Himachal Pradesh High Court
Saurav Rattan vs State Of Hp And Others on 9 May, 2025
1 Neutral Citation No. ( 2025:HHC:13309 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.WP No. 11 of 2023 Reserved on:10.04.2025.
Pronounced on: 09.05.2025
Saurav Rattan ......Petitioner
Versus
State of HP and others .....Respondents
_________________________________________________________ Coram:
Hon'ble Mr. Justice G.S. Sandhawalila, Chief Justice. Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?
For the petitioner : Petitioner in person with Mr. Shrawan Dogra Senior Advocate with Mr. Amrinder Singh Rana and Mr. Tejasvi Dogra, Advocates.
For the respondents :Mr. Gobind Korla, Additional
Advocate General with Ms.
Priyanka Chauhan, Deputy
Advocate General for
respondents No. 1 to 4-State.
Mr. Neeraj Gupta, Senior
Advocate with Mr. Ajeet Pal
Singh Jaswal and Mr. Vedhant
Ranta, Advocate, for
respondent No. 5 to 9.
G.S. Sandhawalia, Chief Justice.
In the present Habeas Corpus Petition, the petitioner, who is father of two minor girls, namely, Ms. 2 Amyra Rattan (at present aged around 9 years) having been born on 15.09.2016 and Ms. Anaysha Rattan (at present aged around 7 years) having been born on 30.10.2018, seeks their custody by way of a writ of Habeas Corpus, on the ground that they are possibly in the illegal and unauthorized custody of respondents No. 6 to 9, who are close relatives of his wife- respondent No. 5 Chery Mohil and in such circumstances seeks direction for handing over the lawful custody of the minors' being father and natural guardian.
2. The pleadings in the Habeas Corpus Petition goes on to show that the petitioner, who is a practicing Advocate in this Court was also an exceptional sportsman having played international cricket and played Ranji Trophy for Himachal Pradesh and has also represented North India Cricket team in the year 2004. The petitioner was also captain of Himachal Pradesh under-22 team. He was a member of Junior Selection Committee (under-19, under 16 and Under 14 Teams) of Himachal Pradesh Cricket Association (HPCA) and 3 presently he is the member and selector of Sirmaur District Cricket Association.
3. The petitioner solemnized marriage with respondent No. 5 on 10.11.2013 and from the said wedlock, two minor daughters have been born and unfortunately, relationship in the year 2020 got strained between the husband and the wife. As per the averments contained in the petition, respondent No. 5 wife left the company of the petitioner to live with her parents, who were living at Nahan and also has taken the two minor daughters Amyra Rattan and Anaysha Rattan along with her. It is the case of the petitioner himself that he has lost both his parents and his elder brother also, is unmarried and he has no other family member except the wife and two daughters, who are emotionally attached with him. At the time when the wife left the company of the petitioner in 2020, the elder daughter was admitted in Loreto Convent Shimla (Tara Hall) and the younger daughter was not going to School. It is stated that the petitioner was bearing all the expenses of both the daughters. It is averred that minor 4 daughters came back to Shimla and lived with the father at Shimla for about 25 days without the mother respondent No. 5 w.e.f. 01.06.2021 to 25.06.2021. Thereafter respondent No. 5 came back to the matrimonial home for a brief period and on 04.09.2021, she again left her matrimonial home along with daughters to live with her parents at Nahan. The petitioner is stated to have undergone medical treatment in IGMC Shimla for Bone Tuberculosis and surgery for Gall Bladder stone also at IGMC Shimla in the years 2021-2022. It is stated that on both these occasions, despite having knowledge, respondent No. 5- wife never attended the petitioner and he had to take care of himself alone or through his friends.
4. It is stated that the wife filed a case Under Domestic Violence Act,2005 (hereinafter referred to as 'the D.V. Act, 2005' for short) on 09.11.2021 at Nahan which is pending adjudication before the Chief Judicial Magistrate, Sirmaur at Nahan. It is also the case of the petitioner that he moved an application under Section 21 of the D.V. Act, 2005, on 18.01.2022 for grant of 5 visitation rights to meet his minor daughters but in the said proceedings no order as prayed was granted or rejected, for almost 2 years and 9 months and the application is stated to be still pending and resultantly, the Guidelines framed by this Court, namely "Child Access & Custody Guidelines" are being violated. Similarly, the averment is made that on 15.12.2022, the petitioner filed a case under Guardians and Wards Act, 1890 only to the extent of visitation rights as prayed in the earlier application but even after lapse of almost ten months, the interim application of the petitioner is still pending in the Court of District Judge, Sirmaur at Nahan and no interim order having been granted, cause of action is sought to be arisen as he had filed one more application under Section 23 of the DV Act, 2005 for visitation rights on 20.01.2023 and the same is also pending for the last about 9 months.
