IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT PETITION (CRL) NO.1585 OF 2022

INTHE MATTER OF:-

PO0JA ...PETITIONER
VS
STATE AND ORS ..RESPONDENTS

NDOH: 30.08.2022

INDEX
S.NO PARTICULARS PAGE NO.
1. Counter Affidavit on behalf of 2-16

Respondent no. 5

Proof of Service

3. Vakalatnama already on record

DELHI
DATED 29.08.2022

THROUGH

coUNSEL FOR THE RESPONDENd

(R.K. TARUN & ASSOCIAVES)
ADVOCATES
Office at: P-60, NDSE-II, New Delhi-110049 (India).
#9811225854. E-mail: rajeshkumartarun@gmail.com
 DELHI
IN THE HIGH COURT OF DELHI AT NEW
2022
WRIT PETITION (CRL) NO.1585 OF
INTHEMATTER OF: ..PETITIONER
POOJA
VS
.RESPONDENTS
STATE AND ORS

COUNTER AFFIDAVIT ON BEHALF OF THE

RESPONDENT NO.5/VIKRAM LAL.

MOST RESPECTFULLY SHOWETH:

1, Vikram Lal, S/o Sh. Bajrang Lal, R/o H. No. C-49, Khajaan
Basti, Nangal Raya, P S Mayapuri, Delhi- 110041, aged about
affirm and state on oath as
32 years, do hereby solemnly
hereunder
1. That l am the Respondent No. 5 in the above mentioned

Writ Petition and I am aware of the facts of the case and

hence competent to depose this Affidavit.

2 ThatI have read the contents of this Counter Affidavit and

V say that averments made in this affidavit are true to my

knowledge and record and nothing has been concealed by

me.
Writ Petition incorrect and
of the are

CoyT 3.That the contents

denied except what is admitted and what is matter of

record.
 4. That the contents of the synopsis and list of dates are

incorrect and denied except what is admitted.

5. That the answering deponent has gone through the

contents of Writ Petition and the Annexures filed with the

Petition and has understood the contents thereof. The

deponent has also perused the records pertaining to the

case, and is filing this Affidavit in reply on the basis of
record. That the pleas raised in the Writ Petition and
averments made therein are denied except what is
specifically admitted.

PRELIMNARYOBIECTIONS::
1. That the present Petition is not maintainable in its present

form as in a Petition seeking a Writ of Habeas Corpus, in a

matter relating to a claim for Custody of a Child, the
Principle issue to be taken into consideration is whether
the qustody of the child is illega, and in the present case

the quotody of the child is with his Biological Father, which

ca peyer be said to be illegal, and thus the present
Petition is misconceived and thus liable to be dismissed.
SOV 2.0Thát the present Petition is not maintainable in its present
form as the Writ of Habeas Corpus is an effective method
 of
to ensure release of a Detained person and production

the detained individual before the Court, and in the present

case the Child is only in the lawful custody of his biological

as misconceived
father, which renders the present Petition

and thus liable to be dismissed.

3. That the present Petition is not maintainable in its present

form as it is settled law that a Habeas Corpus Petition can

be availed as a remedy only when the statutory remedy

is either unavailable or
provided by the legislature
is bereft of any
ineffective, whereas the present Petition

such averment whatsoever, rendering the present Petition

as misconceived and thus liable to be dismissed.

Court
4. That it is no longer Res Integra that the Hon'ble High
Writ of Habeas Corpus in child
while adjudicating a

matters acts as "Parens Patriae" and takes into

custody
consideration what would serve the best welfare and

the first aspect to

interest of the child, and while doing so,

and considered the Court is Who are his parents

by
be seen

their duty? It is pertinent to

and have they
been doing
mention here that it is
the Respondent No.5 and 6 who

care of the minor child, since his birth.

have been taking
law that "While considering the Welfare of
5. That it is settled
of upbringing of the child since infancy is
thechild, the fact
 reflects the
an important factor as the said aspect

emotional bonding of the child with the person who has

taken proper care and attention in upbringing the child,

which is an imperative factor in determining the Welfare of
the Child. In the present matter, the minor child "Parth"
has been taken of by his Father as
since his infancy care

well as his paternal grandparents, due to which the minor

child has developed an intimate emotional bond with his

father and paternal Grandparents.

6. That the present Petition is not maintainable as it has been

preferred with a malafide intention of avoiding the

and Wards Act as well
statutory mandate of the Guardian
as the Family Courts Act, which mandates that matters

pertaining to custody of minor children, between warring

matrimonial couples must be adjudicated by concerned

Family Courts.
maintainable as the
7. That the present Petition is not
this Hon'ble Court with
Petitioner has not approached
of
clean hands by concealing the factum of abandonment
the
the minor child by the Petitioner herself, which renders
Petition as an abuse of process of law and thus
presént
A lableto be dismissed.
 8. That it is settled law that the paramount interest in cases of

custody of a minor child is the "Welfare of the child" and

the contents of the present Petition as well as the conduct
of the present Petitioner goes to show that the welfare of
the minor child lies with the Answering
Respondent/Father who has been taking care of the minor

child ever since his birth and abandonment by the present

Petitioner, as per her own showing in the Petition of the
Petitioner that she did not raise any hue and cry for long
and all of a sudden approaches this Hon'ble Court vide the

present Petition, rendering the present Petition as a

misuse of process of law and thus liable to be dismissed.

