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2001 DIGILAW 890 (PNJ)

Zorawar Singh Atwal v. Rachna

2001-08-21

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is a writ petition under Article 226 of the Constitution of India read with Section 100 Cr.P.C. seeking the custody of Kumari Natalia (daughter of the petitioner), to be given to the petitioner from the possession of respondents. 2. In the petition it was alleged that the petitioner and his wife Smt. Rachna (respondent No. 1) were citizens of India by birth and that petitioner and respondent No. 1, Smt. Rachna had a daughter namely Kumari Natalia, who was also citizen of India by birth. It was alleged that respondents 2 to 4 are close relatives of respondent No. 1 Smt. Rachna. It was alleged that respondent No. 4 Rajiv Monga and respondent No. 3 Smt. Surjit Kaur hatched a conspiracy and they put pressure on respondent No. 1 Smt. Rachna (wife of the petitioner) and instigated her against the petitioner and persuaded her to get settled in USA at their expense. It was alleged that respondent No. 3 Surjit Kaur called petitioners wife Smt. Rachna on 30.10.1999 to visit her home in Gurgaon for two days and the petitioner, thinking that it was a courtesy call by Smt. Surjit Kaur to call her daughter Smt. Rachna, allowed her to go to her house, whereupon Smt. Rachna went to house of Smt. Surjit Kaur alongwith petitioners minor daughter namely Kumari Natalia on 31.10.1999. It was alleged that after one week when the petitioner contacted Smt. Rachna to return to his house, Smt. Rachna wanted some more time to stay with her mother and as the time passed, the petitioner realised that Smt. Surjit Kaur, respondent No. 3 had called her daughter Smt. Rachna under a conspiracy to withdraw her from the society of the petitioner and to blackmail the petitioner and his parents. It was alleged that the petitioner went to their house to see Smt. Rachna and Kumari Natalia, minor, many a time but he was not allowed to meet them. Thereupon, the petitioner came to know that Smt. Rachna and Kumari Natalia were being confined by respondent No. 2 Jagjit Singh Monga, respondent No. 3 Smt. Surjit Kaur in their custody against their wishes and during this period both these respondents had hatched conspiracy to take away Smt. Rachna and Kumari Natalia, minor to USA. Thereupon, the petitioner came to know that Smt. Rachna and Kumari Natalia were being confined by respondent No. 2 Jagjit Singh Monga, respondent No. 3 Smt. Surjit Kaur in their custody against their wishes and during this period both these respondents had hatched conspiracy to take away Smt. Rachna and Kumari Natalia, minor to USA. It was alleged that on 20.5.2000, Smt. Rachna contacted the petitioner and expressed her desire to join the petitioner and she also told him that she was being detained and illegally confined by her parents against her wishes alongwith her child Kumari Natalia. It was also alleged that on one occasion Smt. Rachna called the petitioner on phone and told the petitioner that she was badly in need of Rs. 20,000/- whereupon the petitioner sent the money to Smt. Rachna through a messenger. It was alleged that the petitioner also received a call from the school with regard to the outstanding dues of fees for the months of July, August and September in respect of Kumari Natalia and the petitioner also arranged and paid the said fees. It was alleged that Smt. Rachna called upon the petitioner and asked him that she would be going to a hill station for a week in the month of May 2000 and would be returning to Gurgaon after a week and being assured about the safety of his wife and daughter the petitioner went for a business tour and after one month when the petitioner returned to Gurgaon and tried to find out Smt. Rachna and Kumari Natalia, the petitioner came to know that Jagjit Singh Monga and Smt. Surjit Kaur had influenced Smt. Rachna to go abroad and in that design Smt. Rachna and Kumari Natalia flew out of the country without the consent and knowledge of the petitioner, on 31.5.2000. It was alleged that before leaving for America, Jagjit Singh Monga and Smt. Surjit Kaur had demanded a sum of Rs. 15 lacs from the petitioner for returning the custody of Kumari Natalia to the petitioner failing which they had threatened that they would take the daughter of the petitioner out of country. It was alleged that to meet the said threat, Smt. Rachna and Kumari Natalia were taken away on 31.5.2000 to USA where Kumari Natalia was being kept in hiding for meeting the demand of Rs. 15 lacs. It was alleged that to meet the said threat, Smt. Rachna and Kumari Natalia were taken away on 31.5.2000 to USA where Kumari Natalia was being kept in hiding for meeting the demand of Rs. 15 lacs. It was alleged that in this manner Jagjit Singh Monga, Smt. Surjit Kaur and Smt. Rachna had abducted Kumari Natalia without the consent to petitioner, who is natural guardian of Kumari Natalia. It was alleged that grievance of the petitioner was the his daughter was kept in illegal custody of Smt. Rachna and her parents namely Jagjit Singh Monga and Smt. Surjit Kaur and also by her brother Rajiv Monga. It was alleged that the petitioner was natural guardian of his minor daughter, Kumari Natalia, who is aged 3-1/2 years and she has been taken away illegally from the custody of the petitioner without his consent. It was alleged that it was a fit case where necessary action be taken for securing the liberty and release of the minor daughter of the petitioner from unlawful detention of respondents and that too in a foreign country. It was accordingly prayed that a writ of habeas corpus be issued against the respondents to produce Kumari Natalia, minor daughter of the petitioner in the court. 