live under the care and protection of their paternal family including the petitioner and be housed at their paternal family home in Spain.”

We have heard the petitioner, who has appeared in-person, as

well as Mr. Sidharth Luthra, learned senior counsel appearing on

behalf of respondents no. 1 to 5 along with Mr. Chanchal Kumar

Ganguli and Mr. Anuj Prakash, learned counsel for respondent no.

6 /wife and perused the record. We have also heard Mr. P.S.

Narasimha, learned senior counsel who was appointed as Amicus

Curiae to assist the court.

The fact that the petition for custody of the children under

Section 12 of the Act is pending, has not been disputed. The

pendency of the said case would also be clear from the perusal of

the prayers made in this petition, which have been extracted above.

A preliminary objection has been raised by Shri Anuj Prakash,

learned counsel for the Respondent no.6 with regard to the

maintainability of this petition, particularly when the petition

filed by the petitioner under the Guardians and Wards Act for

custody of the children is pending before the Trial Court.

The petitioner has submitted that this petition has been filed

to ensure the safety of, and in the best interest of the minor

children. It is contended that respondent No. 6/wife along with two

minor children is staying in Kolkata, which is a red zone for

COVID-19, whereas the petitioner being a resident of Spain can take 4

the children to Spain, which is a much safer place and has better

medical facilities. It is also contended that at present the

petitioner is staying in Shantiniketan, which is a green zone for

COVID-19 and, thus, the children would be safer with the petitioner

in Shantineketan. It is also submitted that the children have been

illegally taken away by respondent No. 6/wife and the petitioner is

wrongly deprived of their custody. The petitioner has submitted

that the children have the right to live with their father, as both

the parents have right for the custody of their children. In

support thereof, he relied upon the decisions of this Court in

“Soumitra Kumar Nahar Vs. Parul Nahar” (2020) 7 SCC 599 and

“Yashita Sahu Vs. State of Rajasthan” (2020) 3 SCC 67. It is

further contended by the petitioner that though the petition for

custody of the children under the Guardians and Wards Act is

pending before the Trial Court but in the given circumstances, the

respondent no. 6/wife be directed by this Court to handover the

custody of the children to the petitioner.

Per contra, Mr. Sidharth Luthra, learned senior counsel

appearing for the State/respondents has submitted that in view of

the fact that the petition for custody of the children is pending

before the Trial Court, this writ petition under Article 32 of the

Constitution of India would not be maintainable. In support

thereof, he placed reliance upon the two decisions of this Court in

“Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari” (2019) 7

SCC 42 and “Yashita Sahu Vs. Sate of Rajasthan” (2020) 3

SCC 67. It is further contended that in the counter affidavit 5

filed by the State, it has categorically been stated that the

position of pandemic in the State of West Bengal is well under

control and it cannot be said that the children will not be safe

with the mother in Kolkata.

Mr. P.S. Narasimha, learned Amicus has very fairly placed the

position of law relating to the present matter.

Mr. Anuj Prakash, learned counsel for respondent No. 6/wife

has supported the submissions of Mr. Luthra with regard to the non-

maintainability of this Habeas Corpus Petition, especially when the

custody of the children is with the mother, who is a natural

guardian. It is contended that the maintenance amount awarded by

the Trial Court under the provisions of the Protection of Women

from Domestic Violence Act,2005 has not been paid by the petitioner

to respondent No. 6/wife which would, according to the learned

counsel, clearly demonstrate that the petitioner has no concern for

the wellbeing of respondent No. 6/wife or the children. It is

lastly contended that in case the petitioner is given custody of

the children and he takes the children to Spain, they would be

outside the territorial jurisdiction of the Trial Court, where the

petition for custody of the children under the provisions of the

Act is pending. With regard to the safety of the children, it has

been contended that respondent No.6/wife, along with children are

staying in Kolkata, and since March 2020, two waves of pandemic

(COVID-19) have already passed, and respondent no. 6/wife as well

as two minor children are completely safe.

Having heard the petitioner as well as the learned counsel for

the parties and on perusal of the record, before going into the 6

merits of the claim of the petitioner, the preliminary question to

be decided by this Court would be with regard to the

maintainability of this petition.