5. It is his case that on 06.9.2023, he came to know that his wife had come from Doha, Qatar and had asked for a specific date and therefore, he came to know that she was staying there on account of her 6 employment and became worried about the lawful custody of his minor daughters. It also came to his knowledge that the minor daughters are being unlawfully and illegally kept in the custody of respondents No. 6 to 9 who are not entitled to have their lawful custody under law. It has been specifically averred that before marriage, respondent No. 5 was working with Qatar Airlines and she left the said job in the year 2015 after marriage. Thus, apprehending that his daughters are not being properly looked after in the absence of their mother and particularly when the family members of respondents No. 6 to 9 are strangers to them, the present petition has been filed on 05.10.2023. It is also averred that he has been directed to pay maintenance of Rs. 15,000/- w.e.f. 01.04.2022 and has paid arrears to the tune of Rs. 40,000/- and is ready to deposit the remaining arrears in one go, provided the same is utilized for the benefit of the minor daughters and if they are admitted in a reputed school in Shimla subject to Mid-Session admission problem. The minor daughters are being kept in illegal and unauthorized 7 custody either in the house of respondent No. 6 or respondent No. 9. In the house of respondent No. 6, the other members include her three sons, three children and two daughter-in-laws, including respondent No. 8, who is sister of the wife of the petitioner. Since respondent No. 9 is mother of the wife of the petitioner and respondent no. 5 who is residing in a separate house in such circumstances, it cannot be assumed that the minor daughters of the petitioner would be getting proper and due care in the absence of their parents who are not residing with them.
6. Respondent No. 5 is stated to be residing in Doha, Qatar and therefore, the custody is stated to be illegal and without authority. It is further averred that father of the wife of the petitioner had asked the daughter to live separately from her parental house and she is occupying separate accommodation with her mother and minor daughters and are being kept in the custody of the mother of his wife and it amounts to illegal custody, since his wife is living in foreign country. The petitioner has further averred that if he is given 8 custody of the minor daughters, he would give visitation rights to his wife as he has reasonable source of income since he is practicing Advocate in the High Court as well as District Court Shimla in addition to other Tribunal/Courts. Being a cricketer he wishes to guide the daughters in the said sport and attach them to the said game. It is further averred that respondent No. 5 is being impleaded as her address has been given as that of respondent No. 9 her mother.
7. In the common reply filed by respondents No. 5 to 9, it has been averred that respondent No. 5 mother in order to sustain herself and also her minor children had to look for a job and upon having been granted the same, has kept her children with their maternal grandmother-respondent No. 9 since the petitioner has failed to watch the welfare of his wife respondent No. 5 as well as minor children. It is averred that she was compelled to take the job in Qatar Airways in March, 2023 and the minor children are with maternal grandmother respondent No. 9. It is further averred that neither respondent No. 5 has abandoned her minor 9 daughters nor has permanently shifted outside the country and the children are neither in illegal or wrongful confinement and the petition has been filed with malafide intention to take away the custody of the minor children and is an abuse of process of law. The maintainability of the Habeas Corpus petition as such itself has been questioned as the minor children were neither in illegal confinement rather are in the custody of their mother and natural guardian. Merely because she is working for gain in Qatar Airways and is frequently visiting her mother's house at Nahan where the minor daughters are residing, the same cannot be construed to be an act of abandonment or neglect on the part of the mother. The maternal grandmother of the minors and other family members are taking good care of the minors and also watching the welfare of the minors. It is averred that welfare of the minor children are being well protected and looked after by respondent No. 5 as well as by her mother and sister and on account of matrimonial discord between petitioner and respondent No. 5 since petitioner has failed to watch the 10 welfare of the minor children, thus the welfare of minor children is not with the father as has been wrongly projected.
8. Further, it is the case of respondent No. 5 that petitioner has failed to comply with the order of maintenance as granted by the Chief Judicial Magistrate vide order dated 24.9.2022 in an application moved by mother under Section 23 of the Protection of Women from Domestic Violence Act, 2005, and thus it does not lie in the mouth of the petitioner that he has the intention to take care and watch the interest of the minors. A reference has also been made to the order dated 07.10.2023 by the Chief Judicial Magistrate as well as to the order dated 13.10.2023 by this Court to the effect that the petitioner has been granted visitation rights and therefore, the averments have been rebutted that neither children have been abandoned nor respondent No. 5 has shifted out of the country. It is averred that on account of conduct of the petitioner much prior to the year 2020, the matrimonial relations had become strained and despite efforts made by 11 respondent No. 5, petitioner did not mend his ways and she was compelled to leave the matrimonial home and take away the minor with her parents at Nahan since she had been inflicted with atrocities upon her by the petitioner and had to take recourse of the provisions of the Protection of Women from Domestic Violence Act, 2005. It is further contended that since the petitioner is alone and the minor daughters need the care of their mother or any other female for the best growth and development of the children thus, even with such assertions, petitioner should be sensitive to the situation to judge himself as regards welfare of his minor daughters being with her mother "Nani" and it is in the interest of the minors. There are other female relatives at the house of "Nani" and nearby who are the best persons to watch the interest and welfare of the minors than that of the petitioner who is alone and a practicing Advocate in Shimla.
