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2008 DIGILAW 1973 (PNJ)

Gippy Arora v. State of Punjab

2008-11-25

M.M.S.BEDI

body2008
JUDGMENT Mr. M.M.S. Bedi, J.: - Petitioner through this habeas corpus petition has sought the production of her minor son-Master Dasasya Singh and his release from the custody of respondents No. 2 to 4 on the ground that the child has been removed from the lawful custody of the petitioner by practicing fraud and deceit pursuant to a well planned conspiracy and has been forcibly detained. As per the averments in the petition, the marriage of the petitioner was performed with respondent No.2 on October 17, 2003 at Amritsar. Respondents No.2 and 3, however, have turned her out from her matrimonial home in October 2004 while she was expecting delivery within two months. The petitioner gave birth to a male child-Master Dasasya Singh on May 15, 2005 at Amritsar at her parental home. Respondents came to see the child after five months after the birth. Matter was compromised and she was taken back to the matrimonial home. On the day of Diwali in 2007 petitioner alongwith her child was again turned out of the house. Petitioner claims that she has been staying with her son at Amritsar. Respondent No.4, the father-in-law of the petitioner is a retired Additional Director General of Police and enjoys lot of influence in Gujarat being an Ex.IPS Officer. The father of the petitioner was summoned by her father-in-law and mother-in-law through SHO Police Station Civil Lines, Amritsar in the Police Mess where the parents of the petitioner were threatened and asked to handover the custody of Master Dasasya Singh to them but he refused. 2. On june 8, 2008, respondent No.2-husband came to the house of the petitioner and requested for taking the child out for some time. Pursuant to the consent of the petitioner, the child was taken out for two hours and was returned back. Again the next date on June 9, 2008, respondent No.2 husband took the child for three hours and returned the child. It was again repeated the following day. On Thursday (12th June 2008) when the child was taken by respondent No.2 on the pretext of roaming around, it was not returned. Petitioner tried to contact respondent No. 2 on telephone but he did not respond. Petitioner contacted the relatives of respondent No.2 at Amritsar, she was informed that the child had been taken away to Ahmedabad. On Thursday (12th June 2008) when the child was taken by respondent No.2 on the pretext of roaming around, it was not returned. Petitioner tried to contact respondent No. 2 on telephone but he did not respond. Petitioner contacted the relatives of respondent No.2 at Amritsar, she was informed that the child had been taken away to Ahmedabad. Petitioner claims that respondent No. 2 has removed the child from the lawful custody of the petitioner by practicing deceit, as such the child is in illegal custody of respondent No. 2. 3. In reply to the notice issued to the private respondents, the maintainability of the petition has been challenged. It has been claimed that respondent No. 2 being father and natural guardian cannot be said to be in illegal custody of the child. Allegations have been leveled that the petitioner had treated respondent No. 2 with cruelty, therefore, respondent No. 2 has filed a petition for grant of divorce before the Family Court at Ahmedabad. In the said petition, respondent No. 2 has also filed an application praying for custody of the minor child. The Principal Judge vide order dated July 3, 2008 has passed an order of status quo regarding the custody of the child. Copy of the divorce petition has been placed on record as annexure R-2 alongwith copy of the application under Section 26 of the Hindu Marriage Act and order dated July 3, 2008 passed by the Principal Judge, Revisional Court, Ahmedabad in the matrimonial proceedings. 4. Respondents claims that an order made by competent Family Court cannot be said to be illegal unless and until the same is set aside in accordance with law. 5. Vide an interim order dated July 17, 2008, a Coordinate bench of this Court had directed the minor child to be produced in the Court. The respondents had preferred an SLP before the Hon’ble Supreme Court being SLP (Crl.) No. 5358 of 2008. The Hon’ble Supreme Court was pleased to set aside the said order dated October 17, 2008 and granted interim stay by passing the following order:- “Leave Granted. The present appeal is directed against the interim order passed by, the High Court of Punjab & Haryana. The said order reads as under: “Arguments heard on the point of maintainability, however, it is felt desirable that question of maintainability be also disposed of alongwith the main petition. The present appeal is directed against the interim order passed by, the High Court of Punjab & Haryana. The said order reads as under: “Arguments heard on the point of maintainability, however, it is felt desirable that question of maintainability be also disposed of alongwith the main petition. Adjourned to 6.8.2008. On the said date respondent is directed to produce the child in Court. Both the parties are also directed to be present in Court on the adjourned date.” The abovesaid interim order was set aside by the Hon’ble Supreme Court with following observations: “ The appellant has approached this Court being aggrieved by that part of the order by which the High Court directed to produce the child on August 6, 2008 without deciding the question of maintainability of writ petition. We had issue notice and meanwhile further proceedings were also stayed. The child was thus not produced in the Court pursuant to the stay order. We have heard learned counsel for the parties. In our opinion, let interim stay which we had granted continue till the disposal of the main matter by the High Court. The High Court is requested to decide the main matter as expeditiously as possible, preferably within two months. The appeal is, accordingly, disposed of. All contentions of all the parties are kept open. Learned counsel for appellant No. 1-Amandeep Singh (father) states that the child-Dasasyajit Singh is in Delhi and that the father has no objection if respondent No. 1-Gippy Arora (mother) is allowed to meet her son in present of both the counsel.” 