Punjab-Haryana High Court
Kulwinder Kaur vs State Of Punjab And Others on 24 April, 2014
CRWP No. 1610 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRWP No. 1610 of 2013
Date of Decision : 24.04.2014
Kulwinder Kaur .......Petitioner
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. Viren Jain, Advocate
for the petitioner.
Ms. Anmol Grewal, AAG, Punjab.
Mr. Harmanjit Singh, Advocate
for respondents No. 4 to 8.
Mr. Prit Inder Pal Singh, Advocate
for respondent No. 9.
R.P. Nagrath, J.
Petitioner and respondent No. 4 were married on 21.02.2007. Two children were born from the wedlock. The male child Daljit Singh was about five years and the female child two years old at the time of filing the instant petition.
2. The petitioner is seeking writ in the nature of habeas corpus for a direction to respondents No. 4 to 9 to produce the minor children from their illegal detention and custody.
3. During course of arguments, learned counsel for the Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -2- petitioner has confined his prayer with regard to immediate custody of Jaspreet Kaur the female child born on 03.09.2011 and for the male child it was submitted that the petitioner would take appropriate recourse before the Guardian Judge/competent Court.
4. Respondents No. 5 and 6 are the parents of respondent No. 4, respondent No. 7 his brother and respondent No. 8 the wife of respondent No. 7. According to the case set up by respondents Jaspreet Kaur was given in adoption to respondent No. 9 and his wife.
5. The petitioner alleges that she was subjected to immense physical and mental cruelty by her in-laws making her life a hell. Detailed allegations have been made with regard to certain incidents of maltreatment, on account of demand of dowry. The petitioner was ultimately turned out of the matrimonial home on 11.11.2011 and was not allowed to take the minor children with her. The petitioner went to her parents' house. Despite several efforts respondent Nos. 4 to 6 refused to send back the minor children.
6. The petitioner made a complaint to the police authorities and on the intervention of respectables and elders, respondent No. 4 manifested to have realized the mistake and promised not to repeat his ill deeds. With a hope to get back the children, petitioner decided to live with respondent No. 4 in her matrimonial home. However, respondents did not mend their ways and continued to torture the petitioner. It came as a shock to the petitioner that the children have been sent to unknown place and left with unknown Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -3- persons. The respondents threatened to eliminate the petitioner and warned her not to raise her voice of protest. She could not bear anymore and went to her parents' house. Father of the petitioner went to the in-law house of petitioner but he was abused and insulted. It was learnt by the petitioner that the female child has been sold in exchange of money to respondent No. 9 without consent of the petitioner. The petitioner even made a complaint (Annexure P-3) at the police station but the police has failed to take any action.
7. Respondents No. 4 to 8 in their joint reply stated that petitioner is in the habit of frequently leaving the matrimonial home. She is quarrelsome and hot headed lady. Earlier she had problem with joint family and to resolve the controversy, respondent No. 4 got a separate accommodation and left his aged parents. For supporting this contention, the respondents placed on record Annexure R-4/1, the ration card dated 19.03.2010 of separate unit of the family comprising of the petitioner, respondent No. 4 and 1½ year old son. The female child was born to the petitioner on 03.09.2011. It is stated that the petitioner was not happy with the birth of female child whereas that was a matter of great joy to respondent No. 4 and his family members. However, the things went wrong as the petitioner left the matrimonial home on 11.11.2011, leaving behind the newly born female child of 1½ month and also the son. Repeated requests were made to the petitioner and her parents but she refused to join company of the Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -4- husband. It was further stated that the petitioner in fact suggested her husband to give the daughter in adoption as she had made up her mind not to return to the matrimonial home and look after the children.
8. It was further stated that on 05.01.2012, the female child was adopted by respondent No. 9 and his wife as they were a issueless couple. This adoption ceremony was held in the presence of 'Shri Guru Granth Sahib Ji' as per Sikh rites and ceremonies with the approval of Sangat. The certificate in proof of the aforesaid ceremony is Annexure R-4/2.