9. Reference has been made to the orders passed by Chief Judicial Magistrate on 24.09.2022 that the maintenance has not been paid for the welfare of 12 the minor children and petition has been filed projecting a false case and the petitioner has paid some amount in order to justify his stand that he was allegedly taking care of the minor children. It is averred that even the order passed by the Chief Judicial Magistrate, Sirmaur at Nahan has not been complied with by the petitioner. It has been further averred that elder daughter was studying in Loreto Convent School at Shimla and younger daughter was not school going when respondent No. 5 left the matrimonial home. It has also been averred that she has supported the petitioner financially in the past and has invested her personal finance to buy property in Shimla. It is further submitted that petitioner though had taken the minor daughters with him to Shimla and it was during Covid-19 period when the judicial work in Courts was not on, she permitted the petitioner to take the minors temporarily during such period. However, respondent No. 5 was not comfortable at all to leave the minor daughters with the petitioner alone especially when on account of his work and professional engagements, there is no other person 13 to take care for them throughout the day. For such reasons, the custody, if given to the petitioner, shall not be in the interest of the minors. The factum of undergoing medical treatment and surgery has been admitted but since the relationship had been strained, there was no occasion for respondent No. 5 to come back to Shimla and it cannot be construed to be an act of neglect. The order dated 07.10.2023 whereby visitation rights were granted as such has been referred to, and also order dated 24.09.2022 and the replies as such have been annexed to contend that there was no occasion to approach this Court when the order had also been passed on earlier occasion since the visitation rights have been already granted and there is no denial as such to the petitioner.
10. The filing of the case under Guardian and Wards Act is not denied and it is denied that respondent No. 5 has been playing victim card by crying in the open Court since she has been made to suffer and has exposed herself through various judicial proceedings. Due to the engagement with Qatar Airways on account 14 of a contract, the welfare of the children was being watched by her mother and in her absence by maternal grandmother Nani as she had not permanently shifted outside the country. It has been admitted that she was working with Qatar Airways from 11.12.2010 up to 06.01.2015 even after getting married with petitioner and had been compelled by the petitioner to leave the matrimonial home on account of failing to maintain her and the minor children and to secure herself financially; and given herself a bright future she tried to fetch a job as she had no option except to take up a job which may give her financial independence and also to meet the financial requirements of the minor children.
11. A reference has been given to various Educational Institutions at Nahan and other prospective employers where she had made an attempt to take job, like Mind Tree School at Nahan, Arihant International School Nahan Soperia Steria IT Company at NOIDA, Frankfin Training Institute at Chandigarh, Frankfin Training Institute at Delhi, Amex Gurgaon and British Airways Delhi based.
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12. On account of not having secured a job and in order to secure herself financially and to provide with adequate comfort to her minor children, she approached her previous employer Qatar Airways which gave employment to her from the month of March, 2023 onward. She, under the aforesaid employer took up a contractual job for five years and is being paid QAR 3800 (which works out to be Rs.87,000/- per month approximately). It is further averred that intention of the petitioner was to compel her to leave the said job and force her to live with him and he cannot be permitted to raise allegations against her that she has either abandoned the minor children or has no intention to watch the welfare of the minor children or has further shifted permanently outside country. It is further highlighted that the amount of maintenance has not been paid by the petitioner for a considerable period and it was only during the pendency of the present proceedings that petitioner transferred some amount in compliance to order passed on 24.09.2022 and thus, petitioner cannot be heard in projecting that he was 16 watching the welfare of the minor children. The petitioner had no intention to watch the welfare and interest of the children at any point of time rather he has taken advantage by filing the present petition.
Orders passed by Courts below:
13. Faced with the pleadings as such regarding the fact that wife of the petitioner has taken up an engagement with her earlier employer to sustain herself and her children and the fact that there is no dispute that only an amount of Rs.15,000/- has been awarded as maintenance coupled with the fact that while contesting the petition under Section 23 of the Protection of Women from Domestic Violence Act, 2005, the stand of the petitioner was that he was earning Rs.20,000/- only. The Chief Judicial Magistrate as such directed payment of Rs.15,000/-per month for the two minor daughters w.e.f. 01.04.2022. It was as such noticed that the petitioner has celebrated the first three birthdays of his daughters in top hotels and resorts and apparently is living a luxurious life and the wife had to maintain two minor daughters and he had paid Rs.61,990/- for the 17 elder daughter during the sessions 2021-2022 and he had shown his readiness and willingness and keeping in view the standard of living.
14. It is also the admitted case as such of the petitioner himself that he is in arrears as such of the said amount also which has been asserted by respondent No. 5 also as would be clear from paragraphs 2.25 that he has paid arrears to the extent of Rs.40,000/- and is ready to pay the remaining arrears in one go with the condition that the same is utilized for the welfare of the minor children. It is specific averment of the wife also that the petitioner has not cleared the arrears and on such account she has been forced to seek employment to sustain herself and minor daughters and the present petition has been filed without payment of maintenance amount.
Question of maintainability.
15. It is in such circumstances, we put to the learned Senior counsel as to maintainability of the present Habeas Corpus petition. From the pleadings, it is clear that respondents No. 5 to 9 are close relatives of respondent No. 5 wife and it would be apparent that the 18 children are in a secure environment with maternal grandmother. The wife having taken employment temporary to sustain herself cannot be put on weak pedestal as such that she has abandoned her minor children specially on account of the fact that sustenance is not forth coming from the petitioner himself.
