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2009 DIGILAW 1937 (PNJ)

Jaswinder Kaur v. State Of Punjab

2009-11-10

K.C.PURI

body2009
Judgment K.C.Puri, J. 1. Jaswinder Kaur-petitioner has filed this petition under Article 227 of the Constitution of India for the issuance of a writ in the nature of habeas corpus for the release of detenues/children namely Mohit Sidhu, aged 6 years son and Ekta son and daughter respectively of deceased Anil Kumar, who are in illegal custody of respondent Nos. 4 and 5. 2. It has been alleged by the petitioner that she was married with Anil Kumar son of respondent Nos. 4 and 5 about nine years ago. Out of this wedlock, one daughter namely Ekta aged about eight years and one son namely Mohit aged about six years took birth and the petitioner was living at Jalandhar with her husband Anil Kumar, who was serving in PAP Jalandhar. Unfortunately Anil Kumar, husband of the petitioner died on 2.3.2009 at Jalandhar after brief illness. The dead body of the deceased was taken to his village chamiari for cremation and the petitioner along with her children/detenues attended the cremation. After the cremation of Anil Kumar, the children of the petitioner were taken by respondent Nos. 4 and 5 forcibly and on demand by the petitioner, she was given merciless beating and thrown out of the house by another sons of respondent Nos. 4 and 5. 3. It has been further alleged that respondent No. 4 who is a retired person and is aged about 65 years and the respondent No. 5 is aged about 60 years. They have three sons and one daughter, who are already married and are living in the village with them. The respondents No. 4 and 5 have illegal eyes over the dues of Anil Kumar-deceased, which have been paid to the petitioner by the Government being government servant. The petitioner being a mother has every right to have the custody of her children but the respondent Nos. 4 and 5 forcibly took the detenues without the consent of the petitioner. 4. On notice, respondent Nos. 1 to 3 have filed reply by way of affidavit of Manjit Singh, PPS Deputy Superintendent of Police, (R-1), District Jalandhar and took up preliminary objections the Jaswinder Kaur petitioner was married with Anil Kumar. Out of this wedlock, two children were brought up by respondents Nos. 4 and 5, Anil Kumar was serving in the Police Department and he died due to illness. Out of this wedlock, two children were brought up by respondents Nos. 4 and 5, Anil Kumar was serving in the Police Department and he died due to illness. The petitioner came at the time of the cremation of Anil Kumar. The respondent Nos. 4 and 5 have not detained the children illegally but were brought up by the respondent Nos. 4 and 5 being grandparents. Therefore, the petitioner has no cause of action to invoke the jurisdiction of this Court and the present petition is not maintainable and liable to be dismissed on this ground alone. 5. It has been further alleged that no case or inquiry is pending with them. However, the petitioner moved an application earlier to the Senior Superintendent of Police, Jalandhar which was inquired into by the lncharge Women Cell, Jalandhar. Since the matter of the said application was of a civil nature, the same was consigned to the records. The petitioner, has, therefore, no cause of action to array them as party to the present petition. 6. On merits, they denied all the averments and prayed for dismissal of the petition. 7. Respondent Nos. 4 and 5 filed separate reply and took up preliminary objection that the alleged detenues are staying with them since long and they are not in unlawful custody and the present petition is not maintainable. The have already filed petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 (in short - the Act) read with Section 6 of Hindu Minority and Guardian Act, 1956 in short - the Guardian Act) for their appointment as Guardian of minor Ekta and minor Mohit Sidhu. 8. On merits, it has been pleaded that deceased-husband of the petitioner was working in the Punjab Police at Jalandhar. During his life time petitioner was not having good relations with her deceased husband, who fell Seriously ill and he was admitted in the hospital and the petitioner left both the children at the house of the answering respondents before the death of Anil Kumar with the wording that she is breaking the relationship with the family and she Knew that Anil Kumar would not survive. Since them the alleged detenues are residing with the answering respondents and are even going to their school for education. Since them the alleged detenues are residing with the answering respondents and are even going to their school for education. The petitioner came at the cremation of their deceased son but did not bother to stay with them or to know about the welfare of the children. They denied all other allegations levelled in the petition and prayed for dismissal of this petition. 