Punjab-Haryana High Court
Heena Verma vs State Of Punjab And Ors on 26 October, 2024
Neutral Citation No:=2024:PHHC:139401
CRWP-2244
2244-2024 (O&M) -1-
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
264
CRWP-2244-20242024 (O&M)
Date of decision: 25.10.2024
.10.2024
Heena Verma ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Jasjit Singh Saini, Advocate
for the petitioner.
Mr. A. S. Samra, AAG, Punjab.
Ms. Promila Nain, Advocate
for respondent No. 4.
MANISHA BATRA, J. (Oral)
1. The present petition has been filed by the petitioner under Article 226 of the Constitution of India Indi making prayer for issuance of a writ in the nature of Habeas Corpus directing the officials respondents to get the alleged detenue, who is son of the petitioner, released from the illegal custody of respondent No. 4.
2. Brief facts of the case relevant for the purpose of disposal of the present petition are that the marriage of the petitioner was solemnized with respondent No. 4-Karanvir Singh on 09.11.2016 and one male child ld namely Arman Singh (alleged detenue) was born out of the wedlock on 30.04.2018.
30.04.2018 It is submitted that the petitioner is a well educated woman holding a Master's degree in Physical Education. After her marriage, she came to know that For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 1 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -2-
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respondent No. 4 had studied only upto higher secondary. He suffered paralysis attack after five months of marriage, which affected the left side of his face. She also came to know that he was addicted to synthetic drugs. He was even lodged in a rehabilitation centre before and after the marriage. However, still he did not stop consuming drugs. He also used to quarrel with the petitioner on trivial issues. The petitioner, on being harassed by him, had even got registered an FIR bearing No. 78 date dated d 25.09.2023, under Sections 323, 341, 354 and 34 of IPC at Police Station Naya Gaon, Mohali against respondent No. 4 and some other persons. It is her claim that subsequently, she was ousted from her matrimonial house and was not even allowed to meet her child.. The petitioner is stated to be residing separately from respondent No. 4 and her child and respondent No. 4 has filed a divorce petition against her. She has, thus, prayed for issuance of an appropriate writ directing the official respondents to get her child released from respondent No. 4, who is his father.
3. Learned counsel for the petitioner has argued that the petitioner, being mother of the child, is legally entitled to get his custody. The child has been forcefully detained by respondent No No.. 4, who is not taking his proper care and for the welfare and well being of the child, his custody must be handed over to the petitioner. Learned counsel for the petitioner has relied upon the authority cited as Mandeep Kaur vs. State of Punjab and others :
2021 (3) RCR (Civil) 451 to submit that a habeas corpus writ petition is maintainable for seeking custody of a child, who is illegally detained by someone. With regard to allegations levelled by respondent No. 4 that the petitioner is having adulterous relation with aforesaid Sukhpreet Singh Saini For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 2 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -3-
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and she is not capable of maintaining the child, learned counsel for the petitioner, while controverting these allegations, has submitted that even if it is believed for the sake of arguments that she is in ext extramarital ramarital affair with aforesaid person, it is well established law that any adulterous relationship or extramarital affair of either spouse cannot be the sole determining factor to deny him/her the custody of a child, unless it is proved that the adulterous adulterou relationship in itself is pernicious/detrimental/injurious to the welfare of the child,, which is not so in the present case.
case Reliance in this regard is also placed upon Vineet Gupta vs. Mukta Aggarwal : 2024 NCDHC 782
782.. While submitting that the petitioner, being natural mother is legally entitled to get the custody of her son, it is urged that the petition deserves to be allowed.
4. Respondent No. 4 has filed reply controverting the pleas taken in the petition. It is submitted that he is the nat natural ural parent of the child, who is his son and,, hence, the custody of the child with him cannot be termed as illegal. He has also raised preliminary objection as to the maintainability of the present petition by submitting that the appropriate remedy for the petitioner would be to file a petition under the provisions of Guardians and Wards Act, 1890 to seek custody of the child and not to file a petition before this Court seeking issuance of a writ of Habeas Corpus for that purpose. While denying the allegations allegations as levelled by the petitioner, it is submitted that the petitioner had left her matrimonial home on 20.09.2023 and since then she had never tried to meet the child. In fact, the petitioner was having extra marital love affair with one Sukhpreet Singh Saini S and when the respondent No. 4 objected to the same, she threatened to involve him in some false case through Sukhpreet Singh Saini. Respondent No. 4 has placed on record some For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 3 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -4-
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photographs of the petitioner, wherein she is shown to be in very intimate position with aforesaid Sukhpreet Singh Saini. It is further submitted that he is maintaining the child and is bearing all of his expenses to the best of his capacity and in case the custody of the child is given to the petitioner, the same will not be in the the welfare of the child. Hence, it is urged that the petition is liable to be dismissed.