6. Counsel for the petitioner has contended that there is no averment in the writ petition that the welfare of the child would be served better if the custody of the child is handed over to the petitioner. The habeas corpus petition is not maintainable. It has also been informed by the parties that a transfer application had been filed by the petitioner-wife of the matrimonial case from Ahmedabad to Delhi. Vide a consent order dated September 5, 2008, the transfer application has been allowed and the matrimonial dispute has been transferred to Delhi. The habeas corpus petition is not maintainable. It has also been informed by the parties that a transfer application had been filed by the petitioner-wife of the matrimonial case from Ahmedabad to Delhi. Vide a consent order dated September 5, 2008, the transfer application has been allowed and the matrimonial dispute has been transferred to Delhi. Counsel for the petitioner has submitted that the petitioner is a natural guardian being mother of the child-Dasasya Singh and that the child had been in her lawful custody but the manner in which the other natural guardian i.e. respondent No. 2 has taken away the child warrants the issuance of a direction for production of the child and handing over the custody to the petitioner subject to any other legal provisions to be availed of by the parties for the custody of the child. 7. On the other hand, Mr. Jauhar, counsel for the respondents has vehemently contended that the High Court does not have any jurisdiction to determine the welfare of the child and to give a direction for handing over the custody of the child. 8. I have heard counsel for the petitioner as well as counsel for the respondent and gone through the entire record carefully. It is an admitted fact that respondent No. 2 has taken away the child from the territorial jurisdiction of this Court. The admission in that context has been made by him in a petition under Section 13 of the Hindu Marriage Act filed before the Family Court at Ahmedabad. The relevant portion of the averment in his petition reads as under: “The applicant (respondent No. 2) had gone to Amritsar in the month of June (2008) to have some social work and desired to spend the day time with son Dassayajit Singh thereby the applicant approached the opponent and her parents and requested for son Dassayajit’s company during day time. Dassayajit s/o of the applicant was with the applicant during the day time for 2 days. It was on 3rd day when the applicant was to return back to Delhi from Amritsar and went to the Airport with Dassayajit. Dassayajit was started crying and requested that he wanted to come to Ahmedabad and stay with Dadu and Dadi. The applicant could not control Dassayajit thereby the applicant brought Dassayajit to Ahmedabad. It was on 3rd day when the applicant was to return back to Delhi from Amritsar and went to the Airport with Dassayajit. Dassayajit was started crying and requested that he wanted to come to Ahmedabad and stay with Dadu and Dadi. The applicant could not control Dassayajit thereby the applicant brought Dassayajit to Ahmedabad. It will confirm from the above paragraphs that the opponent is mentally sick giving mental torture and agony to the applicant. The applicant also informed the opponent and her parents that the son Dassayajit is with me and is safe.” 9. The abovesaid petition had been filed on June 24, 2008 after the child had been removed from the custody of the petitioner on June 12, 2008. A perusal of the petition annexure R-2 and the application under Section 26 of the Hindu Marriage Act indicates that besides leveling the allegation of cruelty against the petitioner, a plea has been taken that the petitioner is of unsound mind and that the minor’s child custody with such person will affect the mental state of the minor. It has also been mentioned that the petitioners family members also have the same personality trait and are mentally unsound, therefore, the custody of the child should be kept with respondent No. 2. 10. Before passing any order regarding the custody of the child, the material question regarding the maintainability of habeas corpus petition in the matters of custody of minor child has to be determined. It is a settled principle of law that in all the disputes pertaining to the custody of minor child, the interest and welfare of the minor is the predominant criteria. The Hon’ble Supreme Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another, AIR 1987 SC 3 was considering a dispute pertaining to custody of minor child in a criminal writ petition where one minor child was born of Indian father and American mother was an American citizen. On divorce of the parents his custody and guardianship had been entrusted to the mother by the competent Court of USA. The father was given visitation rights. He abducted the minor illegally in India. On divorce of the parents his custody and guardianship had been entrusted to the mother by the competent Court of USA. The father was given visitation rights. He abducted the minor illegally in India. On a writ petition filed by mother for custody of the minor, it was held that mother was full of’ genuine love and affection for the child and she could be safely trusted to look after him, educate him and attend in every possible way to his proper up-bringing. The child’s presence in India was held to be a result of an illegal act of abduction and father guilty of said act was held no entitled to claim any advantage. Relying upon 1996(1) All England Reporter 886, it was observed that it is the duty of Courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrong doing. A similar question has cropped up before this Court in a case of Marilynn Ainat Dhillon Gilmore @ Anita Dhillon v. Margret Nijjar and others, 1984(1) I.L.R. (Punjab) 1, where the parents were citizens of United States but had come to India, the wife had filed a petition for custody of her minor child by filing a habeas corpus petition. It was held that High Court could go into the question of custody of the children in habeas corpus proceedings. In para 17 the said judgment it was observed as follows: “17. Children need the love and care of both parents. If they cannot get it from the both then at least they must get it from one. The course which would deprive them of both must be avoided and adopted as the last report. Children are required to be in the custody of someone until they attain their majority. The Court in passing an order in writ jurisdiction in the matter has to deal it in equitable manner. It has also to give due weight to the claim of the respective parents founded on human nature and generally what is equitable and just. And irrespective of the rights and wrongs of the contending parents, the welfare of the children is the supreme consideration when employing the remedy of habeas corpus. It has also to give due weight to the claim of the respective parents founded on human nature and generally what is equitable and just. And irrespective of the rights and wrongs of the contending parents, the welfare of the children is the supreme consideration when employing the remedy of habeas corpus. It has rightly been observed by legal commentators that the proceedings of this kind partakes of the incidence of a suit in equity and is considered to by one in rem, the child being the res.” 11. The custody of the child was handed over to the mother subject to her producing undertaking to execute bond before the High Court to produce the children whenever ordered by the High Court. In Syed Saleemuddin v. Dr. Rukhsana, AIR 2001 SC 2172 , the Hon’ble Supreme Court considering the scope of habeas corpus petition regarding custody of minor children had held that the habeas corpus petition is maintainable. While granting the custody of the children to their mother till the family Court disposed of the petition for the custody of the children. It was observed as follows:- “From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court. Unfortunately, the judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri M.N. Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children.” 12. Similarly in the case of Mrs. Kuldeep Sidhu v. Chanan Singh and others, AIR 1989 P&H 103 , where the mother had an order of interim custody in her favour from a foreign Court and the father had in an unauthorized manner removed the children from Canada to India, the habeas corpus petition was allowed and custody of the children was directed to be handed over to the mother. In Eugenia Archetti Abdullah v. State of Kerala, 2005(1) RCR (Crl.) 259, a Division of Kerala High Court observed that for custody of children of less than 3 years lap of the mother is a natural cradle where the safety and welfare of children can be assured and there is no substitute for the same. In the said case custody of the minor children below 3 years was with father. The wife had claimed custody by tiling habeas corpus petition. It was held following the judgment of the Supreme Court in Manju Tiwari v. Rajendra Tiwari, AIR 1990 SC 1156 , that High Court can exercise jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when there is illegal detention or wrongful custody. Similarly a division Bench of Gujarat High Court in Surabhai Ravikumar Minawala v. State of Gujarat, 2005(2) RCR (Civil) 822 also the habeas corpus petition of the mother regarding custody of 9 months’ old child was allowed holding that no amount of wealth can take the place of mother’s care and love. Similar question had arisen before this Court in Manjit Kaur v. State of Punjab, and Crl. Similar question had arisen before this Court in Manjit Kaur v. State of Punjab, and Crl. W.P. No. 608 of 2008, decided on August 14, 2008 where a minor child of 9 months was taken away by his grand-parents when their daughter-in-law, an NRI, had come from abroad for a short period. This Court had held relying upon Manju Tiwari’s case (supra) that habeas corpus petition was maintainable as the child has been illegally snatched away from the mother. Custody of the child was handed over to the mother leaving the parties to avail other remedies in accordance with law. 13. On the other hand, Mr. Jauhar, counsel for the respondents has vehemently contended that habeas corpus petition for custody of the child is not maintainable. The only remedy available to the petitioner is to approach the Family Court where the matrimonial dispute is pending and it should be left to the discretion of said Court to determine the welfare of the minor child. He places strong reliance on the judgment of Sheela v. State of NCT of Delhi and another, 149 (2008) Delhi Law Times 476 (DB). 