2 Nov 2022 4:00 AM GMT
The Madhya Pradesh High Court, Indore Bench recently held that it cannot issue a writ of habeas corpus against an individual residing outside the territory of India. The bench comprising Justices Vivek Rusia and A.N. Kesharwani noted that the petition was liable to be dismissed since the Petitioner was praying for something that was outside the scope of its power under Article 226 of...
The Madhya Pradesh High Court, Indore Bench recently held that it cannot issue a writ of habeas corpus against an individual residing outside the territory of India.
The bench comprising Justices Vivek Rusia and A.N. Kesharwani noted that the petition was liable to be dismissed since the Petitioner was praying for something that was outside the scope of its power under Article 226 of the Constitution of India-
It is clear from the aforesaid, the High Court shall have the power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including any government within whose territories directions, order or writs for the enforcement of any of the rights conferred by Part III and for any other purpose. Therefore, the high Court can issue a writ under Article 226 of the Constitution of India to any person within its territory, thus, this writ petition is not maintainable and liable to be dismissed on this ground alone.
Facts of the case were that the Petitioner was earlier residing in the Netherlands with her husband and daughter. Due to matrimonial discord, she could no longer live with her husband. She filed a complaint against him before the authorities in Netherlands pursuant to which the husband was directed to stay away from the Petitioner and the child.
Having no source of income, the Petitioner thought of moving back to India with the daughter. However, owing to the laws in Netherlands, she couldn't take the daughter with her without seeking the permission of her husband. Left with no other option, she came back to India leaving her daughter behind. In order to get the custody of her child, the Petitioner moved the Court by filing a writ in the nature of habeas corpus.
Examining the issue in hand, the Court observed that it was outside its jurisdiction under Article 226 to issue a writ of habeas corpus against the husband since he was residing in Netherlands. Furthermore, the Court noted that since he was also the biological father of the child, the custody could not be said to be illegal for issuance of writ in the nature of habeas corpus.
Further, the Court rejected the request of the Petitioner to implead the parents of the Respondent/Husband as they were not the necessary party in the lis-
At this stage, counsel for the petitioner submits that that he may be permitted to file appropriate application for impleading the parents of the respondent No.5 who are residing at Khargone. They are not necessary party in this petition as corpus is not their custody. Merely they are parents of the respondent No.5, they cannot be dragged into litigation. The petitioner may avail the remedy provided under Law.
With the aforesaid observations, the petition was dismissed.
Case Title: PREETI KAUSHALAY versus THE UNION OF INDIA AND ORS.
Case citation: 2022 LiveLaw (MP) 243
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