16. Learned Senior Counsel for the petitioner has relied on plethora of judgments in support his case that being the father, he has preferential right of custody since the mother had abandoned the minor children. The judgments relied upon are: Gohar Begum versus Suggi AIR 1960 SC 93, Tejasvi Gaud versus Shekhar Jagdish (2019) 7 SCC 42, Yashita Sahu versus State of Rajasthan (2020) 3 SCC 67, Sandeep Kumar versus State of Punjab Cr.W.P No. 8954 of 2021 decided on 16.11.2021, Amol Ramesh Pawar versus State of Maharashtra Cr. W.P No. 1698 of 2013 decided on 27.02.2014, Anushree Goyal versus State of Madhya Pradesh WP No. 7739 of 2020 decided on 08.06.2024, Smt. Manju Singh and others versus State of Madhya Pradesh 19 and others WP No. 1104 of 2023 decided on 23.06.2023, Lajwanti and others versus Priti Devi and others, Cr.MMO No. 1164 of 2022 decided on 02.06.2023, Master Samarjeet Singh vs. State of UP and others Special Appeal No. 597 of 2019 decided on 19.10.2019, Kulwant Singh versus State of Haryana and others Cr.WP No. 1485 of 2021 decided on 23.08.2022 which has been set aside in Nirmala vs. Kulwant Singh and others (2024) 10 SCC 595 and Saksham Pathak (minor) versus Vishal Dubey and other Habeas Corpus petition No. 467 of 2020 decided on 15.12.2020, apart from the Child Access & Custody Guidelines framed by this Court.
17. The aforesaid judgments relied upon are distinguishable. In Gohar Begum's case the dispute was between mother and her associate and both the contesting parties were singing girls and it was in such circumstances the Apex Court had allowed the petition for recovery of the custody of the child which had been denied by the High Court. The position, as noticed in the 20 present case is between the wife and the husband's contesting claims and there are no third parties as such, who have exclusive custody of the children and there is only a living arrangement as such with close relatives and it is only account of tacit consent with respondent No. 5. Similarly, in Tejasvi Gaud's case the minor as such was 1 ½ years old and the sister had the custody. In such circumstances, the Apex Court held that the sister of the mother of the minor had no authority under law by giving reference to Section 6 of the Hindu Minority and Guardianship Act and had given preference to the father.
18. In Yashita Sahu's case, directions were issued by the Apex Court in peculiar facts where the wife had run away with the minor from the jurisdiction of the US Court without the consent of the husband and there were also interim orders as such passed by the US Court for joint legal custody of the minor child. Resultantly directions were issued that the jurisdictional Court in USA would pass an order and directions were given to the husband to maintain the wife and personal 21 maintenance and for upkeep of the minor children, which is not the case herein. Reliance upon the judgment in Sandeep Kumar's case, supra is also misplaced since the child was with maternal grand parents and the mother had gone to UK and findings was recorded that she cannot come back and therefore, preference was given to the natural guardian the father since the travel document/ pass port had been seized during pending proceedings. In Amol Ramesh's case supra, the dispute inter se was between the grand parents of the minor and the father and the wife had died, in such circumstances, father was given preference. Similarly, in Anushree Goyal's case, mother was given custody over the paternal grand parents by entertaining petition under Habeas Corpus leaving rights as such of the parties to approach the Guardians Court. Therefore, the said judgment is also distinguishable. Similarly in Manju Singh's case the father was not given custody as the custody was with the mother and it was held that it cannot be said to be illegal custody.
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19. In Lajwanti's case referred to supra, this Court had preferred to give custody to the mother being natural guardian in preference to the father while giving liberty to initiate proceedings under the Guardians and Wards Act while dealing with the proceedings arising out of the order of the Sub Divisional Magistrate which was a contrasting claim filed by the grand parents and it had chosen not to interfere with the custody with the mother. In Master Samarjeet Singh's case, father's petition for Habeas Corpus was dismissed and the minor's custody was given to maternal uncle (Mama) and the matter was remanded to the learned Single Judge to look into the issue as to where the interest of the minor would lie. In Kulwant Singh's case the contest was between the father and the maternal uncle and in the case therein, rights were given as such to file appropriate application before the appropriate Court by directing handing over the custody to the father.
20. Similarly, in Saksham Pathak's case, the dispute was between the father and his in-laws having the custody of child and priority was given to the 23 parents and therefore, the said judgment also would not be applicable in the present facts and circumstances of the case.
21. Thus, it is the contention of the petitioner's counsel that the preference has to be given to the petitioner and respondent can prefer proceedings before the Guardian and Wards Act, which can be directed to decide the petition in a time bound manner while placing reliance on Section 6 of the Hindu Minority and Guardianship Act.