3. I have heard the learned counsel for the petitioner and have gone through the record carefully. 4. Learned counsel fro the petitioner has submitted before me that the petitioner was entitled to the custody of his minor daughter Kumari Natalia and that it was a fit case for the issuance of writ of habeas corpus directing the respondents to produce Kumari Natalia in the court. Reliance was placed on the law laid down by their Lordships of the Supreme Court, in the case reported as Mrs. Elizabeth Dinshaw v. Arvind M. Dinshaw and another, AIR 1987 SC 3; Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and another, AIR 1984 SC 1224 and Sarita Sharma v. Sushil Sharma, AIR 2000 SC 1019 : 2000(2) RCR(Crl.) 194 (SC). 5. After hearing the learned counsel for the petitioner and after perusing the record, I find no force in this petition, which is liable to be dismissed in limine. 6. Even as per the allegations in the petition, the minor child Kumari Natalia is presently in the custody of her mother Smt. Rachna. The petitioner is father of the minor child. After hearing the learned counsel for the petitioner and after perusing the record, I find no force in this petition, which is liable to be dismissed in limine. 6. Even as per the allegations in the petition, the minor child Kumari Natalia is presently in the custody of her mother Smt. Rachna. The petitioner is father of the minor child. As per the allegations in the petition, it was on 31.10.1999 that Smt. Rachna had left the house of the petitioner and had gone to her parental house alongwith minor child Kumari Natalia. Thereafter on 31.5.2000 it is alleged that Smt. Rachna had left India alongwith her daughter Kumari Natalia and had gone to USA to live with her brother and her parents. The question that comes up for consideration in the present petition is as to whether Kumari Natalia can be said to be in the illegal custody of respondents when she is alongwith her mother and whether the petitioner, who is father of the minor is entitled to seek the custody of the minor by filing the present petition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus, on the facts and circumstances of the present case. 7. In AIR 2000 SC 1019 (supra) the dispute was between the husband and wife over the custody of minor children. Sushil Sharma had initiated proceedings for dissolution of marriage with Smt. Sarita Sharma in the courts in USA in the year 1995. In those proceedings interim orders were passed from time to time in respect of custody of the minor children including visitation rights of the parents. During the pendency of divorce proceedings, Sushil and Sarita lived together and they again separated and this time Smt. Sarita took away the children alongwith her, whereupon, the American Judge passed an order putting the children in the care of Sushil while Smt. Sarita was given only visitation rights. On 7.5.1997, Smt. Sarita had picked up the children from the house of Sushil in exercise of her visitation rights and she did not return the children to the school on the next morning, whereupon Sushil made inquiries and came to know that Sarita had vacated the house and had gone away somewhere. On 7.5.1997, Smt. Sarita had picked up the children from the house of Sushil in exercise of her visitation rights and she did not return the children to the school on the next morning, whereupon Sushil made inquiries and came to know that Sarita had vacated the house and had gone away somewhere. On further inquiries, he came to know that Sarita had left America and had flown to India alongwith children without obtaining any order from the American courts. In the meanwhile, on 12.6.1997, the decree for divorce was granted in favour of Sushil and in view of the conduct of smt. Sarita, it was also directed that sole custody of children should be with Sushil. Smt. Sarita was denied event he visitation rights. Thereafter, on 9.9.1999, Sushil filed a writ petition in the Delhi High Court, seeking a writ of habeas corpus in respect of two minor children Neil and Monica, aged 7 and 3 years respectively. The stand of Smt. Sarita in the said writ petition was that on 7.5.1997, both the children were in her lawful custody and she had brought the children to India with the full knowledge of Sushil and that physical custody of the children should not be given to Sushil. The Delhi High Court held that in view of the interim order passed by the American Court, Smt. Sarita had committed a wrong in not informing that court and not taking its permission to remove the children from out of jurisdiction of that court. It was also noticed by the Delhi High Court that a competent court having territorial jurisdiction had now passed a decree of divorce and had ordered that only the father i.e. Sushil shall have the custody of children. Accordingly, Delhi High Court rejected the contention of Sarita and allowed the writ petition of Sushil petitioner and directed Sarita to restore the custody of the children to Sushil Sharma, petitioner alongwith passports of the two children. Aggrieved against this order passed by the Delhi High Court, Smt. Sarita filed an appeal before the Honble Supreme Court, who after considering the rival contentions of both the sides, accepted the appeal and set aside the order passed by the Delhi High Court. Aggrieved against this order passed by the Delhi High Court, Smt. Sarita filed an appeal before the Honble Supreme Court, who after considering the rival contentions of both the sides, accepted the appeal and set aside the order passed by the Delhi High Court. While doing so it was held by the Honble Supreme Court that inspite of the orders passed by the American Courts, it was not proper for the High Court to have allowed the habeas corpus writ petition and to direct the appellant (Smt. Sarita) to hand over the custody of the children to the respondent (Sushil) and to have permitted him to take away the children to USA. It was further held that what would be in the interest of children requires full and thorough inquiry and therefore, High Court should have directed the respondent (Sushil Sharma) to initiate appropriate proceedings in which such an inquiry could be held. The Honble Supreme Court had noticed the law laid down by the Honble Supreme Court, in the case reported as AIR 1984 SC 1224 (supra) as also the law laid down by the Honble Supreme Court, in the case reported as Dhanwanti Joshi v. Madhav Unde, 1998(1) SCC 112, in which the authority AIR 1987 SC 3 (supra) was also considered. 