Sunita Malik v. Dharam Veer Singh Malik — 1991 DIGILAW 989 (ALL)

JUDGMENT G.P.Mathur, J. 1. It is an unfortunate case where two minor boys aged about 7 years and 8-1/2 years have not only been deprived of the company of their mother for over two years but they have also become subject matter of litigation. None- else but their own parents are responsible for this unhappy state of affairs. Their father is suffering from the ego of a typical Indian husband and their mother appears to be overconscious of her job and asademic achievements. 2. This petition under Article 226 of the Constitution has been filed by Smt.Sunita Malik for a writ of habeas corpus directing the opposite parties to produce her sons Pulkit Malik and Ankit Malik in this Court so that their custody may be given to the petitioner, who is their mother. D. V. Singh Malik, who is the father of the children, has been arrayed as opposite party no. 1 and Vikram Singh, their grand father, has been arrayed as opposite party no. 2. The petition is a long one and runs into 54 paragraphs. The main allegations in the petition are that the petitioner Smt. Sunita Malik is M.Sc. Ph.D. and is a lecturer in Dayawati Modi Academy, a public school in Modipuram. Meerut. She was married to D. V. Singh Malik, who is M.Sc. and is working with Modi Rubbers Out of the wedlock she was blessed with two sons Pulkit and Ankit. Initially the petitioner and her husband were living at Meerut 'in various rented accommodations but in June, 1988, they shifted to the newly constructed house of the father of the petitioner, Dr. Chokhe Singh. Both the sons of the petitioner were admitted in the Dayawati Modi Academy and were studying there, ' It is alleged that opposite party no.1 wanted to somehow grab the house of the petitioner's father situate at E-6 Pallavpuram. Meerut, but when it was resented he became very sore, withdrew himself and denied the petitioner of his society. On 12th April, 1989, the opposite party no.1 took the children out on the pretext of taking them to Navchandi fair and then to Muzaffarnagar to enable his parents to meet them. However, subsequently she received a legal notice on 15th April 1989, from her husband informing her that the children had started living with their grand-father at Muzaffarnagar. On 12th April, 1989, the opposite party no.1 took the children out on the pretext of taking them to Navchandi fair and then to Muzaffarnagar to enable his parents to meet them. However, subsequently she received a legal notice on 15th April 1989, from her husband informing her that the children had started living with their grand-father at Muzaffarnagar. On 17th April, 1989, O. P. No. 1 filed a suit for injunction in the court of the Civil Judge, Muzaffarnagar, and an injunction order was passed against her, The petitioner filed a petition under the Guardians and Wards Act for appointment of guardian of the person of the minors in the court of the District Judge Meerut but the proceedings of the said case were got stayed by O, P. No. 1 by filing a transfer application in the High Court. It is also averred that the petitioner had not been able to meet her two sons for the last two years except on three or four occasions. The children were greatly attached to their mother but they were being forcibly detained by the opposite parties at Muzaffarnagar against their wishes, It is further averred that the petitioner being a lecturer, is earning good salary and can look after the children better than O. P. No. 1, who being employed in a factory, has long working hours and is not able to devote any time to them The father of the boys, namely, D. V. Singh Malik has filed a detailed counter-affidavit controverting the allegations made by the petitioner and has pleaded that the petitioner was only M.Sc. at the time of her marriage and it was on his pursuation that she got Ph.D: and B. Ed. degrees. The petitioner did not want to live in India and wanted to go to U.S.A. for which she attempted to obtain passport in thick veil of secrecy: She was more interested in her own career than in the welfare of her children: When the petitioner and O. P. No. 1 were living together the petitioner used to go out in the morning and return late in the evening and she was busy in going to parties, tours etc. and had no spare time for the family. The children are being looked after by him and his parents and are receiving good education in a public school at Muzaffarnagar. and had no spare time for the family. The children are being looked after by him and his parents and are receiving good education in a public school at Muzaffarnagar. It is also averred that the petitioner never made any attempt for re-approachment and he is still willing to take back the petitioner to make a new beginning and write off the past: It is emphatically denied that the children were taken away fraudulently and they were being unlawfully detained. 