5. I have heard learned counsel for the parties at considerable length and have also gone through the record carefully.
6. This is an admitted position that the petitioner was married to respondent No. 4-Karanvir Singh on 09.11.2016 and they were blessed with a son, namely Arman Singh, who being born on 30.04.2018 is of the age of 06 years, 05 months and 25 days as on today. The he claim of the petitioner is that respondent No. 4 was a drug addict and used to misbehave and mistreat her and had ousted her from the matrimonial house, while keeping the custody of the minor child with him. She has also alleged that since respondent No.. 4 is a drug addict, he along with respondents No. 5 and 66,, who are his brother and sister-in-law, law, is not able to take care of the minor child.
7. No doubt, this Court while dealing with a petition for issuance of a writ of habeas corpus with regard to custody of a minor child may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances circumstances. However, such decision must depend on the totality of the facts and circumstance circumstances of each case brought before the Court. A writ of habeas corpus in child custody matters can be invoked only in those cases where the person having th thee child is not entitled to his/her her legal custody. In child custody matters remedy lies only under For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 4 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -5-
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Guardianship nship and Wards Act and it cannot be bypassed by filing a habeas corpus petition unless the corpus of the child is in illegal or unauthorized custody. Reliance in this can be placed upon Pavan Kumar Kathuroju v State of Telangana, 2024 SCC OnLine SC 31. Reliance can also be placed upon the authority cited as Nirmala vs. Kulwant Singh and others : 2024 AIR Supreme Court 23445, 23445, wherein Hon'ble Supreme Court, while relying upon Yashita Sahu vs. State of Rajasthan and others : 2020 AIR (Supreme Court) 577 has held that the habeas corpus is a prerogative writ which is an extraordinary remedy and recourse to such a remedy should not be permitted unless the ordinary remedy remedy provided by the law is either not available or is ineffective. It has been held that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor is by a person who is not entitled to his legal custody and in child custody matters, the writ of habeas corpus is maintainable only where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. Similar view was expressed by Hon'ble Hon' Supreme Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and others 2022 SCC OnLine SC 885.
885
8. In the present case, there is no dispute about the fact that respondent No. 4 is the biological father of alleged detenue,, who was born out of the wedlock of the petitioner and respondent No. 4.. Hence, it cannot be stated that his custody with respondent No. 4 is illegal in any manner. There is nothing on record to show that after the petitioner separated from respondent No. 4, she he had filed any appropriate petition before a competent Court of law seeking custody of the minor child and was either given his custody or was For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 5 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -6-
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given some visitation rights, rights, so that it can be stated that by separating the child from the petitioner or denying her vis visitation itation rights, respondent No. 4 has defied the said order. So far as the ratio of law laid down in Mandeep Kaur's Kaur case (supra) and Vineet Gupta's case (supra) is concerned, the same is not disputed at all. However, the same is not applicab applicable to the peculiar facts and circumstances of the present case as in Mandeep Kaur Kaur's 's case (supra), the age of the child was found to be below 05 years. T Therefore, in view of Section 6 of the Hindu Minority and Guardianship Act, 1956, as per which, the custody of a minor who has not completed the age of 05 years should ordinarily be with the mother, mother, the custody of the child was directed to be given to her mother by issuing a writ of Habeas Corpus. Similarly, the ratio of law laid down in Vineet V Gupta's 's case (supra) that the adulterous spouse is not the incompetent parent and such fact cannot be made a sole ground for denying custody of the child is also not disputed but the petitioner can take this plea in a petition filed under the Guardians Guardians and Wards Act and not in the present petition as in a petition filed under Article 226 of the Constitution of India, this Court is only required to see whether the child is detained by a person who is not entitled to his legal custody, custody, which cannot be ssaid aid in the present case as respondent No. 4 is admittedly natural father of the child.
9. Certain allegations and counter allegations with regard to misbehavior and conduct of the parties to lis have also been made by them.
the However, at this stage, there is no need to dilate upon the same and without casting any aspersion on the moral moral character of the petitioner or respondent No. 4 and considering the position of law as laid down in aforecited judgments, this Court is of thee view that the remedy available to the petitioner For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 6 of 7 ::: Downloaded on - 16-11-2024 09:07:45 ::: Neutral Citation No:=2024:PHHC:139401 CRWP-2244 2244-2024 (O&M) -7-
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for obtaining btaining custody of the child is to file an appropriate petition under the Guardianship and Wards Act, 1890 and not to seek grant of writ of habeas corpus. Accordingly, Accordingly, the present is dismissed, being devoid of any merit.
25.10.2024
.10.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
For Subsequent orders see CRM-W-1363-2024 Decided by HON'BLE MRS. JUSTICE MANISHA BATRA 7 of 7 ::: Downloaded on - 16-11-2024 09:07:45 :::