8. In Rajiv Bhatia v. Govt. of NCT Delhi and others, 1999(8) SCC 525, again the dispute was between husband and wife over the custody of their minor child named Akansha. The marriage between Amit and Smt. Priyanka had taken place in April 1993. Out of their wedlock two girl children namely Akansha and Jayanti were born. Smt. Priyanka filed petition for the issuance of writ of habeas corpus alleging therein that her daughter Akansha was in the illegal custody of Rajiv, elder brother of her husband and that said Akansha should be produced in the court and her custody should be given to her. In the said petition, Smt. Priyanka had also challenged the alleged deed of adoption vide which Akansha and her younger sister Jayanti had been given in adoption by their parents to Rajiv and his wife. The said petition was contested by the adopting father namely Rajiv on the ground that Akansha was given in adoption by the natural parents by executing registered adopting deed. The said petition was contested by the adopting father namely Rajiv on the ground that Akansha was given in adoption by the natural parents by executing registered adopting deed. After examining legality of the adoption deed in order to find out whether the custody of Akansha should be with the natural mother or with the adoptive parents, the Delhi High Court came to the conclusion that the Deed of Adoption did not suffer from any illegality and it was held that the said adoption deed did not inspire confidence as it was not acceptable that a young mother would give in adoption her daughter aged 3 years. Accordingly, Delhi High Court directed that the custody of the minor child Akansha shall remain with the natural mother till appropriate civil courts in appropriate civil proceedings decide otherwise. Against this direction given by the Delhi High Court, give in a habeas corpus petition, one appeal was filed by the adoptive father and the other by Akansha minor through the adoptive father and the third by natural father before the Honble Supreme Court. The Honble Supreme Court held that they had no hesitation to come to the conclusion that the High Court of Delhi in a petition for habeas corpus was not entitled to examine the legality of the Deed of Adoption and then come to the conclusion one way or the other, with regard to the custody of the child. It was further held that the High Court had lost sight of the fact that the petition was one for issuance of writ of habeas corpus and not for custody of the child. The Honble Supreme Court, however, left the final decision upon the competent forum with regard to the validity of the Adoption deed as well as the custody of the child in question. 9. In view of the law laid down by the Honble Supreme Court, in the above mentioned authorities, in my opinion, no case for interference by this court in the present petition under Article 226 of the Constitution of India is made out, especially when the child is in the custody of her mother since October, 1999. As referred to above, from 31.10.1999 to 31.3.2000, the child remained in the custody of her mother at Gurgaon and since 31.5.2000, the child is in the custody of her mother in USA. As referred to above, from 31.10.1999 to 31.3.2000, the child remained in the custody of her mother at Gurgaon and since 31.5.2000, the child is in the custody of her mother in USA. The present petition under Article 226 of the Constitution of India is dated 30.5.2001 i.e. just after 1 year of the date when Smt. Rachna had left India for USA alongwith minor child namely Kumari Natalia. It is well settled that while considering the question as to who should have the custody of the minor, the court has to keep in view the interest of the minor which can not be done without allowing the parties to produce evidence in support of their respective contentions. Such a matter can be decided by a Guardian Court, under the provisions of Hindu Minority and Guardianship Act, 1956 and Guardian and Wards Act, 1890. This is especially so, when under Section 13 of the Hindu Minority and Guardianship Act, 1956, it has been provided that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration and no person shall be entitled to the guardianship by virtue of the provisions of the said Act or any law relating to guardianship in marriage among Hindus. If the Court is of the opinion that his or her guardianship will not be for the welfare of the minor. 10. In view of the above, finding no merit in the present petition, the same is hereby dismissed. However, it will be open to the petitioner to apply to the Guardian Court for the custody of the minor namely Kumari Natalia. It is further directed that if any such petiton is filed, the Court shall decide the same considering the interest of the minor and keeping in view that the welfare of the minor is of paramount consideration.