Writ Petition No. 203 of 2024 · High Court
Case Details
2. Shri Alok Kumar Mishra, learned counsel for the petitioner submits that the deponent had filed a transfer Petition (S) (Civil) No.2817 of 2024 before the Hon'ble Supreme Court, which came up for hearing on 27.03.2025 and the Hon'ble Supreme Court referred the matter for Mediation on the statement of learned counsels at Bar. He further submits that in deference to the same the matter was listed before the Mediation Center of Hon'ble Supreme court twice, but the respondent no.4/Gautam Ashok Sharma son of Ashok Kumar Sharma has not appeared on both the dates, whereas the deponent and her counsel appeared through Video Conferencing. Now the matter is listed before the Mediation Center on 2nd of May, 2025 and there is no hope of his attending the Mediation Center as he is playing with the courts so that he may not have to produce the detenue/child before this court.
3. He further submits that on 26.03.2025 the respondent no.4 was present before this court. He had stated that the detenue/child is at Pune, therefore, he cannot produce him, whereas the mother of the respondent no.4 lodged an FIR on 27.03.2025 regarding missing of the respondent no.4 and the detenue/child w.e.f. 26.03.2025, therefore, it is also apparent that the parents of respondent no.4 are also in collusion with the respondent no.4 and to avoid to produce the detenue/child, a false missing report has been lodged, therefore, he prays for strict action against the respondent no.4.
4. Shri Puneet Chandra, learned counsel for the respondent no.4 submits that he has no instructions in the matter and the respondent no.4 has not contacted him since 26.03.2025 after the court had passed the order on the said date for production of the detenue/child on 27.03.2025. However the father of the respondent no.4 had called on his mobile on 14.04.2025 from Mobile No.8756447843 at about 9.14 p.m., which was picked by his colleague Shri Saurabh Yadav, Advocate and he asked him to look after this case on behalf of respondent no.4, but he had declined to do so stating that if the whereabouts of the respondent no.4 and the detenue are not known he cannot appear and assist the court.
5. Shri Puneet Chandra, learned counsel for the respondent no.4 states that he has only appeared to inform the aforesaid facts, otherwise since he is not in the contact of respondent no.4 and he has also not contacted him, therefore, he is not appearing on his behalf and appearing only to assist the court.
6. In view of above, it is apparent that the respondent no.4 is deliberately neither appearing before this court nor producing the detenue/child.
7. It is also noticed that the respondent no.4 had earlier taken various grounds for not producing the detenue/child. This court on 06.01.2025 found authenticity of the medical certificate doubtful, which was produced on account of absence of the detenue on the ground that he met with an accident. However the date was fixed on 17.01.2025. On 17.01.2025 again the respondent no.4 had not produced the detenue on the ground that on account of illness, but the ground taken of illness by eating ice cream was not mentioned in the affidavit. However, this court fixed the date on 27.01.2025 for production of the detenue/child. But even then the detenue was not produced and the respondent no.4 preferred Special Appeal Defective No.55 of 2025. The Special Appeal was dismissed by means of order dated 10.02.2025 on the undertaking of the respondent no.4 that he will produce the detenue/child before the writ court on 28.02.2025. On 28.02.2025 also the detenue was not produced and it was informed that another Special Appeal bearing No.58 of 2025 filed by the respondent no.4 was also dismissed on 10.02.2025. On 28.02.2025 an exemption application was moved without any affidavit on account of non availability of reservation. Then the date was fixed on 25.03.2025 for production of the detenue.
8. On 25.03.2025 again the respondent no.4 appeared but he did not produce the detenue. He moved two applications; one application for exemption from appearance of detenue and another for disposal of the petition on the ground that he is ready to take the deponent with him to live with her and the child. However the deponent stated that unless the detenue is produced she is not ready to go with the respondent no.4, otherwise she has no objection as when he is not complying the orders passed by this court and undertakings given by him he may do any thing to harass her. She has already stated before this court on earlier occasions that on account of trivial family disputes she is residing separately and she is ready to live with the husband.
9. This court also looking to the conduct of the respondent no.4, in which he is violating not only the orders passed by this court, but also undertakings given by him for production of child before this court and on the undertaking of respondent no.4 passed order on 25.03.2025 that he will produce the child on the next date on 26.03.2025 and allowed the exemption application at a cost of Rs.5,000/- and the case was fixed on 26.03.2025. On 26.03.2025 the respondent no.4 had not appeared and also not produced detenue/child.