It cannot be disputed that both the parents may have a right

for custody of their children but the said question of custody is

to be considered and decided after evidence is adduced by the

parties, and after following the due procedure, which would be

under the provisions of the Guardians and Wards Act; and the

petitioner has already filed a petition under the said Act, which

matter is pending consideration before the Trial Court in Kolkata.

The decision in Yashita Sahu (supra) is distinguishable on

facts. The said case related to a matter in which both the parents,

along with the children, were residing in United States and since

there were disputes between the husband and wife, and the wife had

taken away the children and started living separately, the father

filed a petition for custody of the children before the court in

the United States, which directed the wife to produce the children

and instead the wife took the children from United States to India.

It was in such circumstances that in a Habeas Corpus Petition

before the Rajasthan High Court, the High Court directed the wife

to return to the United States along with the minor daughter within

six weeks to enable the territorial jurisdictional court in United

States to pass further orders in the proceedings already pending

there. It was in the aforesaid facts that the writ petition for

Habeas Corpus was held to be maintainable. This Court in the case

of Tejaswini Gaud (supra) has categorically laid down the law 7

with regard to the maintainability of Habeas Corpus Petition in

Paragraphs No. 19 & 20, which are extracted below:

“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 the 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 of 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.” Emphasis supplied 8

In the present case, the admitted facts being that the mother

has the custody of two minor children, for which the

petitioner(father) has already filed a petition under Section 12 of

the 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 under Article 32 of the

Constitution of India. While saying so, we are not going into the

question whether the maintenance amount directed by the Trial Court

in the proceedings under the Protection of Women from Domestic

Violence Act,2005 has been paid or not. 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 this Court to exercise its jurisdiction under Article 32

of the Constitution of India. The remedy already availed by the

petitioner is an appropriate and effective remedy, where all the

questions raised herein regarding the welfare and wellbeing of the

children can be considered in accordance with law, after

appreciation of the evidence, which may be led by the parties.

Accordingly, we dismiss this writ petition on the ground of

maintainability. However, we request the 10th Additional District

Judge, Alipore, Kolkata to hear and decide the pending case No. 88

of 2017 as expeditiously as possible, and in accordance with law,

preferably within six months from the filing of a certified copy of 9

this order, along with an application for expeditious disposal of

the pending case.

Before parting, we express our gratitude for the able

assistance rendered by Mr. P.S. Narsimha learned senior counsel,

who was appointed as Amicus Curiae by this Court.

...................J. (VINEET SARAN)

...................J. (DINESH MAHESHWARI)

New Delhi;

July 28, 2021 10

ITEM NO.3 Court 11 (Video Conferencing) SECTION X

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal) No(s). 318/2020

JOSE ANTONIO ZALBA DIEZ DEL CORRAL ALIAS JOSE ANTONIO ZALBA Petitioner(s)

VERSUS

THE STATE OF WEST BENGAL & ORS. Respondent(s)

(FOR ADMISSION and IA No.105558/2020-PERMISSION TO APPEAR AND ARGUE IN PERSON Mr. P.S. NARASIMHA, LEARNED SENIOR COUNSEL IS APPOINTED AS AMICUS CURIAE TO ASSIST THE COURT.

IA No. 59762/2021 - APPROPRIATE ORDERS/DIRECTIONS IA No. 59764/2021 - EXEMPTION FROM FILING AFFIDAVIT)

Date : 28-07-2021 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE VINEET SARAN HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. P.S. Narasimha, Sr. Adv. (AC) For Petitioner(s) Petitioner-in-person

For Respondent(s) Mr. Sidharth Luthra, SR. Adv.

Mr. Soumitra G. Chaudhuri, Adv.

Ms. Puja Kumari Shaw, Adv.

Mr. Chanchal Kumar Ganguli, AOR

Mr. Kumar Mihir, AOR

UPON hearing the counsel the Court made the following O R D E R

The writ petition is dismissed in terms of the signed

reportable order.

Pending application(s), if any, stands disposed of

accordingly.

(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR) (COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS (Signed reportable order is placed on the file)