3. It may be mentioned here that the petitioner Smt.Sunita Malik filed a petition on 20-2-1990 under section 7/8 of the Guardians and Wards Act for appointment of guardian of her minor children Pulkit and Ankit in the court of the District Judge, Meerut, which was registered as Misc. Case No. 53 of 1990. However, the case could not proceed as D. V. Singh Malik, O. P. No. 1, filed a transfer application in the High Court in which the proceedings of the case were stayed: The stay order is still operative. O. P. No,1 D: V. Singh Malik has also filed an injunction suit against the petitioner Smt.Sunita Malik. 4. Shri Ravi Kant, learnned counsel for o.p.no. 1, has contended that the children were not being forcibly or unlawfully detained and a writ of habeas corpus was not maintainable. The argument of the learned counsel is not tenable as it is well settled that a writ of habeas corpus would be maintainable to enforce the legal right to the custody of minors. In the law of Extraordinary Legal Remedies by Ferris and Ferris it has been observed as follows in para 4 of the chapter dealing with habeas corpus :- "The writ has for its object the speedy reliefs, by judicial decree, of persons who are illegally restrained of their liberty. It also lies where a party is held by one person when another is entitled to custody in which case the court is empowered to deliver him from the unlawful imprisonment by committing him to the custody of the person, who is by law entitled thereto, as in the cases of infants and insane persons," In Halsbury's Laws of England, Vol. 11, para 1469, the law has been more succinctly stated as under :- "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 unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restrain or force is being used towards the minor by the person in whose custody and control he is for the time being.' Therefore, even if the minor children are not being unlawfully detained, the present habeas corpus petition filed by their mother is maintainable. Learned counsel for the respondent next contended that the petitioner had already instituted a case under the Guardians and Wards Act in the Court of District Judge, Meerut, and as she was pursuing an alternative remedy the present petition filed by her in the High Court under Article 226 of the Constitution was not maintainable. It may be observed here that respondent no.1 D. V. Singh Malik has filed an application in the High Court for transferring the petition under the Guardians and Wards Act, filed by the petitioner, from the court of District Judge, Meerut, to the court of District Judge, Muzaffaranagar, and in this transfer petition the case instituted by the petitioner has been stayed. It is not disputed that o.p. no. 1 filed the transfer application in the High Court even before he filed written statement in the court of District Judge, Meerut, and the stay order is still operative. Therefore, no progress has been made in the petition filed by the petitioner Smt.Sunita Malik under the Guardians and Wards Act. Since o.p. no. 1 has himself got the proceedings of the aforesaid case stayed by filing the transfer application, it does not lie in his mouth to say that the present habeas corpus petition is not maintainable on the ground that the petitioner was pursuing an alternative remedy. 5. The legal position on this point is also quite clear. A writ of habeas corpus is not refused merely on the ground of existence of an alternative remedy. In Halsbury's Laws of England, Vol. 5. The legal position on this point is also quite clear. A writ of habeas corpus is not refused merely on the ground of existence of an alternative remedy. In Halsbury's Laws of England, Vol. 11, para 1455, the law on this point has been stated as follows :- "......The writ is a writ of right and is granted ex debito justitiae. It is not, however, a writ of course. Both on common law and by statute the writ of habeas corpus may be granted only upon reasonable ground for its issue being shown. The writ may not in general be refused merely because there exists an alternative remedy by which the validity of the detention can be questioned." In Vinayak Goyal v. Prem Prakash Goyal. 1981 AWC 457 , a Division Bench of our Court, after considering the authorities on the subject, has ruled that the law is well settled that a writ of habeas corpus would be maintainable for the custody of a child despite an alternative remedy of filing an application under the Guardians and Wards Act. Therefore, in my opinion inspite of the fact that the petitioner has filed a petition under the Guardians and Wards Act in the court of the District Judge, Meerut, the present habeas corpus petition is maintainable in law. 6. Sri Ravi Kant then contended that respondent no 1 D. V. Singh Malik has filed suit no 259 of 1989 against the petitioner Smt Sunita Malik and Surendra Pal Singh in the court of Civil Judge, Meerut. for permanent injunction restraining defendant no. 1 from forcibly or without the consent of the plaintiff removing the minors, Pulkit and Ankit, from the plaintiff's place at Muzaffarnagar or from his guardianship. In the said suit an ex parte injunction order was passed on 19-4-1989 issuing notice to the defendants for 25-4-1989 and till that . date the defendants were restrained from removing the minor children from the guardianship of the plaintiff. The said injunction order is still operative. Learned counsel has submitted that as the injunction order is still in operation the present petition is not maintainable and is liable to be dismissed Learned counsel for the petitioner has submitted that the fact of filing of the suit by respondent no. 1 was not concealed and was clearly mentioned in para 29 of the petition. Learned counsel has submitted that as the injunction order is still in operation the present petition is not maintainable and is liable to be dismissed Learned counsel for the petitioner has submitted that the fact of filing of the suit by respondent no. 1 was not concealed and was clearly mentioned in para 29 of the petition. He further submitted that on account of the delaying tactics adopted by respondent no. 1 the application to vacate the injunction order filed by the petitioner has not been heard and the injunction order is still continuing to be in operation. It may be pointed out that the two minors, namely, Pulkit and Ankit, are not parties to fie suit. No injunction order is operative as against the minor boys. Respondent no. 1 D. V. Singh Malik has impleaded only two persons as defendants to the suit namely, Smt.Sunita Malik and Surendra Pal Singh and has sought relief in the suit as against these two persons to the effect that they should not forcibly or without the consent of the plain - tiff, remove the minors from the plaintiff's place or gardianship. The in - junction order which was granted by the learned Civil Judge on 19-4-1989 has in put a restraint only upon defendants 1 and 2 to to the effect that they would not remove the minors, Pulkit and Ankit, from plaintiff's guardianship. It is, therefore, clear that there is no order of any court directed against the minors that they would continue to remain in the custody and guardianship of D. V. Singh Malik, respondent no. 1. In case the minors themselves walk away from the custody of their father and start living somewhere else, there will be no breach of the injunction order. Another aspect of the matter is that the injunction order only restrains the defendant from removing the minors from the plaintiff's guardianship. It does not restrain the petitioner from instituting any proceeding in a court of law nor can such an injunction be issued in view of section 41 of the Specific Relief Act. The petitioner is not herself physically removing the children from the guardianship of o.p. no. 1 but she is merely pursuing a constitutional remedy under Article 226 of the Constitution of India. 7. The petitioner is not herself physically removing the children from the guardianship of o.p. no. 1 but she is merely pursuing a constitutional remedy under Article 226 of the Constitution of India. 7. Therefore, the injunction order dated 19 4-1989 does not operate as a bar against the issue of a writ of habeas corpus for realsing the minors from the custody of respondent no. 1 and entrusting them to the custody of the petitioner. 8. Learned counsel for the respondents also placed reliance on A. Laxman Rao v. Judicial Magistrate 1st Class, AIR 1971 SC 186 and Kanu Sanyal v. Distt.Magistrate, AIR 1974 SC 510 , in support of his argument that on account of the injunction order dated 19-4-1989 a writ of habeas corpus could not be granted. In my opinion both the cases cited by the learned counsel are clearly distinquishable. In both the cases the persons, who had applied for setting at liberty, had been committed to jail custody by an order passed by a competent court. There was a valid subsisting order in operation against the person who had applied for being released. In the present case, as shown earlier, there is no injunction order directed against the minors nor they are party to any suit. The injunction order is only operative against the defendants in the suit, viz, Smt.Sunita Malik and Sorindra Pal. It was next contended by learned counsel for the respondents that under section 6 (a) of the Hindu Minority and Guardianship Act the natural guardian of a Hindu minor is the father and after him the mother and, therefore, respondent no. 1 was the natural guardian of the children Pulkit and Ankit. It was also submitted that as both the minors were more than five years in age the mother was not entitled to get their custody in preference to the father. Sri A. D. Prabhakar, learned counsel for the petitioner, submitted that the question of custody of minor children should not be decided on the basis of the legal