Vinayak Goyal v. Prem Prakash Goyal — 1981 DIGILAW 454 (ALL)

Judgment K.C. Agrawal, J. 1. THIS is a petition under Article 226 of the Constitution filed by Vinayak Goyal through his mother Smt. Manju Goyal, wife of Sudhakar Goyal. Smt. Manju Goyal was married in 1971 to Sudhakar Goyal, son of respondents Nos. 1 and 7. Prem Prakash Goyal and Smt. Sheela Rani Goyal. One son, the petitioner Vinayak Goyal, and two daughters were born to them. Sudhakar Goyal died in February 1979. At the time of his death, Sudhakar Goyal was posted at Uttar Kashi as Executive Engineer. After his death, Smt. Manju Goyal along with the petitioner and her two daughters returned to respondents 1 and 2, her in-laws, at Ghaziabad. Since then, she had been living along with her children with them. 2. THE present petition under Article 226 of the Constitution for a Writ of Habeas Corpus commanding the respondents to produce the petitioner Vinayak Goyal and to direct them to hand over his custody to Smt. Manju Goyal was filed on 28-4-1981, on the allegations that Smt. Manju Goyal, the mother of the petitioner, had to leave the respondents' house on account of the mental torture meted out to her by Respondents 1 and 2. THE allegation made further was that the petitioner was forcibly held back and not allowed to accompany his mother on 20-4-1981. THE petitioner claimed that being the mother, she was the natural guardian of her son Vinayak Goyal, and that she was entitled to his custody. Holding back of the petitioner from his mother Smt. Manju Goyal amounted to illegal detention and, as such, she was entitled to a direction being issued to the respondents to hand over the petitioner to her. Pursuant to the order issued on 29-4-1981, directing the respondents to produce the petitioner in the Court on 14-5-1981, the respondents produced him in the Court and also filed a counter-affidavit controverting the allegations made in the writ petition. This was followed by filing a supplementary counter-affidavit by the respondents, which was replied by Smt. Manju Goyal. 3. THE submission advanced on behalf of the petitioner was that Smt. Manju Goyal was the natural guardian of the petitioner, who was aged about 8 years and, as such, she was entitled to his custody. This was followed by filing a supplementary counter-affidavit by the respondents, which was replied by Smt. Manju Goyal. 3. THE submission advanced on behalf of the petitioner was that Smt. Manju Goyal was the natural guardian of the petitioner, who was aged about 8 years and, as such, she was entitled to his custody. THE petitioner's contention was that the respondents had illeglly withheld the petitioner against the wishes of his guardian Smt. Manju Goyal and, therefore, she was entitled to his custody. THE case argued on behalf of the petitioner was that his unlawful detention from Smt. Manju Goyal, who was legally entitled to his custody, was to be regarded as equivalent to unlawful imprisonment of the minor. 4. SECTION 6 of the Hindu Minority and Guardianship Act lays down the list of persons who can be the natural guardian of a Hindu minor. Clause (a) of SECTION 6 provides that in the case of a boy or an unmarried girl- father, and after him, the mother. In the instant case, the father is, admittedly, dead. That being so, the mother Smt. Manju Goyal is the natural guardian of the petitioner. Admittedly, respondents 1 and 2, who are the grand father and mother of the petitioner, have his custody. They are, however, not the guardian, and, as such, are not entitled to retain him against the wishes of his mother Smt. Manju Goyal, Sri R. P. Goyal, learned counsel appearing for the respondents, however, raised several questions in support of the respondents' case for defeating this petition of habeas corpus. The first argument was that the petition had not been filed by Smt. Manju Goyal on her own but had been preferred in this Court at the instigation of her relations. Counsel contended that the petition was the result of bad relationship between the father and father-in-law of Smt. Manju Goyal and the same had not been filed for vindication of any right by Smt. Manju Goyal herself, and, therefore, the same was liable to be dismissed on title ground of being not a bona fide one. The submission does not impress us. Smt. Manju Goyal is a Graduate, she can be presumed to know the consequences of her act. She had filed the petition in person on 29th April, 1981, and had, thereafter, appeared before us on 14th and 15th May, 1981. The submission does not impress us. Smt. Manju Goyal is a Graduate, she can be presumed to know the consequences of her act. She had filed the petition in person on 29th April, 1981, and had, thereafter, appeared before us on 14th and 15th May, 1981. After having examined her in the Court, we are of the firm opinion that the petition had been filed by her for vindication of her right and not at the instance of her relations. In this connection, counsel invited our attention to various allegations made in the counter and supplementary counter affidavits dealing with the relationship of the petitioner's maternal grand father and paternal grand father. As we are of opinion that the relationship between them has no bearing on the controversy involved in the present petition, we consider it unnecessary to refer to them. 5. THE next submission made by the learned counsel for the respondents was that the proper remedy of Smt. Manju Goyal lay in filing an application under the Guardians and Wards Act for the custody of the child and the present petition being not an appropriate remedy, was liable to be rejected. Counsel contended that as the petitioner was living with his grand father and mother, he could not be said to have been illegally and unlawfully detained, which could invoke Article 226 of the Constitution justifying this Court to issue a Writ of Habeas Corpus directing the respondents to hand over the custody of the petitioner to Smt. Manju Goyal He urged that respondents Nos. 1 and 2 were entitled to keep the petitioner with them and in the absence of proof of illegal detention of the petitioner, the petition was liable to be rejected. THE argument made by the respondents' counsel is devoid of substance. 