22. In contrast, learned Senior Counsel for the private respondents has rightly also stressed that the judgments cited are where other spouse was not living and respondent No. 5 not residing permanently in Doha, Qatar and having only a contractual job and therefore, by virtue of the present petition, petitioner cannot get custody of the minor children by himself being responsible for forcing the wife to seek gainful employment in conformity with her living standard earlier in her life time prior to her marriage and for securing the future of the children. It is pointed out that 24 in the absence of any female member in the immediate family of the petitioner as such the welfare of the children as such has to be kept in mind and has to be the sole consideration and therefore, once they are studying in a reputed school at Nahan, namely, Mind Tree School, this Court would not exercise its extra ordinary jurisdiction. It is pointed out that by virtue of interim orders, petitioner seeks to squeeze the custody while getting various interim orders due to his wife not being present all the times to oppose the same and by virtue of interim orders, he has got relief without any challenge raised to the order of the Courts below.
Reasoning:
23. A perusal of the paper book, the arguments addressed and the background as such would go on to show that apparently the first round of litigation was initiated by way of proceedings under the D.V Act, 2005 by respondent No. 5 in which the petitioner had taken the stand that he would pay Rs.12,000/-, which includes Rs.5,000/- as school fee and Rs. 7,000/- for other expenses in reference to their matrimonial dispute, 25 including the fact that he was facing financial problem due to Covid-19, being an Advocate and the fact that he was all alone and having undergone medical problems also. The reference was made to the change of School and the children having taken admission at Nahan at Mind Tree School and the fact of birthdays celebrations in various hotels even at the costs of stressing the couple and the introduction with the various cricket stars as such and helping the family of respondent No.5 in other legal proceedings and getting her brother a job as such and also getting his postings etc. were referred to in support of the fact that he was a loving father.
24. As noticed above, on 24.09.2022, maintenance of Rs.15,000/- was awarded in favour of the minor daughters and petitioner wife. In the said proceedings petitioner had filed an application under Section 23 of the D.V. Act, 2005 on 28.01.2023. Thereafter, he had filed an application under Section 12 of the Guardians and Wards Act for interim visitation rights to the minor children before the District Judge also on 28.11.2022 on the averment that respondent No. 5 26 had applied for a job with Qatar Airways and there was an apprehension that she would take the minor children to Qatar without his consent.
25. Around the time of filing of the present petition on 05.10.2023, before this Court, an order was passed on 07.10.2023 by the Chief Judicial Magistrate in the application filed by the petitioner under Section 21 of the Protection of Women from Domestic Violence Act,2005, wherein he was allowed to have visitation rights over his minor daughters on 2 nd and 4th Saturday of each month for two hours, i.e., 3.00 P.M. to 5.00. P.M. The relevant portion of the said order reads as under:
"In the instant case, the custody of children is already with their mother. The respondent i.e. father has sought merely visitation rights to see his minor daughters and in case the visitation rights are not given to the respondent / father, minor children would be deprived of their father's love and affection. The paramount consideration is the welfare of the child. The petitioner could not be forced to seek remedy either under Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. The Act is a self contained code. The endeavour of the Court should be to cut-short the litigation and to ensure that the child gets love and affection of both parents. The approach of the Court should be practical to workout 27 the modalities in a practical manner by evolving the process, whereby the child suffers minimum trauma. The interception of statute should be purposive.
Consequently, in view of analysis and discussion made here-in-above, the application is allowed and respondent/father is allowed to have visitation rights over his minor daughters on 2nd and 4th Saturday of each months for two hours viz. 3:00 p.m. to 5:00 p.m. Application stands disposed of. There is no order as to costs. It be registered and be tagged with the main case file after due registration"
26. As noticed above, it is the case as such of the petitioner that he was aware of the fact that his wife was seeking employment with Qatar Airways and it is also the argument of the learned Senior Counsel that only when he came to know on 06.09.2023, the present petition was filed though the interim application had been filed before the Courts below.
27. Surprisingly, the petitioner chose not to file petition under Section 7 of the Guardian and Wards Act, for appointing him as guardian, as such for custody of the children though he was apprehending the children to be taken away by the mother. It is in such circumstances, the co-ordinate Bench as such had directed that the inquiry be made as to whether the 28 mother is residing outside and on 26.10.2023 on getting the information as such that children were residing with his mother, production of the children was ordered on 09.10.2023. Direction was thus issued that he be permitted to meet the minor children on every day between 3.00 P.M. to 7.00 P.M. and on holidays he was permitted to take the children out from 9.00 A.M. to 5.00 P.M., after observing that the interaction of the minor children had shown that the children need to be retained with respondent No. 9 Nani till next of hearing. Mediation as such had failed. The directions were issued to keep the minor daughters with the petitioner on 05.07.24 till 14.07.2024 and the earlier order dated 13.10.2023 was modified while noting that the mother of the minor children was abroad.
28. Application for modification of the order was disposed of with direction that the case be heard on merits and on 02.04.2025 an order was passed as such whereby petitioner was allowed to keep the minor daughters during the April vacation from 03.04.2025 to 29 11.4.2025. Eventually arguments were heard and judgment was reserved on 10.04.2025.
