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Criminal · Reportable judgment

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

Court
Supreme Court of India
Date
28 July 2021
Case No.
Writ Petition (Criminal) No. 318 of 2020
Result
Dismissed
Bench
Vineet Saran, Dinesh Maheshwari
Citation
[2021] 6 S.C.R. 767 : 2021 INSC 367
Supreme Court Reports [2021] 6 S.C.R. 767 : 2021 INSC 367
Headnote

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.

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.

As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.

Full Judgment Text

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
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