Punjab-Haryana High Court
Smt. Smali Bagga vs State Of Punjab And Anr. on 22 March, 1996
Equivalent citations: 1997CRILJ45
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. Smt. Smali Bagga has filed this petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of habeas corpus for directing her husband-respondent No. 2 to produce and to handover the custody of her two minor sons, namely, Pratyush (born on 24-11 -1988) and Himen (Born on 16-9-1990).
2. The petitioner was married to respondent No. 2 on 12-10-1987 at Jalandhar. Out of this wedlock, two children namely, Pratyush and Himen were born on 24-11-1988 and 16-9-1990. It is alleged in the petition that the parents of respondent No. 2 were not happy with the dowry given in the marriage and at the instance of her parents, respondent No. 2 used to taunt and harass the petitioner. It is also alleged that even with the gifts given at the time of the birth of these two children, neither the respondent nor his parents were satisfied or happly. It has been alleged that she has been treated with cruelty throughout and ultimately on 14-8-1994 she was thrown out of her matrimonial house after getting her signatures on blank papers and the said two children were kept in illegal custody by respondent No. 2. It has been alleged that father of respondent No. 2 has already died on 24-1 -1995 and his mother is aged about 70 years and is unable to look after the said children and even otherwise the second child, namely. Himen is less than 5 years of age. It has been admitted that a petition under Section 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956, has been filed for the custody of the children and is pending in the Court, but it is alleged that the same would take a long period and would defeat the very objective of the welfare of the children.
3. On a notice given to respondent No. 2, it has been stated in his reply that the present petition is not maintainable in as much as the children are not in illegal custody since respondent No. 2 is the natural and legal guardian of his minor sons, and that the petitioner has already filed a petition under Section 25 of the Guardians and Wards Act claiming the custody of the said children in a Court at Phagwara which is pending for disposal. The allegations regarding cruelty on account of demand of dowry or harassment for want of gifts at the time of the birth of the two children or otherwise have been denied. It has been further stated that the petitioner has no independent source of income of her own and in the proceedings filed by respondent No. 2 for a decree of divorce, the petitioner has been granted maintenance on the ground, that the admitted position is that the petitioner is not having any independent source of income and is totally dependent upon the respondent and as such she is not a fit person to take the custody of the said children as she cannot afford to give them proper and higher education nor can maintain them in a proper atmosphere. It has been explained that the mother of this respondent is not suffering from any disease as alleged, that the two children are being looked after by respondent No. 2 and his mother to the best of their ability and capability and every care is taken for the welfare of these children. It has been further stated that both the children are being imparted very good education and they are studying in second class and K. G, Class respectively.
4. I have heard the counsel for the parties and have perused the record placed before me.
5. Shri R.S. Sihota, Advocate, learned counsel for the petitioner, has argued that the remedy by way of a writ in the nature of haveas corpus is quite independent of the statutory remedy available under the Guardians and Wards act and the mere fact that the petitioner has filed a petition claiming the custody of these minor children in the Guardians Court is no bar in filing the present petition. In support of this plea the learned counsel has placed reliance upon three decision of the apex Court rendered in Rosy Jacob v. Jacob A. Chakramakkal AIR 1973 SC 2090 Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka AIR 1982 SC 1276, and Mrs. Elizbeth Dinshaw v. Arvand M. Dinshaw AIR 1987 S.C. 3, and a Division Bench judgment of the Himachal Pradesh High Court rendered in Kamla Devi v. State of Himachal Pradesh AIR 1987 Him. Pra 34. It has also been pointed out by the learned counsel that the second child, namely. Himan was below the age of 5 years on the date of the filing of the present petition and in view of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, the petitioner is entitled to his custody. It has also been argued by the learned counsel that the petitioner being the mother of the two minor children, is in a better position to look after their welfare.