rights of the parties but on the consideration of welfare of minors. In support of his submission he placed reliance on Supreme Court decisions in Smt.Veena Kappor v. Varnider Kumar, AIR 1982 SC 792 and Mrs. In support of his submission he placed reliance on Supreme Court decisions in Smt.Veena Kappor v. Varnider Kumar, AIR 1982 SC 792 and Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3 , where it was held as under :- "Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor." It is, therefore, clear that the matter regarding custody of the minor boys should not be decided on the basis of the legal rights of the petitioner or respondent no, 1 bus on the paramount consideration of their welfare 9. Now I have to consider what will be in the interest and welfare of the minors; whether their custody should remain with respondent no. 1 or with the petitioner. The dictionary meaning of the word 'welfare' is prosperity, health, well-being, success the state of being healthy and happy. In Vinayak Goyal's case (supra) the Court had an occasion to consider the word 'welfare' in relation to minors and it was held as follows :- "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, (1983) 92 QBD 232 at page 248 m 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 as well as his physical well being; Nor can ties of affection be disregarded." The material on record shows that the petitioner is M.Sc. Ph.D. and B.Ed, and is thus highly educated. Her father is Ph.D. and was Director of Central Institute for Cotton Research, Nagpur. Her one sister is M.Sc. Ph.D. and is pursuing higher studies in U.S A. Her one brother is M,Sc. Ph.D. and B.Ed, and is thus highly educated. Her father is Ph.D. and was Director of Central Institute for Cotton Research, Nagpur. Her one sister is M.Sc. Ph.D. and is pursuing higher studies in U.S A. Her one brother is M,Sc. in Computer Science and is working in U. S. A. and another is a science graduate and is an officer in Air Force. Respondent no. 1 is M.Sc. and holds a diploma in Business Administration. His father in B.Sc, L.L.B. and retired as Police Inspector and his one brother is only High School according to the petitioner but according to respondent no. 1, he is a graduate, Another brother of respondent no, 1 is M.V.Sc. and is working for a doctorate degree. The petitioner admittedly is living with her father at Meerut. The petitioner is more qualified than respondent no. 1 and it also appears shat there is good academic atmosphere in the parental home of the petitioner. The petitioner, her one sister and father are Ph.-Ds. The academic achievements of the petitioner's brother and sister also appear to be creditable. In this background there can be no manner of doubt that the two boys will get good education if they stay with their mother. I do not mean to say that respondent no. 1 will not educate his children but the overall academic atmosphere in the petitioner's house appears to be better than in the house of respondent no. 1 and such an atmosphere always helps the young children and encourages them to attain academic excellence. It may also be added here that the petitioner is working as a lecturer in a college and being a teacher herself, she is bound to look after the education of her children. 10. It is not disputed that respondent no. 1 is employed with Modi Rubbers at Modipuram in the district of Meerut and is residing at Muzffar- nagar. Everyday be goes from Muzaffarnagar to Meerut in the morning and returns in the night Pulkit has stated that respondent no. 1 leaves the house for work at 7 in the morning and returns at 8.30. 1 is employed with Modi Rubbers at Modipuram in the district of Meerut and is residing at Muzffar- nagar. Everyday be goes from Muzaffarnagar to Meerut in the morning and returns in the night Pulkit has stated that respondent no. 1 leaves the house for work at 7 in the morning and returns at 8.30. P.M The petitioner has averred that she goes to her college in the morning and returns at 2 P.M. Previously both the boys were studying in the same college where their mother is teaching and if they stay with their mother, in all likelihood they would again be admitted in the same college. Thus the petitioner and the boys will be going to the college together and will also be returning together. The time during which the boys will be staying in the house the petitioner would also be present there. On the contrary respondent no 1 is away from his house from 7 A.M. to 8 30 P.M. IT is the grand parents of the boys who look after them during the absence of their father. Besides that a person who works in a factory and has to undertake a long journey everyday, for going to and coming back from the place of work, would be much too tried to devote any time to his children after returning from work. By the time he returns to his house it is time for the children to go to bed. As compared to respondent no. 1 the