10. Learned counsel for the respondent no.4 had informed on the said date that after the order was passed on 25.03.2025 he had not contacted him and despite subsequently repeated calls made by the counsel also he had not picked up the phone and switched off the phone. Even thereafter in spite of the observations of this court in order dated 28.03.2025 that in case the detenue is not produced in terms of the earlier orders as well as the undertakings given by him non-bailable warrant would be issued against the respondent no.4, this court taking a lenient view and statement of the respondent no.4 and application moved by him and also the statement of the deponent to settle the dispute amicably had issued only bailable warrant on 26.03.2025 on both the addresses i.e. on Ayodhya and Pune. The Chief Judicial Magistrate, Ayodhya vide report dated 15.04.2025 had informed that the bailable warrant could not be executed as respondent no.4 is residing in Pune. The report of Pune was not received by that date on 16.04.2025, therefore, the date was fixed for today calling the report from the Chief Judicial Magistrate, Pune, Maharashtra. Today the aforesaid report sent by the Chief Judicial Magistrate, Pune has been received.
11. In view of above and considering the over all facts and circumstances of the case it is apparent that the respondent no.4 is deliberately avoiding the production of detenue/child before this court and neither complying the orders passed by this court nor the undertakings given by him and playing with the court and neither appearing nor producing the alleged detenue/child and allowing him to meet the mother, whereas the child is of about 2 years and 8 months old and the custody of such a minor child should have been with the mother.
12. From the aforesaid facts it also appears that the parents of the respondent no.4 are also helping him to avoid the production of child, the mother of the respondent no.4 has lodged a report of missing on 27.03.2025 w.e.f. 26.03.2025, whereas as per statement of respondent no.4 on 25.03.2025, the detenue was at Pune and they had not appeared on 26.03.2025 and on consent of learned counsel for the parties on 27.03.2025 before Hon'ble Supreme Court the matter was referred to Mediation but he did not appear as informed by learned counsel for the petitioner and his father would not have contacted the counsel of respondent no.4 for pursuing this case, if it was so. Thus this court has no option except to issue non-bailable warrant against the respondent no.4 with a direction to the Chief Judicial Magistrates concerned to get executed the same and if required the higher Police authorities may be asked to take appropriate steps for execution of the non-bailable warrant because now it is not a mere case of unlawful custody of the detenue/child but a serious threat also appears to the detenue because he appears to have decided not to produce the detenue/child and allow the detenue/child to meet his mother in any condition. In case the non-bailable warrant would not be executed, this court will also have no other option except to issue a direction for proceedings under Section 84 and 85 of Bhartiya Nagrik Suraksha Sanhita, 2023.
13. Let non-bailable warrants be issued against the respondent no.4 not only at his address of Pune through Chief Judicial Magistrate, Pune, Maharasthra, but also at his address at Ayodhya through Chief Judicial Magistrate, Ayodhya/Faizabad, where his parental house is situated.
14. List on 21st of May, 2025. . .................. .......................................(Rajnish Kumar,J.) Order Date :- 1.5.2025 Banswar
2. Shri Alok Kumar Mishra, learned counsel for the petitioner submits that the deponent had filed a transfer Petition (S) (Civil) No.2817 of 2024 before the Hon'ble Supreme Court, which came up for hearing on 27.03.2025 and the Hon'ble Supreme Court referred the matter for Mediation on the statement of learned counsels at Bar. He further submits that in deference to the same the matter was listed before the Mediation Center of Hon'ble Supreme court twice, but the respondent no.4/Gautam Ashok Sharma son of Ashok Kumar Sharma has not appeared on both the dates, whereas the deponent and her counsel appeared through Video Conferencing. Now the matter is listed before the Mediation Center on 2nd of May, 2025 and there is no hope of his attending the Mediation Center as he is playing with the courts so that he may not have to produce the detenue/child before this court.
3. He further submits that on 26.03.2025 the respondent no.4 was present before this court. He had stated that the detenue/child is at Pune, therefore, he cannot produce him, whereas the mother of the respondent no.4 lodged an FIR on 27.03.2025 regarding missing of the respondent no.4 and the detenue/child w.e.f. 26.03.2025, therefore, it is also apparent that the parents of respondent no.4 are also in collusion with the respondent no.4 and to avoid to produce the detenue/child, a false missing report has been lodged, therefore, he prays for strict action against the respondent no.4.
4. Shri Puneet Chandra, learned counsel for the respondent no.4 submits that he has no instructions in the matter and the respondent no.4 has not contacted him since 26.03.2025 after the court had passed the order on the said date for production of the detenue/child on 27.03.2025. However the father of the respondent no.4 had called on his mobile on 14.04.2025 from Mobile No.8756447843 at about 9.14 p.m., which was picked by his colleague Shri Saurabh Yadav, Advocate and he asked him to look after this case on behalf of respondent no.4, but he had declined to do so stating that if the whereabouts of the respondent no.4 and the detenue are not known he cannot appear and assist the court.
5. Shri Puneet Chandra, learned counsel for the respondent no.4 states that he has only appeared to inform the aforesaid facts, otherwise since he is not in the contact of respondent no.4 and he has also not contacted him, therefore, he is not appearing on his behalf and appearing only to assist the court.
6. In view of above, it is apparent that the respondent no.4 is deliberately neither appearing before this court nor producing the detenue/child.