6. On the other hand Shri R.L. Batta, Senior Advocate, while appearing on behalf of respondent No. 2, has argued that the paramount consideration regarding the custody of the minor children is their welfare which is a question of fact to be decided after taking evidence and that the same cannot be decided on facts unless entire factual position is admitted. It has been further argued by the learned counsel that the apex Court itself refused to decide the question of the custody of a minor in a habeas corpus petition without there being any evidence on the record. Reference has been made to Dr. Mrs. Veena Kapoor v. Varindar Kumar Kapoor AIR 1982 S.C. 792 : 1982 Cri LJ. 580. The learned counsel has also relied upon a judgment of this Court rendered in Kiran Rani v. Krishan Kumar (1994 (2) 107 Pun.L.R. 721. The learned counsel has also argued that since the petitioner has already approached a proper Court for proper relief under the relevant provisions of the Guardians & Wards Act, read with the provisions of Hindu Minority and Guardianship Act, this Court in exercise of its extra-ordinary jurisdiction in the nature of habeas corpus should not interfere especially in view of the fact that the petitioner is unable to maintain even herself what to speak of maintaining and looking after the welfare of the two minor children. It has also been argued that today both the children are above the age of 5 years and the rule of 'tender age' would not be applicable to the present case.
7. I have given my careful thought to the respective arguments advanced at the Bar.
8. What emerges from a perusal of the various judgments rendered by the apex Court and cited by the learned counsel for the parties at the Bar-can be summed up in the words of the Himachal Pradesh High Court in the case of Kamla devi AIR 1987 Him. Pra. 34 (supra) in the following words:-
The writ of Habeas Corpus can be pressed into service for granting the custody of a child to the deserving spouse. The primary "object of a habeas corpus petition, as applied to infants, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceedings 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 Parans Patiae. has in promoting the best interests of the child. In such cases due weight must be given to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings.
Thus, it is clear that in matters concerning the custody of minor children the paramount consideration is welfare of minor and not the legal right of this or that particular party. Apart from the natural and selfless affection, normally expected from the parents of the children, the fitness of either of the two to keep the custody of the minor children, is to be considered, determined and weighed predominantly in terms of the welfare of the minor children in the context of all the relevant circumstances i.e. as to which of the two spouses can properly look after the minor's health, maintenance, education and day-today affairs for their proper growth' Admittedly, today both the children are above the age of 5 years. Therefore, "tender age" rule is not attracted. The paramount consideration, thus, remains regarding the welfare of these two minor children. In Dr. Mrs. Veena Kapoor's case, 1982 Cri LJ 580 (SC) a petition for habeas corpus under Article 226 of the Constitution of India filed by the wife claiming the custody of 1 1/2 years old child from her husband, was dismissed by this Court with the observations that no such petition was maintainable since the custody of the children was not illegal. In Special Leave Petition, apex Court while reversing the order of this Court, observed as under:- (Para 3) It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up, the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh.
Similarly, in Kiran Rani's case 1994 (2) 107 Pun LR 721 (supra) a Single Bench of this Court had observed that where lies the ultimate interest of the minor is a question which would be decided by this Court as that necessarily requires recording of evidence. Under the circumstances, the parties thereto had agreed to file a petition under Section 25 of the Guardians & Wards Act read with the provisions of the Hindu Minority and Guardianship Act, 1956.
9. From a perusal of the various precedents quoted and discussed above, it follows that the paramount consideration for handing over custody of a minor child to either of the two spouses is the welfare of the said minor and that the question of the welfare of the minor can be decided only after taking evidence if the entire position is not admitted between the parties. In the present case, admittedly the petitioner has already filed a petition under Section 25 of the Guardians & Wards Act, 1890 read with the relevant provisions of the Hindu Minority and Guardianship Act, 1956, which is pending in a Court at Phagwara. In those proceedings the question as to where lies the welfare of the two minor children can be effectually decided. The only fear of the-petitioner is that a civil matter takes a long course for its final disposal. To avoid this delay, proper direction can be given by this Court.
10. For the reasons mentioned above, I do not find any justification for the issuance of any writ in the nature of habeas corpus in the facts and circumstances of this case. Consequently, the petition is hereby dismissed. However, the Guardian Court at Phagwara, before whom the petition claiming the custody of these minor children is pending shall decide that petition within a period of 3 months from the date of the receipt/production of a copy of this Court.