14. I have carefully gone through the said judgment. In the said case in a writ petition custody of the child was given to the wife subject to certain conditions on the basis of undertaking given by wife but on her failure to comply with the interim directions the custody was again handed over to the father. The conduct of wife was unfair. The writ petition was dismissed leaving the parties to battle out the custody of the child in appropriate forum. No absolute rule or law was laid down regarding non-maintainability of the writ petition. 15. Counsel for the respondents places reliance on a judgment of the Supreme Court in Saihba Ali v. State of Maharashtra and others, (2003) 7 SCC 250 . In the said case, custody of the minor child was with the grand-parents under the orders of competent Family Court. Wife had filed a petition under Article 32 of the Constitution of India seeking a writ in the nature of habeas corpus directing the respondents to produce the minor child and handover the custody of the same to her. In the said case, custody of the minor child was with the grand-parents under the orders of competent Family Court. Wife had filed a petition under Article 32 of the Constitution of India seeking a writ in the nature of habeas corpus directing the respondents to produce the minor child and handover the custody of the same to her. The Supreme Court held that the writ was not maintainable but observed in para 5 pf the judgment that to do complete justice, the Court could pass an order in the interest and welfare of the minor children that mother be given the visiting rights, but it was never laid down that no relief could be granted in a writ petition to do complete justice even in writ petition. He also placed reliance on a judgment of Allahabad High Court in Manjula Jha v. Ravindra Nath Jha, 1998(1) All India Hindu Law Reporter 273. In the said case, mother had sought production of the child and delivery of the child to her in a writ petition. The petition was dismissed, however, a direction was given to produce the child before the Court of Guardian Judge on a fixed date and to determine the writ of interim custody. Counsel for the respondents also placed reliance on Vaidehi v. I. Gopinath, 1993(2) All India Hindu Law Reporter, 647, where a mother had filed a writ petition against her husband to produce two minor children aged 9 years and 6 years and to set them at liberty by handing over them over to the mother. The habeas corpus petition was dismissed but the main consideration while dismissing the petition was that both the children produced in the Court had made statements which were recorded. In the said statements they had expressed desire not to stay with mother and preferred to stay with their father. Reliance has been placed on another judgment of Punjab and Haryana High Court in Smali Bagga (Smt.) v. State of Punjab and another, 1996(2) R.R.R. 202 : 1996(1) All India Hindu Law Reporter 683. In the said case, the proceedings regarding the custody of the child were pending before the Guardian Judge but the mother had filed a habeas corpus petition in the High Court seeking the custody of the child. In the said case, the proceedings regarding the custody of the child were pending before the Guardian Judge but the mother had filed a habeas corpus petition in the High Court seeking the custody of the child. The petition was dismissed, however, a direction was given to the Guardian Judge to decide the case within a period of three months. In the said case, the habeas corpus petition was not entertained. Another judgment relied upon by counsel for the respondent is Sumanlata v. Omparaksh Saini and others, 1990(1) All India Hindu Law Reporter, 286, where it was not held that the habeas corpus petition is not maintainable but after tracing the history and scope of habeas corpus petition, it was held that where the paramount interest of the minor does not demand any action, the Court will be slow in issuing the writ of habeas corpus. After discussing the ambit scope of habeas corpus for custody of minor and the law laid down by various judgments of the Apex Court and I sigh Court, the writ petition of the mother was dismissed. 16. After careful perusal of the judgments cited by counsel for the respondents, I am of the considered opinion that in none of the said judgments it has been laid down as a rule of law that in all cases of production and custody of the child by a natural guardian should be dismissed merely because it is for another Court i.e. Court of Guardian Judge to determine the question of welfare of the minor child in custody of another person. In view of the ratio of the judgments i.e. Manju Tiwari’s case (supra) and a Division Bench of Kerala High Court in Eugenia Archetti Abdullah’s case (supra), this Court is of the opinion that High Court can exercise jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when the custody of the child has been taken away be one of the natural guardian by playing a fraud upon the another. It is established from various documents produced on the record that the child in the present case is 11 months old. The custody was with mother but respondent No. 2 had come to Amritsar in the month of June, 2008 (Thursday) without telling the petitioner. It is established from various documents produced on the record that the child in the present case is 11 months old. The custody was with mother but respondent No. 2 had come to Amritsar in the month of June, 2008 (Thursday) without telling the petitioner. Thereafter he filed a petition under Section 13 of the Hindu Marriage Act before the Family Court at Ahmedabad on June 24, 2008 and obtained a status qua order regarding the custody of the child in a fraudulent manner. Such a conduct of respondent No. 2 on the face of it reflects that he has committed breach of trust with petitioner. He has played a fraud by deliberately deceiving the petitioner with a design to secure the custody of Master Dasasya Singh by taking unfair advantage of the circumstances. It is a clear case of deception in order to gain the custody of the child causing simultaneous loss to another. The Supreme Court in the case of S.P. Chengalvarjna Naidu (dead) by L.Rs v. Jagannath, [1994(1) ALL INDIA LAND LAW REPORTER 410] = AIR 1994 SC 853 observed as follows :- “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is a settled proposition of law that a judgment or decree obtained by fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first Court or the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.” 