IN THELIGHT OF AVBOVE SAID FACTS AND

CIRCUMSTANCES NOw THE DEPONENT PROCEEDS TO
GIVE PARAWISE REPLY:
1. That the contents of the Para No.1 of the Petition are a
matter of record, hence need no reply.

2.That the contents of the Para No.2 of the Petition are

baseless and therefore denied. It is denied

rong, vague,

that the present Petitioner is senior citizen and

a the

present Petitioner be put to strict proof ofthe same.

DA
3. That the contents of the corresponding para are vague,

It is denied that the

wrong, baseless and therefore denied.
present Petitioner is a victim of physical, mental, verbal,

emotional, sexual, economical abuse/cruelties committed

the No.5 and his family members. It is

by Respondent
has taken forceful
denied that the answering Respondent
of the minor child from the Petitioner. It is
custody
minor
submitted that the petitioner had abandoned the

child and since then the minor child is in care and custody
of the Answering Respondent, being his biological Father
married the
It is denied that the present Respondent had

Petitioner solely for the purpose of sexual abuse. It

present
is submitted that averments of the corresponding para

pertaining to the marriage of the present Respondent are

not concerned with the subject is issue of the present

ulterior
Petition.It is further denied that there existed any
motive on the part of the Respondent or his family

Petitioner.
members to mislead the present

of the corresponding para are a

That the contents

átter of record and hence need no reply.

That the contents of the corresponding para of the

are wrong, vague, baselesS and therefore

Petition
 (8)
denied. It is denied that the parents of the Petitioner

gave any dowry to the answering Respondent or any

of his family members. It is further denied that any

demands were made by the answering Respondent

or his family members.
iii. That the contents of the corresponding para of the

Petition are wrong. vague, baseless and therefore

denied. It is denied that the answering Respondent

has habit of watching porn movies, and thereafter he
used to commit marital rape upon the present

Petitioner.

iv. That the contents of the corresponding para of the

Petition are wrong. vague, baseless and therefore

denied. It is denied that any cruelties were inflicted

by the Respondent or his family members upon the

present Petitioner. It is further denied that the

Answering Respondent ever had beaten up the

present Petitioner at any point of time.

T h a t the contents of the corresponding paragraph
areamatter of record and hence needs no reply.

VI Thatthe contents of the corresponding para of the

Petition wrong, vague, baseless and therefore
are

denied tt is denied that in the month of February

/NCIA
 2022, the Petitioner was mercilessly beatenup by the

Respondent No.5, 6 and his family members and

hence they compelled the Petitioner to leave the

matrimonial home. It is further denied that in the

aforesaid circumstances the Petitioner left the

matrimonial home without her dowry articles and

stridhan. It is submitted that the present Petitioner

had abandoned the minor child due to her whims

and fancies.

vii. That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied that the Answering Respondent

had taken forceful custody of
or his family members
the minor child.

vii. That the contents of the corresponding para of the

Petition are wrong. vague, baseless and therefore

denied. It is denied that the responded number 6

father in law mother in laW and sister in law of the

at any point of time pressurized the

petitioner
petittonerto give more dowry articles. It is further

denied that the aforesaid in laws used to tell the

they have good

petitioner that in this society a

and demanded more articles from her but

reputation
 the petitioner showed her inability to fulfill their

aforesaid demands as the parents of the petitioner

under heavy debt due to the expenditure in the

marriage of the petitioner.

ix. That the contents of the corresponding para of the

Petntion are wrong, vague, baseless and therefore

denied. It is denied that soon after the marriage

physical and mental cruelty was started by the

respondent number 5, 6 and his family members it is
further denied that after the marriage no love and
affection was given to the petitioner by the

respondent number 5. It is further denied that the

petitioner was treated like a maid in her own house.
That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied that any concealment whatsoever

was done by the respondent number 5 for his family

members.