7. It is also noticed that the respondent no.4 had earlier taken various grounds for not producing the detenue/child. This court on 06.01.2025 found authenticity of the medical certificate doubtful, which was produced on account of absence of the detenue on the ground that he met with an accident. However the date was fixed on 17.01.2025. On 17.01.2025 again the respondent no.4 had not produced the detenue on the ground that on account of illness, but the ground taken of illness by eating ice cream was not mentioned in the affidavit. However, this court fixed the date on 27.01.2025 for production of the detenue/child. But even then the detenue was not produced and the respondent no.4 preferred Special Appeal Defective No.55 of 2025. The Special Appeal was dismissed by means of order dated 10.02.2025 on the undertaking of the respondent no.4 that he will produce the detenue/child before the writ court on 28.02.2025. On 28.02.2025 also the detenue was not produced and it was informed that another Special Appeal bearing No.58 of 2025 filed by the respondent no.4 was also dismissed on 10.02.2025. On 28.02.2025 an exemption application was moved without any affidavit on account of non availability of reservation. Then the date was fixed on 25.03.2025 for production of the detenue.
8. On 25.03.2025 again the respondent no.4 appeared but he did not produce the detenue. He moved two applications; one application for exemption from appearance of detenue and another for disposal of the petition on the ground that he is ready to take the deponent with him to live with her and the child. However the deponent stated that unless the detenue is produced she is not ready to go with the respondent no.4, otherwise she has no objection as when he is not complying the orders passed by this court and undertakings given by him he may do any thing to harass her. She has already stated before this court on earlier occasions that on account of trivial family disputes she is residing separately and she is ready to live with the husband.
9. This court also looking to the conduct of the respondent no.4, in which he is violating not only the orders passed by this court, but also undertakings given by him for production of child before this court and on the undertaking of respondent no.4 passed order on 25.03.2025 that he will produce the child on the next date on 26.03.2025 and allowed the exemption application at a cost of Rs.5,000/- and the case was fixed on 26.03.2025. On 26.03.2025 the respondent no.4 had not appeared and also not produced detenue/child.
10. Learned counsel for the respondent no.4 had informed on the said date that after the order was passed on 25.03.2025 he had not contacted him and despite subsequently repeated calls made by the counsel also he had not picked up the phone and switched off the phone. Even thereafter in spite of the observations of this court in order dated 28.03.2025 that in case the detenue is not produced in terms of the earlier orders as well as the undertakings given by him non-bailable warrant would be issued against the respondent no.4, this court taking a lenient view and statement of the respondent no.4 and application moved by him and also the statement of the deponent to settle the dispute amicably had issued only bailable warrant on 26.03.2025 on both the addresses i.e. on Ayodhya and Pune. The Chief Judicial Magistrate, Ayodhya vide report dated 15.04.2025 had informed that the bailable warrant could not be executed as respondent no.4 is residing in Pune. The report of Pune was not received by that date on 16.04.2025, therefore, the date was fixed for today calling the report from the Chief Judicial Magistrate, Pune, Maharashtra. Today the aforesaid report sent by the Chief Judicial Magistrate, Pune has been received.
11. In view of above and considering the over all facts and circumstances of the case it is apparent that the respondent no.4 is deliberately avoiding the production of detenue/child before this court and neither complying the orders passed by this court nor the undertakings given by him and playing with the court and neither appearing nor producing the alleged detenue/child and allowing him to meet the mother, whereas the child is of about 2 years and 8 months old and the custody of such a minor child should have been with the mother.
12. From the aforesaid facts it also appears that the parents of the respondent no.4 are also helping him to avoid the production of child, the mother of the respondent no.4 has lodged a report of missing on 27.03.2025 w.e.f. 26.03.2025, whereas as per statement of respondent no.4 on 25.03.2025, the detenue was at Pune and they had not appeared on 26.03.2025 and on consent of learned counsel for the parties on 27.03.2025 before Hon'ble Supreme Court the matter was referred to Mediation but he did not appear as informed by learned counsel for the petitioner and his father would not have contacted the counsel of respondent no.4 for pursuing this case, if it was so. Thus this court has no option except to issue non-bailable warrant against the respondent no.4 with a direction to the Chief Judicial Magistrates concerned to get executed the same and if required the higher Police authorities may be asked to take appropriate steps for execution of the non-bailable warrant because now it is not a mere case of unlawful custody of the detenue/child but a serious threat also appears to the detenue because he appears to have decided not to produce the detenue/child and allow the detenue/child to meet his mother in any condition. In case the non-bailable warrant would not be executed, this court will also have no other option except to issue a direction for proceedings under Section 84 and 85 of Bhartiya Nagrik Suraksha Sanhita, 2023.
13. Let non-bailable warrants be issued against the respondent no.4 not only at his address of Pune through Chief Judicial Magistrate, Pune, Maharasthra, but also at his address at Ayodhya through Chief Judicial Magistrate, Ayodhya/Faizabad, where his parental house is situated.
14. List on 21st of May, 2025. . .................. .......................................(Rajnish Kumar,J.) Order Date :- 1.5.2025 Banswar