17. Order, if any, obtained by respondent No. 2 from Family Court at Ahmedabad is on the face of it an act of fraud played by respondent No. 2. When a fraud is apparent on the record, Court having jurisdiction cannot stand as a mere spectator in expressing inability to exercise jurisdiction and to do complete justice solely on the ground that a person has been able to, in a deceptive manner, abuse the process of the Court. When a fraud is apparent on the record, Court having jurisdiction cannot stand as a mere spectator in expressing inability to exercise jurisdiction and to do complete justice solely on the ground that a person has been able to, in a deceptive manner, abuse the process of the Court. Since the child had been taken from a place which falls in the jurisdiction of this Court, this Court will be competent to issue a direction to the respondents to restore the custody of the child to the petitioner who is the mother and the best person to watch the welfare of the child. A perusal of the order of Hon’ble Supreme Court dated October 17, 2008 indicates that respondent No. 2 had made a statement that child Dasasya Singh was in Delhi and that he had no objection if respondent No. 1 Zippy Arora (petitioner) is allowed to meet her son in presence of both the counsel. 18. Learned counsel for respondent No. 2 has vehemently contended that the status of lather as natural guardian is at par with the status of mother who is also a natural guardian. Mother should be directed to approach the Guardian Judge or Family Court or any other forum of competent jurisdiction to seek the custody of the child in accordance with the procedure prescribed. 19. The contention of counsel for respondent No. 2 would have found weight in case he had acted in a fair manner. After having fraudulently taken away the custody of the child from an area falling within the jurisdiction of this Court, he has taken a stand that the petitioner is not of sound mind as such welfare of the child lies with respondent No. 2. A person who seeks the equity must do equity. It does not lie in the mouth of respondent No. 2 to play a fraud with the petitioner and later on claim that he has got a preferential right to keep the custody of the child. The manner in which the child has been taken away from the petitioner cannot have the approval and sanction of law. He should have adopted a legal procedure to take the custody of the child. 20. The manner in which the child has been taken away from the petitioner cannot have the approval and sanction of law. He should have adopted a legal procedure to take the custody of the child. 20. In view of the above circumstances, a writ of habeas corpus is required to be issued to respondent No. 2 to produce the child before this Court on December 17, 2008 for handing over the same to the petitioner in mother. However, he will be given visitation rights till manner is finally decided by the Family Court or Court of Guardian, which Courts, appear to be competent to determine the welfare of the child on the basis of the evidence produced before the said Courts. Respondent No. 2 is directed to produce the child in the Court at 2.00 p.m. on December 17, 2008 for handing over the custody of the child to the petitioner-mother. Order regarding the visitation rights of respondent No. 2 will be passed after the child is produced in the Court. Disposed of in the abovesaid terms. Be listed for implementation on December 17, 2008. 21. The child has been handed over to the petitioner in the Court, after 3.30 p.m. 22. It has been agreed by the petitioner and respondent No. 2 that the welfare of the child is to be determined by a Court of competent jurisdiction for the purpose of Section 26 of the Hindu Marriage Act or for the purpose of Section 7/25 and Section 12 of the Guardianship and Wards Act 1890. 23. It has been informed that the petition under Section 26 of the Hindu Marriage Act is pending in the Court of Ms. Aditi Chaudhary, Additional District Judge, Central District, Tis Hazari, Delhi on 3.1.2009. The respondent will be entitled to meet the child, subject to any other order passed by that Court. The petitioner has undertaken to take the child along in the said Court on 3.1.2009 in order to enable respondent No. 2 to meet the child during the Court hours i.e. 10.00 a.m. to 4.00 p.m. in the Court premise. It will be open to respondent No. 2 to avail the legal remedy available to him under the Guardian and Wards Act, 1890. 24. It will be open to respondent No. 2 to avail the legal remedy available to him under the Guardian and Wards Act, 1890. 24. Any order passed regarding the interim custody or visitation right passed by the matrimonial Court or the Guardian Court will be binding on the parties as per law. Nothing observed by this Court in Crl. W.P. No. 543 of 2008 will, in any manner affect the rights of the petitioner on respondent No. 2. Disposed of.