29. It is a matter of record that divorce petition under Section 13 of the Hindu Marriage Act, has also been filed as such before the District Judge at Nahan in July, 2024. It is as such in this contested background that we propose to dispose of the present petition giving liberty to the petitioner to approach the Guardian Court as such for his rights for the custody of the minor children as we are of the considered opinion that the minor children are not in unlawful custody of private respondents No. 6 to 9 and custody, if any, as such is only for the purpose of their welfare as the respondent- wife was in earlier employment with Qatar Airways. This fact would be clear from the pleadings of the parties and the fact that the Certificate dated 07.01.2015 (Annexure R-2) given by the said employer would go on to show that she had worked as Cabin attendant from 11.12.2010 to 16.01.2015 in the Cabin Crew flying department of Qatar Airways.
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30. It is not disputed that the parties got married on 10.11.2013 and apparently even she worked after the marriage with the said Airways. It is the specific case of respondent No.5 wife that she has taken the employment on 15.03.2023 (Annexure R-3) on probation basis on contract and as mentioned it is for the purpose of maintaining herself on account of the fact that she needs subsistence for her children. It is also admitted case of the parties and even the case of the petitioner that a sum of Rs. 15,000/- which has been awarded as maintenance is not being paid on regular basis and the petitioner is yet to clear the various arrears when he had filed the present petition.
31. In the Rejoinder (sic replication) filed by the petitioner, opportunity for looking for a job outside India has been questioned and that the children were living a life of orphan's and it has been mentioned that relief was sought only qua his visitation rights subsequently on account of the fact that respondents No. 5 had left the minor children and shifted to Qatar and got a job at Qatar, and he had then filed the present petition. 31 Averments have been made that she lives in 330 days abroad and comes for vacation to India. It is highlighted that the grand parents had sent eviction notice to respondent No. 5 and he has visited Nahan on every weekend to perform his duties and it is denied that he has failed to comply with the order of maintenance. But there is no reference as such made that he has cleared all the arrears. In such circumstance, we are of the considered opinion that the averment that he has paid an amount of Rs.3,25,000 to respondent No. 5 till date would not as such show the intention of the petitioner to support his children and his wife in the manner which would be expected of a loving father.
32. It is in such contrasting circumstances we come to the conclusion that the petitioner cannot as such take advantage of not maintaining his minor children by paying maintenance on regular basis and also by pleading that he is just earning Rs.20,000/- per month and denying a reasonable amount of maintenance to the wife and the minor children in this point of time keeping in view the background as such 32 projected by him. Similarly, it is not disputed that there is no female member in the house and even in the replication it has been mentioned that a female helper will come home twice a day who will take care of home chores, since both the children can be admitted in a School near to the High Court and post lunch, petitioner and his daughters will go back to home where he has an office-cum-residence. Therefore, in such circumstances, it cannot be said that the welfare of the children would lie prima facie in the hands of the petitioner.
33. It would be a matter of evidence as such as how much he is earning and is in a position to offset the earnings of his wife and therefore, if the wife had taken employment with the Qatar Airways as such it cannot be held that she has abandoned the children. The petitioner cannot be allowed to take advantage of his own action as such by not paying a minimum which is expected from him and then expecting his wife as such to be at his mercy for Rs.15,000/-. Thus, she has opted for an employment with her earlier employer which would not 33 mean that she had abandoned her minor children by keeping them with her mother.
34. Reliance can also be placed on the judgment of Apex Court in this context that for a Habeas Corpus petition for the transfer of custody of the minor children from one parent to other, paramount consideration would as such be welfare of the children. The availability of the petitioner, who is practicing lawyer, in the absence of any family members in the house in contrast to the joint family arrangement at Nahan with the grandmother and the other daughter who is married and the children have cousins and other siblings to interact with them,specially being girl children. We are of the considered opinion that filing the petition for habeas corpus in the present facts and circumstances would not be correct methodology to take the custody of the children as it cannot be termed as unlawful custody as such.
35. In similar circumstances, the Apex Court in Sayed Saleemuddin versus Dr. Rukshsana and others (2001) 5 SCC 247 while taking consideration of 34 the judgment in Gohar Begum's case supra had held that the inter se custody between the parents be not interfered by way of habeas corpus and the principal consideration for the Court is to ascertain whether the custody of the children is unlawful or illegal. In the present peculiar facts and circumstances, in the present situation and the need of the wife to sustain herself, we are of the considered opinion that the temporary custody of the children with the maternal grandmother and close relatives of wife/massi and sister and her husband etc. cannot be said to be as such as abdication of responsibility by respondent No. 5.
36. In Nithya Anand Raghavan versus State (NCT of Delhi) and another, (2017) 8 SCC 454, a 3- Judge Bench of Hon'ble Supreme Court has mandated that plea of custody of a child claimable by parties is a question to be strictly governed by the Courts by the provisions of the Guardians and Wards Act, by allowing the appeal of the mother and setting aside the order of the Delhi High Court passed in habeas corpus proceedings, in the following terms:-
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"63. As regards the fourth factor noted in clause
(d), we respectfully disagree with the same. The first part gives weightage to the "first strike"
principle. As noted earlier, it is not relevant as to which party first approached the Court or so to say "first strike" referred to in paragraph 52 of the judgment. Even the analogy given in paragraph 54 regarding extrapolating that principle to the Courts in India, if an order is passed by the Indian Court is inapposite. For, the Indian Courts are strictly governed by the provisions of the Guardians and Wards Act, 1890, as applicable to the issue of custody of the minor within its jurisdiction."