9. After a period of more than one year of the said adoption, the petitioner joined the company of her husband and the minor son but again left the matrimonial home in the month of March, 2013. Till then she never asked for the custody of her daughter. Thereafter, the petitioner is said to have made a complaint before Women Cell, Ludhiana where she arrived at a settlement and admitted that the child had already been adopted by respondent No. 9. That compromise document dated 19.03.2013 is Annexures R-4/3. However, due to temperamental differences, the petitioner is stated to have left the matrimonial home in the moth of July, 2013. Respondent No. 4 and his family approached the petitioner but she refused to join their company. Ultimately, respondent No. 4 filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights in the Matrimonial Court at Ludhiana. Notice in that case was issued to the petitioner for Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -5- 19.11.2013 by the Matrimonial Court.
10. Respondent No. 9 has adopted the reply filed by respondents No. 4 to 8.
11. The petitioner also filed an additional affidavit to give response to the reply. It is stated that the plea of alleged adoption is after thought and procured one. It is stated that the petitioner never arrived at any settlement wherein she gave consent for the alleged adoption. It was only during the period when the petitioner resumed company of her husband, that she was informed about giving of the female child in adoption in her absence and it was assured to take back the child from respondent No. 9. In the meantime, respondent No. 7 took responsibility to arrange meeting of child till the child was taken back. When the petitioner raised serious protest for the illegal act of respondents No. 4 to 8, she was threatened with dire consequences for raising voice of protest. According to the petitioner, she was ultimately turned out of the matrimonial home sometime in the month of May, 2013.
12. I have heard learned counsel for the petitioner, the State counsel, counsel for respondents No. 4 to 8 and also the counsel for respondent No. 9 and given my thoughtful consideration to the controversy.
13. As per document Annexure R-4/2, the female child was given in adoption by respondent No. 4 alone while the petitioner had already left the matrimonial home. It was contended for respondents No. 4 to 8 that respondent No. 9 is a family friend of Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -6- these respondents. But as per reply of respondents No. 4 to 9 and the document of compromise, there is nothing to suggest how respondent No. 9 was known or related to the family of respondents No. 4 to 8.
14. The bone of contention for the respondents is that, it was inhuman act on the part of petitioner to abandon 40 days old child by leaving the matrimonial home. However, from facts it cannot be prima facie believed that mother of a 40 days child would leave it with the father voluntarily unless the circumstances compelled her to do so. It cannot be accepted that a mother would feel unhappy with the birth of a female child. It is primarily due to marital discord or may be the harassment, that the petitioner was forced to leave the matrimonial home. The petitioner and respondent No. 4 had started living separate from the other family members in the year 2010 even before the birth of Jaspreet Kaur. The document Annexure R-4/3 dated 19.03.2013 seems to have been executed by the petitioner with a hope of restoring martial ties and the promise of getting back the female child.
15. Learned counsel for respondents referred to paragraph Nos. 9 and 10 of the compromise dated 19.03.2013 Annexure R-4/3, which read as under:-
"9. That Harpinder Singh will be liable to take his wife to her parental home or other relatives place etc. in good bad times and Kulwinder Kaur will also visit her parental house or any other relatives with Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -7- the prior consent of her husband.
10. That Maninder Singh r/o Jaipur who is brother-in-
law of Kulwinder Kaur took responsibility that whenever Kulwinder Kaur wants to meet her daughter then he is liable to meet her who is given in adoption by Harpinder Singh."
16. Para 10 of Annexure R-4/3 as quoted above does not indicate that petitioner had consented to the said adoption. Learned counsel for respondents, however, referred to the affidavit of petitioner (Annexure R-4/4) in which she admitted that the female child was given in adoption to one Abhinav Singh resident of Meerut. Annexure R-4/4 does not bear any date. From original of this document on record, it is not disputed that this document in the nature of affidavit was not attested by any authority. Such a document, thus, can be safely ignored as manipulated. The conduct of private respondents in preparing these documents when the petitioner returned to the matrimonial home and stayed for a short while seem to be only a clever devise to enable them to set up a plea of regular adoption by respondent No. 9 and his wife.