6. IT may be true that Smt. Manju Goyal could move an application under the Guardians and Wards Act for the custody of the petitioner, but the present petition could not be dismissed! simply on the ground of another remedy which may be open to her under the law. A writ of habeas corpus is available as a remedy in all cases of deprivation of personal liberty. A detention is said to be illegal which is incapable of legal justification. simply on the ground of another remedy which may be open to her under the law. A writ of habeas corpus is available as a remedy in all cases of deprivation of personal liberty. A detention is said to be illegal which is incapable of legal justification. In such circumstances, the person, who is entitled to the custody of the child, would have a right to move the Court or his body to be produced for being handed over. In Halsbury's laws of England, Volume 11, Fourth Edition, page 779, Article 1469, the law laid down in this connection is : "A parent, guardian, or other person who is legally entitled to the custody of a minor, can regain that custody when wrongfully deprived of it by means of writ of habeas corpus. For the purpose of the issue of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. In applying for the writ, it is, therefore, unnecessary to allege that any restraint or force is being used towards the minor by the person in whose custody and control he is for the time being." In (1836) 4 A and E, 624, at page 64B, Coleridge, J. said : "A habeas corpus proceeds on the fact of an illegal restraint.......,............. But, when the person is too young to [have a choice, we must refer to legal principles to see who is entitled to the custody, because the law presumes that where the legal custody is no restraint exists and where the child is in the hands of a third the that presumption is in favour of the father." In S.Rama Iyer v. K. V. Natraja Iyer, AIR 1948 Madras 294, the High Court was called upon to deal with an application under Section 491 of the Code of Criminal Procedure for a direction that the minor, who was 13 years of age, be given to his father. The learned Judges held that a minor's opinion is not entitled to any weight when he is incapable of forming any opinion, and that his detention, even if he remains in the custody of his maternal grand father of his free-will, must be deemed to be illegal as against a person who is better entitled in law to have his custody, i. e., his father, and who is desirous to take the minor in his custody. 7. FROM what we have said above, it follows that in the case of a minor his detention would be treated as illegal and unlawful if he is detained by any person against the wishes of the guardian who is entitled in law to have his custody. 8. FOR the maintainability of the writ of habeas corpus, reference may be made to a decision of the Supreme Court in Gohar Begam v. Suggi Begam, AIR 1960 SC 93 which was a case under Section 491 of the '"ode of Criminal Procedure After extracting a passage from the decision in R V, Greenhill, (1836) 4 Ad and El, 624 at page 640, and also after referring to Halsbury's Laws of England, Vol. 9, Article 1201, at page 702, where there is the following statement : "Where, as frequently occurs iia the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be enquired into on the return to a writ of habeas corpus and the custody awarded to the proper person." The Supreme Court observed as follows : "Section 491 is expressly concerned with direction of the nature of a habeas corpus. The English principles applicable to the issue of a writ of habeas corpus, therefore, apply here. In fact, the Courts in our country have always exercised the power to direct under Section 491 in a fit case that the custody of an infant be delivered to the applicant: Sree Rama Iyer v. Natraja Iyer, AIR 1948 Mad. page 294. Zara Bibi v. Abdul Razzak, (1910) 12 Bombay LR 891. Subbas Wormi Goundan v. Kanakshl Ammal, ILR 53 Mad. 72. page 294. Zara Bibi v. Abdul Razzak, (1910) 12 Bombay LR 891. Subbas Wormi Goundan v. Kanakshl Ammal, ILR 53 Mad. 72. If the Courts do not have this power, the remedy under Section 491 would in the case of infants often become infructuous." For the reasons given above, it appears to us that the respondents cannot be heard to say that where there is a remedy provided by law, that remedy should not be resorted to merely because there is an alternative remedy under the Guardians and Wards Act. Bacon V. C. in (1879) 10 Chancery Division, 155, said, when he had to deal with a similar argument, that: "It did not matter how many remedies were open to the person-there might be 5000- he was entitled to avail himself of any one of them and that what had to be shown was that the remedy that he did avail himself of was not open to him.'' 9. IN Dushyant Somal v. Sushma Somal, 1981 (2) SCO 277, an application under Article 226 of the Constitution had been filed before the Delhi High Court by the wife as against the husband for custody of the child. The application had been allowed by the Delhi High Court. Against this judgment, appeal was taken to the Supreme Court. It was submitted that the wife should have sought her remedy under the Guardians and Wards Act and not by moving an application under Article 226 of the Constitution. The Supreme Court repelled the argument and held that the writ of habeas corpus had been rightly issued. To us, it appears that the law is well settled that the writ of habeas corpus would be maintainable for the custody of a child despite the alternative remedy of filing an application under the Guardians and Wards Act. 10. WE have noted above that Smt. Manju Goyal was the natural guardian