9. I have heard learned counsel for the parties and have gone through the records of the case. 10. Learned counsel for the petitioner has submitted that according to the documents placed on the file, the date of birth of Ekta daughter of the petitioner is 20.8.2000 whereas the date of birth of Mohit son of the petitioner is 25.8.2002. So, both the children are of the age of about 9 and 7 years respectively. The petitioner is mother of both these minors. Petitioner along with her husband and two minor children Ekta and Mohit had been residing at Jalandhar and copy of the ration card in this regard has been placed on the file. Husband of petitioner Anil Kumar, who was employee of the Punjab Police fell seriously ill and consequently he was admitted in the hospital, where he died. The dead body of the deceased was taken to his village Chamiari for cremation. After the cremation of Anil Kumar the children of the petitioner were taken by respondent Nos. 4 and 5 forcibly and she was given merciless beating and thrown out of the house after retaining the custody by respondent Nos. 4 and 5. Respondent No. 4 is a retired person of 65 years of age and respondent No. 5 is aged about 60 years. They have three sons and one daughter, who all are married and are living in the village with respondent Nos. 4 and 5. It is further submitted that due to the dues of Anil Kumar respondent Nos. 4 and 5 have illegally taken into custody the alleged detenues. It is submitted that the writ of habeas corpus is maintainable. The welfare of the minor lies in the custody of the petitioner being mother and natural guardian. 11. Learned counsel for the petitioner has relied upon authority Durgesh Kumar Ahuja v. Vineet Khuarana, 1985(2) RCR (Criminal) 399 and Gurmeet Kaur Batth v. State of Punjab and others, 2009(1) R.C.R.(Civil) 935: 2009(1) RCR (Criminal) 974. 12. The welfare of the minor lies in the custody of the petitioner being mother and natural guardian. 11. Learned counsel for the petitioner has relied upon authority Durgesh Kumar Ahuja v. Vineet Khuarana, 1985(2) RCR (Criminal) 399 and Gurmeet Kaur Batth v. State of Punjab and others, 2009(1) R.C.R.(Civil) 935: 2009(1) RCR (Criminal) 974. 12. In reply to above said arguments, counsel for the respondents has submitted that matter is sub judice before the Guardian Judge, Respondent Nos. 4 and 5 have filed an application for their appointment as guardian of both the minors. It is contended that the petitioner herself has left the coustody of minors at the house of respondent Nos. 4 and 5 much before the death of Anil Kumar with the wording that she is breaking the relations with their family. During the life time of Anil Kumar, petitioner has not good relations with her husband. The children are in the custody of the grandparents- respondent Nos. 4 and 5. The petitioner has taken a wrong stand and that she was thrown out the house by contesting respondents. The answering respondents have no coneern with the amount to be paid to the petitioner on account of death of their son. Mother is class I heir of her deceased son likewise the minor. Contesting respondents have no objection in case the amount of the monor is ordered to be deposited in their names till they attained the age of majority. It is contended that although petitioner is the natural guardian but since she has herself left the minor in the custody of contesting respondents, so the prayer has been made for dismissal of habeas corpus petition. It is contended that in the presence of application under Section 7 and 25 of the Act, the present petition is not maintainable. It is, however, contended that petitioner can seek the interim custody of the children in those proceedings. It is further contended that paramount consideration for interim custody is welfare of the minors and legal rights of the petitioner being natural guardian after death of Anil Kumar is not sufficient to give the custody of the minors to the petitioner. It is submitted that the detenues are studying in the school and being looked after property that the detenues are studying in the school and being looked after property by the contesting respondents. 13. It is submitted that the detenues are studying in the school and being looked after property that the detenues are studying in the school and being looked after property by the contesting respondents. 13. Learned counsel for the respondent has relied upon authorities Ms. Janak Kumari v. R.C. Kotwal 1988(1) RCR (Criminal) 672 (Himachal Pradesh) (D.B.), Deepak Agnihotri v. The Commissioner of Police and Ors., 2009(2) R.C.R.(Civil) 54 : 2009(2) RCR (Criminal) 30 and Sahiba All v. State of Maharastra and other, 2003(4) RCR (Civil) 273. 14. I have carefully examined the contentions raised by both the learned counsel for the parties and with their assistance gone through the records of the case. 15. The first controversy raised in the present writ petition is whether the writ of habeas corpus is maintainable to hand over the custody of the minor children. The answer to that question is in positive. Where the custody of the children has been taken by the other party by force or not in an legal manner in that case, writ of habeas corpus is maintainable and the custody should be resorted to the guardian, keeping in view the welfare of the minors. 16. In Durgesh Kumar Ahujas case (Supre) Delhi High Court has held that writ of habeas corpus is maintainable although alternative remedy under Guardian and Ward Act may be available. 17. Again in Gurmeet Kaur Batths case (Supra), Punjab and Haryana High Court held that mother is the natural guardian can file habeas corpus claiming custody of the child directing the grandmother to produce the child in the Court. Even in authority Janak Kumars case (Supra), Division Bench of Himachal Pradesh High Court, it has been held that writ of habeas corpus to restore the custody is maintainable. 18. In authority Deepak Agnihotris case (Supra), Division Bench of Delhi High Court, which has been relied upon by the respondent, also lays down that writ of habeas corpus lies where one of the parties forcibly or deceitfully snatched a child from the lawful custody of other snatched parties. 