Name: Capt. Dushyant Somal vs Smt. Sushma Somal and Anr
Citation: AIR 1981 SC 1026
Appellant: Dushyant Somal
Respondent: Sushma Somal
Date of decision: February 18, 1981
Bench: Hon’ble Justice O C Reddy and Hon’ble Justice B Islam
Relevant case: Mohd. Ikram Hussain vs State Of U.P. & Others, 1964 AIR 1625
Facts:
1. Appellant married Respondent on May 10, 1973. A daughter Sweta and a son Sandeep born are the children. There was separation between husband and wife and they appear to have been living separately since 1976. The children were living with the mother.
2. On an allegation that Sandeep was removed from her custody by her husband, the wife moved an application under the Guardians and Wards Act seeking custody of her minor son Sandeep. She obtained an ex-parte order and pursuant to the order obtained by her, with the help of the Police, she recovered custody of her son Sandeep.
3. One day Sandeep walked out with his grandmother Shanti Devi and was waiting at the bus stop, Appellant accompanied by three or four other persons came in a car and forcibly took away the child. Respondent came towards the place where her son was to board the bus. She found their mother shouting for help. On enquiry she was told about the kidnapping. She immediately rang up the Police Control Room and gave a report. The Police registered a case under Section 363 Indian Penal Code against her husband. She filed an application under Article 226 of the Constitution in the Delhi High Court for the issue of a Writ of Habeas Corpus directing her husband to produce her son.
4. Appellant submitted that having regard to the pendency of the prosecution under Section 363 of the Indian Panel Code, the High Court should not have issued a Writ of Habeas Corpus for the production of the child. He suggested that there was violation of Article 20(2).
Issue involved:
- Whether there was a Violation of article 20(2) of the Indian constitution in the above mentioned facts?
Obiter dicta:
1. “It was submitted that the appellant neither give evidence, nor examine any witness on his behalf and he did not cross-examine his wife because, he would be disclosing his defence in the criminal case, if he so did. He could not be compelled to disclose his defence in the criminal case as that would offend against the fundamental right guaranteed by Article 20(3) of the Constitution.
2. Article 20(3) guaranteed that a person accused of an offence shall not be compelled to be a witness against himself.
The court stated that if he examined himself he could still refuse to answer questions, which might incriminate him in pending prosecutions. He was also free to examine or not other witnesses on his behalf and to cross examine or not, witnesses examined by the opposite party. Article 20(3) guaranteed that a person accused of an offence shall not be compelled to be a witness against himself.
Therefore there is no question arises regarding the violation of article 20(3).”
Rationale:
As per the issue raised in the case, court suggests that “The criminal case has not concluded and there has yet been no conviction and punishment for the alleged offence of kidnapping.
Therefore no prosecution and punishment for the offence of kidnapping can disturb the way of the appellant being punished for Contempt of Court.
In regard to the sentence, instead of the sentence imposed by the High Court, court substitute a sentence of three months, simple imprisonment and a fine of Rupees Five hundred. The sentence of imprisonment or such part of it will stand revoked on the appellant-petitioner producing the child in the High Court.”
Judgement:
After considering the above mentioned reasons the Appeal and the Special Leave Petition are dismissed.
Conclusion:
The above mentioned case deals with the application and Violation of Article 20(2). During a dispute between the Appellant and Respondent regarding the custody of their children, the Appellant kidnapped their son after which the Respondent filed an application under Article 226 of the Constitution in the Delhi High Court for the issue of a Writ of Habeas Corpus directing her husband to produce her son.
The Police registered a case under Section 363 Indian Penal Code against the appellant. He argued in his Special Leave petition that High Court should not have issued a Writ of Habeas Corpus for production of the child during the pendency of the prosecution under Section 363 of the Indian Panel Code as it was violation of Article 20(2).
The court dismissed his appeal stating that since the criminal case has not concluded and there has yet been no conviction and punishment for the alleged offence of kidnapping, therefore no question arises regarding the Violation of Article 20 (2).
By Param Mansinghka
Edited By: Tanvi Mahajan, Publisher, Law Insider
Published On: February 13, 2022 at 10:30 IST