That the contents of the corresponding para of the

Petition are
wrong vague, baseless and therefore
denied. It is denied that to achieve ulterior motives

responded number 5 and 6 married the petitioner. It

that the rest of the contents of the
is submitted
 and hence
corresponding parameter of recording
need no reply.
XIl. That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied thaton 24/03/2022 respondent
number 5 and 6 again visited the parental House of

the petitioner and thereafter started shouting upon

the petitioner and his family members to give the

custody of minor child it is for the denied that when

the petitioner refused to give custody of minor child
then responding number 5 and 6 in conspiracy with

each other forcefully took the custody of the child

from the petitioner and run away. It is submitted

that it was the petitioner who had abandoned the

minor child and since the abandonment of the child

the present partitioner and his family members had

been taking care of the minor child and hence the

question of forcefully taking the custody of the minor

child from the present petitioner does not arise.

xii. That the contents of the corresponding para of the

Petition are denied for want of knowledge to the

extent of dialling the police by the present Petitioner

and the rest of the contents of the para are wrong,

 baseless and therefore denied. It is denied
vague,

that the respondent ever used his official position

influence any matter between the present petitioner
and the answering respondent.
xiv. That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied thatthat the respondent number

5 and 6 came with some other influential persons

due to which the petition and his family members

had to wait outside the police station on the other

hand responding number 5 and 6 were sitting inside
the SHO room and tea was served to them. It is

submitted that vide her complaint to the police

officials, the present petitioner intended to misuse

the iron hand of law into taking forcefully custody of

the minor child from the answering respondent,

when the fact remains that the minor child was

abandoned by the present petitioner and it is the
answering respondent and his family members who
have been taking care of the minor child till date.

x. That the contents of the corresponding para of the

petition are denied for want of knowledge and the

petitioner be put to strict proof of the same.

D:A
 xvi. That the contents of the corresponding pair of the

petition do not relate to the present respondent

however the petitioner be put to strict proof of the

contents of the corresponding para of the present

Petition.
xvii. That the contents of the corresponding para of the

petitioner denied for want of knowledge and the

petitioner be put to strict proof of the same.

xviii. That the contents of the corresponding para of the

Petition do no relate to the subject matter of the

present Petition and hence warrant no reply.

However the answering Respondents reserves his

right to reply towards the same as and when

required.

xix. That the contents of the corresponding para of the

Petition do no relate to the subject matter of the

present Petition and hence arrant no reply.

However the answering Respondents reserves his

right to reply towards the same as and when

required.
That the contents of the corresponding para are a
!A matter of record and hence need no reply.
XXi. That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied that the minor child Parth is an

illegal custody of the respondent number 5 and 6.

Xxii. That the contents of the corresponding para of the

petition do not relate to the present respondent

however the petitioner be put to strict proof of the

contents of the corresponding para of the present

Petition.

REPLY TO GROUNDS:

a. That the contents of the corresponding para of the

Petition are wrong, vague, baseless and therefore

denied. It is denied that the Petitioner is entitled to the

custody of the minor child. 1t is submitted that the act of

abandoning of the child by the Petitioner brings the

present matter out of a situation which can be stated to

be "Ordinary" which is imperative towards application

of Section 6 of the Hindu Minority and Guardianship

ACt, 1956.

b. That the contents of the corresponding para do no

relate to the answering Respondent and hence needs no

reply. However it is pertinent to mention here tlhat

 Guardian and Wards Act mandates that the custody

matters are to be decided by Family Courts and not

police oficials.
C. That the contents of the corresponding para do no

relate to the answering Respondent and hence needs no

reply.
d. That the contents of the corresponding para do n

and hence needs no

relate to the answering Respondent
reply. However it is pertinent to mention here that

Guardian and Wards Act mandates that the custody

matters are to be decided by Family Courts and not

police officials.
e. That the contents of the corresponding para ot the

Petition are wrong, vague, baseless and therefore

denied. It is denied that the answering Respondent or

any of his family member had taken the forceful custody

of the minor child. It is further denied that the custody

of the minor child with the answering Respondent is

It is pertinent to mention here that the

illegal custody.
biological father of the
answering Respondent is the
minor child which goes to show that the custody of the

minor child with the Respondent cannot by any way of

VDiA imagination be considered as Illegal custody.

 (16)
. That the contents of the corresponding para or the

Petition are wrong. vague, baseless and therefore

denied. It is denied that the Petitioner is capable of

taking care of the minor child. It is submitted that it was

the Petitioner herself who had abandoned the minor

child.
5. That the contents of the corresponding para is a matter

of record and needs no reply.

Last Para is prayer clause is misconceived, wrong and

hence denied. The Petitioner is not entitled to the relief

cláimed. The Writ Petition of the Petitioner deserves to be

Qut rightly dismissed.
1iden! re sence
has sigINO
DEPONENT
VERIFICATION:
I, Vikram Lal, the above named Deponent, do hereby
ktata on solemn affirmation that the contents of foregoing
påras jare true and correct to my knowledge and belief and
.
been concealed from this Hon'ble Court.
that nothing has
AU6 2022
Verified at New Delhi on thisday of, 202

CERTIFIED TH,THE DEPONE DEPONENT

Shri/Smt./km
/o, /o. o
dent
has su
on 29 AU6 2022

29 AUG 2022