17. The document Annexure R-4/2 has no legal sanctity as such an adoption is in breach of provisions of Hindu Adoptions and Maintenance Act, 1956 (for short 'the Act'). Sub-section (1) of Section 9 of the Act says that no person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption. Sub-section (2) of Section 9, further says that subject to Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -8- the provisions of sub-section(4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
18. It would be relevant to refer to Section 7 of the Act of 1956, which reads as under:-
"7. Capacity of a male Hindu to take in adoption -
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind."
19. Hon'ble Supreme Court in Brijendra Singh vs. State of M.P. and another, AIR 2008 Supreme Court 1056, has held that for a valid adoption wife's consent must be obtained prior to adoption and cannot be subsequent to an act of adoption as per proviso to Section 7 of the Act. The proviso lays down consent as a condition precedent to an adoption which is mandatory and Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -9- adoption without wife's consent would be void. Similar, therefore, should be interpretation of the proviso to sub-section (2) of Section 9. Therefore, prima faice the document of adoption set up by private respondents seems to be not in accordance with provisions of the Act.
20. Having found the custody of female child of petitioner, with respondent No. 9 and his wife as illegal the petitioner is bound to be granted the relief prayed for.
21. Section 6 of the Hindu Minority and Guardianship Act, 1956 says that the natural guardian, in respect of the minor's person as well as in respect of the minor's property are -
(a) in the case of a boy or an unmarried girl - the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b)(c)(d)..........................................................................
22. It was next contended for the respondents that the petitioner has relied upon a fabricated document and thus not entitled to invoke the discretionary jurisdiction of this Court. It is submitted that the complaint (Annexure P-3) statedly made by the petitioner to the police on 24.07.2013 is for offences under Sections 363, 372 and 373 read with Section 34 and 120-B IPC whereas the complaint was in fact only under Sections 498-A and 406 read with Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -10- Section 34 and 120-B IPC. Learned counsel for respondents No. 4 to 8 has placed on record the copy of said application received by the police on 24.07.2013 during arguments. It is submitted that copy of the complaint (Annexure P-3) was received by the police when notice of motion was issued in the instant petition as per endorsement made thereon. The copy received by the police has also been placed on record by the learned counsel.
23. I am unable to agree with the above contentions as no such specific stand was taken in the reply filed by respondents. Learned petitioner's counsel submitted and rightly so that there may be some mistake in mentioning the date of complaint (Annexure P-3) but in the complaint filed under Section 498-A and 406 IPC it was specifically stated that a complaint against the selling of the minor daughter for ` 5 lacs by respondent No. 4 for unlawful and immoral purposes, was submitted by the petitioner on 12.06.2013 upon which no action was taken by the police. So in no way this Annexure P-3 can be said to be a fabricated document. Due to inaction of police on the complaint, Annexure P-3, the respondents cannot claim any advantage.
24. Learned counsel for the contesting respondents, however, placed reliance upon Sumedha Nagpal vs. State of Delhi and others, 2000 (9) SCC 745, where the mother was found to have abandoned the child and went to her parent's house and the child remained in custody of the husband to her exclusion for nearly seven months. It was held that any disturbance by changing Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -11- the custody would not be conducive for the welfare of the child and the petitioner before Hon'ble Supreme Court was relegated to the remedy to file appropriate proceedings leaving all the matters arising in the case to be decided by appropriate forum irrespective of whatever was stated during the course of order passed by the Hon'ble Supreme Court.
25. A similar question was raised before the Division bench of this Court in Preet Ranjan Kaur vs. Harjit Singh and another, 2013 (2) HLR 22, wherein reference was made to subsequent decision of Hon'ble Supreme Court in Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42.
26. The conclusion in paragraphs No. 50, 51 and 52 of Gaurav Nagpal's case (supra) are reproduced as under:-
"50. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case, the court has to give due weightage to the child's ordinary contentment, health, education, intellectual Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -12- development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
51. The word "welfare" used in section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases."
52. The trump card in the appellant's argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be beneficiary of his own wrongs. The High Court has referred to these aspects in details in the impugned judgments."