petitioner can devote much more attention and time to the welfare and upbringing of the children. Respondent no. 1 has stated in the counter affidavit that his father and mother devote time to the children. The petitioner also stays with her father Dr. Chokhey Singh. The love and affection of the maternal grand-father will also be available to the children in case they stay with their mother. The petitioner has also made some allegation in para 12 of the petition that one son and one daughter of Parambir Singh, another brother of respondent no. 1, stay with him in the same house and a son of Smt.Bina, sister of respondent no. 1. who is aged eight years, has been admitted in lower K. G. class at Muzaffarnagar. The petitioner has also made some allegation in para 12 of the petition that one son and one daughter of Parambir Singh, another brother of respondent no. 1, stay with him in the same house and a son of Smt.Bina, sister of respondent no. 1. who is aged eight years, has been admitted in lower K. G. class at Muzaffarnagar. IT is submitted by learned counsel for the petitioner that the company of the aforesaid children is not conducive to the well being of the children, Pulkit and Ankit. The allegations made in the petition have been denied in the counter-affidavit but it does appear that there are other children in the house who do not appear to be doing well in their studies. The overall atmosphere in the petitioner's house, in so far as education is concerned, appears to be better for the children than in the house of respondent no. 1. Learned counsel for respondent no. 1 has submitted that he is getting Rs. 5,000/- as salary, besides his family is possessed of about one hundred btghas of land and so he is better placed financially than the petitioner. The petitioner has clearly stated in para 38 of rejoinder-affidavit that her present salary in Rs 2815/- and she has filed her pay-slip for the month of February 1991. She has also filed pay-slip of respondent no. 1 which shows that his salary is Rs 3205/- and besides that he is getting Rs. 300/- as conveyance allowance and Rs. 690/- as house rent and thus the total emoluments come to Rs. 4195/-. It is true that the salary of respondent no. 1 is more than the salary of the petitioner but in my opinion the petitioner is earning enough to properly maintain her children. It cannot be said that the financial capacity of the petitioner is such that the children would be hard-pressed for money or that they will not be properly brought up 11. Learned counsel for respondent no. 1 has then contended that the petitioner is not interested in staying in India and wanted to migrate to U.S.A. and in support thereof evidence has been filed that she applied for a passport. It is common knowledge that one can have a passport by merely spending Rs. Learned counsel for respondent no. 1 has then contended that the petitioner is not interested in staying in India and wanted to migrate to U.S.A. and in support thereof evidence has been filed that she applied for a passport. It is common knowledge that one can have a passport by merely spending Rs. 300/- or so but it requires lot of money and that too in foreign exchange to go to U.S.A. There is no material on record to indicate that the petitioner has either secured a scholarship or a job in U.S.A. She has explained in the rejoinder-affidavit that as her one brother and one sister are in U.S.A. she applied for a passport. From the mere fact that the petitioner has obtained a passport no inference can be drawn that she would migrate to U.S.A. along with her children and settle down there. 12. I had also examined the boys, Pulkit and Ankit After examination I found that the boys are fairly intelligent and gave proper answers to the queries made by me. Their statements, which are on the record, show that they are being virtually looked after by their grand-mother and grandfather as their father is practically away for the whole day leaving early at 7 A.M. and returning late at 8.30 P.M. It is common knowledge that as compared to an industrial establishment there are far more holidays in a college and the working hours are also much less. Therefore, the mother can devote much more time to the children than the father. During the course of their examination Ankil clearly stated that he was not feeling very happy with his father and wanted to live with his mother. Similarly Pulkit also stated that he wanted to live with his mother. Both the boys expressed keen desire to live with their mother. Taking into consideration the entire facts and circumstances of the case I am clearly of the opinion that the interest and welfare of the minors will be better served in case they stay with their mother. The habeas corpus petition is accordingly allowed, The respondents are directed to deliver the minor children Pulkit Malik and Ankit Malik to the petitioner Smt. Sunita Malik. Petition allowed.