of the petitioner Vinayak Goyal. The petitioner had been held back by respondents 1 and 2 against her wishes. Consequently, the holding back of the petitioner by respondents 1 and 2 amounted to illegal and unlawful detention and, as such, she was entitled to a writ of habeas corpus. The petitioner had been held back by respondents 1 and 2 against her wishes. Consequently, the holding back of the petitioner by respondents 1 and 2 amounted to illegal and unlawful detention and, as such, she was entitled to a writ of habeas corpus. The next submission made by the learned counsel for the respondents was that for making an order of custody, the welfare of the minor was a paramount consideration and even if Smt. Manju Goyal was the mother entitled to keep Vinayak Goyal, her son, but on the facts and in the circumstances of the present case, the welfare of the minor lay in remaining with the grand father and mother, i.e., respondents Nos. 1 and 2, the latter should not be asked to hand over the petitioner to Smt. Manju Goyal. For the proposition advanced, the learned counsel referred to a decision of the Kerala High Court in Marggarte v. Chacko, AIR 1970 Kerala page 1 in which the Full Bench took the view that in issuing the writ of habeas corpus for the custody of infants the jurisdiction exercised by the Court in deciding whether the custody should be entrusted with one or other of the contesting parties depends not on the legal right of one of those parties to the custody of the child, but as to whether in the best interest and welfare of the child the custody sould be entrusted with one or the other. 11. THE expression "welfare" has to be read in the largest possible sense as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do In Queen v. Gyngull, (1893) 92?QBD 232 at page 248, Lord Justice Lindley observed ; "THE dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money or by physical comfort only, the word must be taken in its widest sense. THE moral and religious welfare of the child must be considered aswell as his physical well being. Nor can ties of affection be disregarded." 12. IN the instant case, we have examined as to what order should be passed for securing the welfare of the minor ? THE moral and religious welfare of the child must be considered aswell as his physical well being. Nor can ties of affection be disregarded." 12. IN the instant case, we have examined as to what order should be passed for securing the welfare of the minor ? and with whom will he be happy ? On the facts, we are satisfied that there is nothing to doubt that well being, education and happiness of the petitioner lies in selecting his mother Smt. Manju Goyal over respondents 1 and 2. Great emphasis was laid by the (earned counsel for the respondents that the petitioner was receiving education at a school in Ghaziabad which had been arranged for by respondents 1 and 2 and that Smt. Manju Goyal could not arrange education for the boy of a similar type, We have no reason to accept this argument. Admittedly, Smt. Manju Goyal has got money after the death of her husband. She can afford for the proper education of her son. We have noted above that the petitioner is 8 years of age. Mother's protection for such a child is indispensable. We cannot think of any other protection which will be equal in measure and substance to that of the mother in such circumstances. 13. COUNSEL for the respondents took us through the petition and urged that as on the date of filing of the petition, the petitioner was not in unlawful custody as Smt, Manju Goyal had left him of her own, the petition was liable to be rejected. Nothing more is required to be said on this point excepting pointing out that the respondents 1 and 2, admittedly, are not willing to hand over the petitioner to Smt. Manju Goyal. The petitioner's custody with respondents 1 and 2 is, therefore, against the wishes of his mother Smt. Manju Goyal. This is illegal and, therefore, it calls for an interference. Mother's indefeasible right to custody of her minor cannot be defeated on that ground. It may be true that respondents I and 2 have affection for the petitioner, but we are not concerned with their feelings. 14. WITH the help of the supplementary counter-affidavit, counsel for the respondents contended that there was serious apprehension of Smt. Manju Goyal remarrying. Mother's indefeasible right to custody of her minor cannot be defeated on that ground. It may be true that respondents I and 2 have affection for the petitioner, but we are not concerned with their feelings. 14. WITH the help of the supplementary counter-affidavit, counsel for the respondents contended that there was serious apprehension of Smt. Manju Goyal remarrying. Counsel urged that as she was likely to remarry at an early date, it would not be proper to make an order for the delivery of the child to her. The averments of the supplementary counter-affidavit have been refuted in the supplementary rejoinder-affidavit by Smt. Manju Goyal. There is nothing before us to come to the conclusion that she is to remarry. Moreover, the present is not the stage to go into the aforesaid controversy and to deny Smt. Manju Goyal the custody of the child. Suffice it to point out that no order of custody can ever be considered to be permanent. Learned counsel for the respondents wanted us to give a direction to Smt. Manju Goyal to permit respondents 1 and 2 to visit the petitioner whenever they desired and also to bring the petitioner to their house off and on. It is not possible to give any direction in that regard. We can, however, only express the hope that Smt. Manju Goyal would (take care of the sentiments of respondents 1 and 2 and other members of their family and would not do anything depriving them to meet Vinayak Goyal which is not expected of a high family to which the parties belong. 15. THESE reasons shall form part of the judgment which has been pronounced by us on 15-5-1981.