Hon'ble Supreme Court in that case also referred to Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -13- Howarth v. Northcott, 152 Conn 460, on the following observations:-
"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate.
It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child."
27. The Apex Court in Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. The Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -14- question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.
28. It is contended by the learned counsel for respondent No. 9 that the child is in custody of respondent No. 9 and his wife for more than two years and it would be a great hardship for the respondent No. 9 and his wife in case the custody of child is now disturbed when the child has been looked after properly by respondent No. 9.
29. The above contention, though seems to be attractive, cannot be granted any sanctity in these proceedings when it has been found that the transfer of custody of the child to respondent No. 9 and his wife was not legal as claim for adoption has been prima facie found to be violative of the provisions of the Act of 1956. When respondents No. 4 to 8 have themselves parted with the company of the child it would be always in the welfare of the child to give custody of the child, who is less than three years of age, to the mother.
30. It would be quite useful to briefly refer to the principle of law applicable in such cases while dealing with this kind of sensitive and delicate issue. In Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14, the Hon'ble Supreme Court held that ordinarily a female child should be allowed to remain with the mother, so that, she can be properly looked after. The girl child in that case was 5 years old.
31. Once it is found that the child is prima facie in illegal Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -15- custody of respondent No. 9 and his wife the writ in the nature prayed for has to be allowed. In fact the care and warmth of both the parents is required during the infancy of child at impressional age but the scales in the instant petition till in favour of the mother who had all along been trying to settle her matrimonial life. If the petitioner has somewhat delayed in coming to this Court that cannot deprive her of the right to get back the child as it seems from the material placed on record, she even made serious efforts to resume company of her husband.
32. Learned counsel for respondents No. 4 to 8 submitted that a petition for restitution of conjugal rights (Annexure R-4/5) was filed by respondent No. 4 on 24.08.2013, in which there was a specific plea that the female child was given in adoption with the consent of petitioner. That will not in any way impute any knowledge of adoption given to respondent No. 9 and his wife as the instant petition was filed on 30.08.2013 i.e. just few days therefrom.
33. The other contention by the contesting respondents is that wife of respondent No. 9 has not been impleaded as respondent. This contention is untenable because when this matter was listed on 03.10.2013, it was stated that the child is in custody of respondent No. 9, who is being represented in this case and was directed to produce the child in the Court. The child was produced by the wife of respondent No. 9 on 10.10.2013. In the circumstances of the case the wife of respondent No. 9 is Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -16- effectively represented in the instant petition.
34. In view of the above, it is found expedient and appropriate that the custody of the female child Jaspreet kaur is restored to the mother. The instant petition is allowed and it is directed that respondent No. 9 and his wife would hand over the child to the petitioner within a period of one month of receipt of certified copy of this order. The respondents No. 4 to 8 would also assist in implementing this direction. The State through its functionaries especially respondent No. 2-Commissioner of Police, Ferozepur would ensure the compliance of this order. Respondent No. 4 would have fortnightly visitation right to meet the minor daughter on Saturdays from 11.00 a.m. to 04.00 p.m. For fixing the date and time of such meeting, respondent No. 4 may apply to the Guardian Judge for appropriate directions. Respondent No. 4 would also be at liberty to apply to the Guardian Judge for weekly visitation rights after the above arrangement continues satisfactorily for four months continuously.
35. The aforesaid arrangement is, however, temporary measure till the matter is finally decided on an application that may be filed before the Guardian Judge/competent Court. The petitioner would also be at liberty to seek custody of the male child before the competent Court.
36. This Court is quite sanguine that on moving such application(s) by the petitioner or respondent No. 4, the Guardian Judge/competent Court would dispose of the matter expeditiously. Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -17-
37. Respondent No. 9 and his wife would also be at liberty to seek appropriate remedy before the competent Court for establishing a valid adoption.
April 24, 2014 ( R.P. NAGRATH )
jk JUDGE
Jitender kumar
2014.05.01 17:08
I attest to the accuracy and
integrity of this document
Chandigarh