37. Even in Tejasvi Gaud's case (supra), the Apex Court held that a writ of habeas corpus is not liable to be issued in ordinary circumstances and is only an extraordinary remedy and is prerogative writ where it is proved that detention of minor child by a parent or others was illegal and without authority of law. The relevant portion of the said judgment reads as under:
"18.Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. 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 by a person who is not entitled to his legal 36 custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law."
37(i). Negativating the plea for custody of a child, by way of Habeas Corpus Petition, the Hon'ble Supreme Court in Writ Petition (s) (Criminal) No(s).318 of 2020, Jose Antonio Zalba Diez Del Corral Alias Jose Antonio Zalba versus The State of West Bengal & Ors., decided on 28.07.2021 has mandated statutory remedy available was under the Guardians and Wards Act, in view of the fact that question regarding welfare and well-being of a child can be considered in accor- dance with law, after appreciation of evidence, which may be led by the parties and not in a Habeas Corpus Petition, in the following terms:-
"In the present case, the admitted facts being that the mother has the custody of two minor children, for which the petitioner(father) has already filed a petition under Section 12 of the Act, which is pending consideration; and the custody of the children with the mother, who is a natural guardian, cannot be said to be il- legal and, thus, the petition for habeas corpus would not be maintainable and that too directly under Article 32 of the Constitution of India. While saying so, we are not going into the question whether the maintenance amount directed by the Trial Court in the proceedings under the Protection of Women from Domestic Violence 37 Act,2005 has been paid or not. 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 this Court to exercise its jurisdiction under Article 32 of the Constitution of India. 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, after appreciation of the evidence, which may be led by the parties.
Accordingly, we dismiss this writ petition on the ground of maintainability. However, we request the 10th Additional District Judge, Alipore, Kolkata to hear and decide the pending case No. 88 of 2017 as expeditiously as possible, and in accordance with law, preferably within six months from the filing of a certified copy of this order, along with an application for expeditious disposal of the pending case."
37(ii). In Rajeswari Chandrasekar Ganesh versus State of Tamil Nadu and others, (2023) 12 SCC 472, the Hon'ble Supreme Court has mandated that in order to enable the parties to assert the claim for custody when the claim for custody is disputed by the parties then, such a claim cannot be gone into in Habeas Corpus Petition under Article 226 of the Constitution of India and such a right can be claimed on the basis of pleadings and evidence adduced before the competent Court under the Guardians and Wards Act, in the following terms:-
"80. A mere reading of the provisions of the two Acts referred to above makes it obvious that the welfare of the minor predominates to such an 38 extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the court.
86. The exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right.
99. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will prob- ably be advanced. In a habeas corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child.
116. As observed by this Court in Vivek Singh v. Romani Singh, in cases of this nature, where a child feels tormented because of the strained relations between her parents and ideally needs the company of both of them, it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. However, even in such a dilemma, the paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts.39
37(iii). While dealing with the claim for custody of a female child, by way of a Habeas Corpus Petition, the Hon'ble Supreme Court outlined in Somprabha Rana and others Versus State of Madhya Pradesh and others, (2024) 9 SCC 382 that the substantive proceedings can be the appropriate Court to decide the issue of custody and guardianship under the Guardians and Wards Act, where the Court concerned interacts with the child, afford access and deal with the custody on the basis of evidence adduced by the parties. The dispute was custody of the girl child and the contest was between the maternal side and the paternal side after the mother had died an unnatural death. The relevant part read as under:-
"1. "This appeal arises from a very unfortunate dispute about the custody of a female child (for short, 'the child') whose present age is two years and seven months. The mother of the child unfortunately died an unnatural death on 27 th December 2022. It is alleged that the death of the mother was by hanging. The 4th respondent is the father of the child. The 2nd and 3rd respondents are the paternal grandparents of the child. The 5th respondent is the sister-in-law of the 4th respondent (his brother's wife).
2 to 11 xx xxx xxx xxxx
12. The High Court was dealing with the custody of the child, whose age at that time was one year and five months. The child had been in the custody 40 of the appellants from the tender age of 11 months after her mother died. The child, at present, has been in the custody of the appellants for more than one and a half years. When the Court deals with the issue of Habeas Corpus regarding a minor, the Court cannot treat the child as a movable property and transfer custody without even considering the impact of the disturbance of the custody on the child. Such issues cannot be decided mechanically. The Court has to act based on humanitarian considerations. After all, the Court cannot ignore the doctrine of parens patriae. Learned senior counsel appearing for the 2nd to 5th respondents submitted that if the Court is of the view that there is no proper consideration by the High Court, the order of remand may be passed to the High Court.
13. We believe that considering the peculiar facts of the case and the child's tender age, this is not a case where custody of the child can be disturbed in a petition under Article 226 of the Constitution of India. Only in substantive proceedings under the GW Act can the appropriate Court decide the issue of the child custody and guardianship. Regular Civil/Family Court dealing with child custody cases is in an advantageous position. The Court can frequently interact with the child. Practically, all Family Courts have a child centre/ play area. A child can be brought to the play centre, where the judicial officer can interact with the child. Access can be given to the parties to meet the child at the same place. Moreover, the Court dealing with custody matters can record evidence. The Court can appoint experts to make the psychological assessment of the child. If an access is required to be given to one of the parties to meet the child, the Civil Court or Family Court is in a better position to monitor the same.