19. In authority Sahiba Alis case (supra), the Honble Apex Court has held, where the grandparents have been awarded custody of the minor children in that case writ of habeas corpus does not lie as the matter regarding custody has become final by the Family Court. 19. In authority Sahiba Alis case (supra), the Honble Apex Court has held, where the grandparents have been awarded custody of the minor children in that case writ of habeas corpus does not lie as the matter regarding custody has become final by the Family Court. The said authority is not helpful to the case of the respondents in this case as on the facts of the present case no order regarding custody has been passed by the Family Court or the Guardian Judge, till today. 20. While awarding the custody of the minor welfare of the donors is paramount consideration. The custody can even be handed over to the relatives who is not natural guardian, according to the Hindu Minority and Guardianship Act. 21. Now rebutting to the facts of the present case. 22. Anil Kumar, now deceased husband of the petitioner and the minor children namely Ekta and Mohit were admittedly living at Jalandhar. Copy of Ration Card to that effect has been placed on the file. It is also ho disputed that Anil Kumar died in the hospital after his illness and thereafter the dispute regarding the custody of the minor has arisen. Under Hindu Law, prior to coming into operation, Hindu Minority and Guardianship Act, 1956, the father was the natural guardian of the person and separate property of his minor children and next to him came the mother. 23. Section 6 of the Guardian Act, lays down that the natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in joint family property ) are :- (a) In the case of a boy or unmarried girl the father, and after him the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The mother; provided that custody of the minor son completed the age of five years shall ordinarily be with the mother. 24. The age of minors in the present case is 7 years and 9 years i.e. date birth of Ekta daughter of the petitioner is 20.8.2000 whereas date of birth of Mohit son of the petitioner is 25.8.2002. The mother; provided that custody of the minor son completed the age of five years shall ordinarily be with the mother. 24. The age of minors in the present case is 7 years and 9 years i.e. date birth of Ekta daughter of the petitioner is 20.8.2000 whereas date of birth of Mohit son of the petitioner is 25.8.2002. It is the case of both the parties that at the time of death of Anil Kumar petitioner came to village Chamiari and thereafter children remained at village Chamiari. The case of the petitioner is that she was beaten and was not allowed to take the children, whereas the case of the respondents is that the petitioner voluntarily left the children at village Chamiari. However, this fact is not disputed that prior to death of Anil Kumar the children were residing at Jalandhar along with petitioner and Anil Kumar deceased. Anil Kumar deceased was in job with the Police Department at Jalandhar. Respondent Nos. 4 and 5 have three sons and grandchildren. The present petition, as per record, has been submitted on 14.7.2009 whereas death of Anil Kumar has taken place on 2.3.2009. Chaman Lai-respondent has filed petition under Section 7 and 25 of the Act read with Section 6 of the Guardian Act, for his appointment as guardian of Ekta and Mohit in respect of their person and property. No doubt, the rights of the parties, regarding custody, shall be determined in that petition but considering the whole of the circumstances and keeping in view the fact that minors were in the custody of petitioner and Anil Kumar till 2.3.2009.I am of the considered view that for welfare of the minors, the custody should be handed over to the mother till the decision of application under Section 25 of the Act. 25. In fact respondent Nos. 4 and 5 had deprived of a mother from the custody of minors Ekta and Mohit. So the writ of habeas corpus is maintainable for restoring the custody of the minors to the lawful guardian. Who happened to be the mother of both the monors. However the very the fact that respondents No. 4 and 5 are contesting regarding the custody of the minors. So in my view the grandparents cannot be deprived off to meet the minors. Who happened to be the mother of both the monors. However the very the fact that respondents No. 4 and 5 are contesting regarding the custody of the minors. So in my view the grandparents cannot be deprived off to meet the minors. So till the decision of application under Section 25 and 7 of the Act, it is ordered that respondent Nos. 4 and 5 shall have the right to meet the minors at Jalandhar, the place of residence of the petitioner or at a place agreeable to both the parties on 2nd and 4th Sunday of every month. 26. The minors are stated to be admitted in the school, therefore, respondent Nos. 4 and 5 shall arrange for the school leaving certificates of these minors and petitioner shall admit them in a school of her choice at her place of residence. 27. However, it is made clear that any observation made in the disposal of the present petition may not be construed as an expression of opinion regarding the decision of application under Section 25 and 7 of the Act. 28. Respondent Nos. 4 and 5 shall hand over the custody of the minors to the petitioner within ten days. In case of non-compliance by the respondents, the Guardian Judge shall execute this order at the instance or petitioner. 29. A copy of this judgment be sent to the trial Court for strict complaince.