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2010 DIGILAW 2762 (PNJ)

Sukhwinder Kaur v. State Of Punjab

2010-09-27

T.P.S.MANN

body2010
Judgment T.P.S.Mann, J. 1. According to the petitioner, Sehajpreet Singh was born to her from the loins of respondent No.4 on 30.11.2006. The petitioner has been suffering from a tumor in her abdomen. On 23.6.2010 she told her husband that the medicines prescribed by Dr. Han Singh Hans from whom she was getting treatment were finished and asked him to purchase the medicines from the market. On this, her husband gave her a capsule by telling her that it was a substitute to the medicines prescribed to her by her doctor. The petitioner consumed the capsule given to her by her husband and thereafter became unconscious. On regaining consciousness, she found herself in the hospital. Instead of looking after the petitioner, respondent No.4 filed a complaint (Annexure P-2) before the Women Cell and levelled false allegations against the petitioner that it was she, who wanted to kill herself and her son by consuming sleeping tablets. The petitioner also made a statement (Annexure P-3) before the Women Cell and stated as to what had happened with her on 23.6.2010 and about her subsequent admission in the hospital at Badhni where she was treated for two days. Respondent No.4 thereafter took the petitioner to her parental home by making a false promise to bring her 31/2 years old son on the next day but despite the same the custody of the minor son was not given to the petitioner. A Panchayat was convened where the petitioner and respondent No.4 besides others were present. After hearing the parties, the Panchayat, vide writing Annexure P- 4, instructed respondent No.4 to hand over the custody of the child to the petitioner. However, on 26.6.2010 respondent No.4 refused to hand over the child to the petitioner by taking the stand that the petitioner was free to take the custody of the child only after obtaining an order from the Court. The petitioner has been cheated by respondent No.4, who after promising to return the minor son of the parties to the petitioner, backtracked from the same. Therefore, prayer has been made for issuance of a writ in the nature of habeas corpus so as to secure the release of the detenu, namely, Sehajpreet Singh, minor son of the parties, from respondent No.4. Learned counsel for the petitioner has submitted that Sehajpreet Singh has yet to complete 4th year of his life. Therefore, prayer has been made for issuance of a writ in the nature of habeas corpus so as to secure the release of the detenu, namely, Sehajpreet Singh, minor son of the parties, from respondent No.4. Learned counsel for the petitioner has submitted that Sehajpreet Singh has yet to complete 4th year of his life. The welfare of such a young child lies in his being in the company of the petitioner who is none else than his mother. The petitioner is also willing to move a petition under Section 25 of the Guardian and Wards Act but as those proceedings are likely tcrtake long, the interim custody of the child be handed over to the petitioner especially in view of the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, as per which the custody of a minor, who has not completed the age of five yeas shall ordinarily be with the mother. 2. Learned counsel for respondent No.4 has submitted that the petitioner is trying to misuse process of the Court by filing the present petition. She has not stated in the petition that she had no other alternative or efficacious remedy except to file the present petition. It has further been submitted that respondent No.4 has already filed a civil suit claiming declaration that he is the lawful guardian of Sehajpreet Singh being his father and the petitioner, who is impleaded as defendant therein be restrained from forcibly taking the custody of the child. It has, however, been clarified that while filing the suit, respondent No.4 has given the name of the child as Jabarjang Singh whereas according to the petitioner the name of her son is Sehajpreet Singh but Jabarjang Singh and Sehajpreet Singh are one and the same child. Learned counsel for respondent No.4 has relied upon the judgment of this Court in Khem Singh v Chiranjiv Singh 2010(3) Law Herald (P&H) 1919, wherein it was held that the Court while assessing the suitability of custody of minor has to take into consideration his welfare and not the rights of parties under the statute. 3. It is not in dispute that the child in question was born on 30.11.2006. As of date, he is less than four years of age. 3. It is not in dispute that the child in question was born on 30.11.2006. As of date, he is less than four years of age. Under Section 6 (a) of the Hindu Minority & Guardianship Act, 1956, the natural guardian of a Hindu minor shall be the father and after Mm the mother provided that the custody of a minor, who has not completed five years shall ordinarily be with the mother. Though respondent No.4 has the first right to be declared as a guardian of the minor child yet the child being less than five years of age, shall ordinarily live with the mother. In the case of Khem Singh (supra) the Court was dealing with the custody of a child who was aged 81/2 years. Therefore, the aforementioned judgment has no direct applicability to the present case. 4. The petitioner has expressed her willingness to apply under Section 25 of the Guardian and Wards Act for being declared as guardian of the minor child and for obtaining his custody. However, it has been submitted on behalf of the petitioner that the interim custody of the child be granted to the petitioner as that would be in the best interest of the child, who is less than four years of age as at present. 5. Learned counsel for respondent No.4 has opposed the payer made on behalf of the petitioner by stating that no such direction can be issued by this Court as that would render his suit infructuous. 6. After hearing learned counsel for the parties, the Court is of the view that the interim-custody of the minor child is required to be handed over to the petitioner, instead of respondent No.4 for the sole reason that the child in question is less than four years of age and the paramount consideration is the welfare of the child which would be best looked after by the petitioner than respondent No.4. 7. Instead of approaching the appropriate forum under Section 25 of the Guardian and Wards Act for keeping the child in his custody, respondent No.4 has opted to file a civil suit. An attempt has been made by him to abuse process of the Court by filing the said civil suit. 8. 7. Instead of approaching the appropriate forum under Section 25 of the Guardian and Wards Act for keeping the child in his custody, respondent No.4 has opted to file a civil suit. An attempt has been made by him to abuse process of the Court by filing the said civil suit. 8. Resultantly, the petition is disposed of with a direction to the petitioner to file a petition under Section 25 of the Guardian and Wards Act before the appropriate forum within a fortnight from today. The said Court shall summon the father of the child and after securing his presence, completion of pleadings and settlement of issues, complete the recording of the evidence within a period of three months from the date of appearance of the father of the child. Final orders be passed within two weeks of the conclusion of the evidence. From today onwards till the decision of the aforementioned petition under Section 25 of the Guardian and Wards Act, the interim custody of the child shall be kept by the petitioner. It is, however, made clear that in case the petitioner does not file the aforementioned petition under Section 25 of the Act within the stipulated period of time, respondent No.4 shall be at liberty to approach this Court by filing appropriate application. 9. Nothing stated above shall be construed as an expression on the merits of respective cases of the parties. The appropriate Court while deciding the petition under Section 25 of the Guardian and Wards Act shall confine to the evidence to be led by the parties before the said Court.