14. Coming to the facts of the case, at this stage, it will be very difficult to decide whether the welfare of the minor child requires custody of the 41 maternal aunts to be disturbed. The child has not seen the father and grandparents for over a year. At the tender age of two years and seven months, if custody of the child is immediately transferred to the father and grandparents, the child will become miserable as the child has not met them for a considerably long time. Moreover, even the contesting respondents have not alleged that the child is not being looked after properly by the appellants. Whether the father is entitled to custody or not is a matter to be decided by a competent court, but surely, even assuming that the father is not entitled to custody, at this stage, he is entitled to have access to meet the child. It is in the child's best interest that she knows her father and grandparents and remains with them for some time to begin with.
15. We repeatedly asked the learned senior counsel representing the husband whether the husband was willing to apply for custody. However, he has shown unwillingness to apply for custody. The husband is a member of the Bar practising at the Indore Bench of the Madhya Pradesh High Court. Even he was personally present during the hearing. However, the learned senior counsel appearing for the appellants stated that the appellants or any of them would apply for claiming declaration as a guardian and retaining the custody. The earlier application filed by the appellants has been withdrawn. However, orders of the Court regarding custody are never final. Therefore, we propose to permit the appellants or any of them to apply for custody to the Regular Court under the GW Act. Even in the petition filed by the appellants, the competent Court can permit the father to take over the custody if it is satisfied that the welfare of the minor requires custody to be granted to the father.
17.1 The impugned judgment and order dated 23-6-2023 is set aside, and Writ Petition No. 11004 of 2023 is hereby dismissed. We make it clear that the Writ Petition is dismissed not on merits but on the ground that on facts, the discretion could not have been exercised 42 under Article 226 of the Constitution of India to disturb the custody of the appellants at this stage;
17.5 As assured to the Court, the appellants or some of them shall file a petition seeking a declaration of guardianship and permanent custody of the child under the provisions of the GW Act before the competent Court within a maximum period of two months from today;"
37(iv). In Nirmala's case (supra) the Hon'ble Supreme Court has outlined that the extraordinary jurisdiction under Article 226 of the Constitution of India,by way of a Habeas Corpus Petition would not be maintainable where detailed enquiry is required under the Guardians and Wards Act. The establishment of the factum of custody being illegal or without authority of law and the fact-situation where paramount interest of welfare of a minor child could be served in facts only in the process under the provisions of Guardians and Wards Act, as per the following observations:-
"24. This Court in Tejaswini Gaud case further held that in child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It has been held that 43 there are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. It has further been held that what is important is the welfare of the child. It has been further held that where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court.
30. We are of the considered view that in the peculiar facts and circumstances of the case, the High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India. Since a detailed enquiry including the welfare of the minor child and his preference would have been involved, such an exercise could be done only in a proceeding under the provisions of the Guardians and Wards Act, 1890.
33. We therefore find that the High Court was not justified in entertaining the petition under Article 226 of the Constitution of India. The impugned judgment and order of the Punjab and Haryana dated 23-8-2022 in Kulwant Singh v. State of Haryana is quashed and set aside. The writ petition filed by the respondent- father is dismissed.
35. In the light of the aforesaid, we direct that in the event the respondent-father files an application under the provisions of the Guardians and Wards Act, 1890, the competent Court shall decide the same 44 expeditiously. We further direct that in the event such an application is made, an order at least with regard to visitation rights would be passed within a period of 4 weeks from the making of such an application."
38. Resultantly, we decline to exercise our extra ordinary jurisdiction to grant habeas corpus and leave the parties to seek their rights for custody of children in accordance with law before the Guardian Court. It shall be open for the petitioner as such to file appropriate petition seeking necessary relief along with application for visiting rights. On filing of such petition, pleadings shall be completed expeditiously within a period of six weeks by respondents No. 5 wife and thereafter the Courts will examine the issue of visiting rights.
39. Since the coordinate Bench vide order dated 13.10.2023 has permitted the petitioner to meet minor children on everyday between 3 P.M. to 7 P.M. and on holidays to take children out from 9 A.M to 5 P.M. and thereafter also allowed him to keep custody of the minor children during April, vacation. We are of the considered opinion that till interim orders are passed by the Guardian Court on filing of the petition, petitioner shall be entitled to visit his daughters on regular basis on every Sunday 45 from 10 A.M. to 5 P.M. and on 2nd and 4th Saturday he is entitled to one overnight custody.
40. Similarly, during June vacation in the High Court, the petitioner would be entitled to keep the children for a period of ten days starting from 7 th June, 2025 till 15th June, 2025 which is summer break for this Court. The visiting rights are only interim till the Guardian Court decides the application.
41. The petition is accordingly disposed of along with pending miscellaneous application (s) if any.
(G.S. Sandhawalia) Chief Justice (Ranjan Sharma May 09, 2025. Judge (cm Thakur)