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2012 DIGILAW 583 (CAL)

In Re: Shah Zabeen Ahmed v. .

2012-07-04

KANWALJIT SINGH AHLUWALIA

body2012
JUDGMENT Kanwaljit Singh Ahluwalia, J. 1. Present revision petition has been filed by Shah Zabeen Ahmed, mother of two minor daughters praying that the custody of the girls be handed over to her as she is the natural guardian. It has been also pleaded in the present petition that the order dated 19th November, 2011, passed by the learned 7th Judicial Magistrate, Alipor, South 24-Parganas, in Complaint Case No. C-10298 of 2011, whereby custody of the minor girls has been handed over to father be set aside. Briefly stated, Shah Zabeen Ahmed was married with Ayaz Ahmed @ Raju on 16th April, 2004, according to Muslim Rites and Custom. It is not disputed that marriage was registered by Muslim Marriage Registrar and Kazi. After marriage, petitioner cohabited as wife with opposite party No. 2 and out of wedlock two daughters were born on 22nd November, 2004, and 2nd March, 2006 respectively. As on today, eldest daughter is less than eight years of age and the younger daughter is six years old. 2. It is alleged in the petition that after the birth of the second girl, petitioner was mentally and physically tortured by the opposite party Nos. 2 and 3. Further it has been alleged that she was physically assaulted. It has been specifically stated in para 4 of the revision petition that opposite party No. 2 compelled to make petitioner sign on some blank papers and on protest, she was mercilessly beaten. A case under section 498A/406/323/325/120B/34 IPC had been registered against the opposite party No. 2 at Karaya Police Station. 3. Petitioner had lodged a complaint under section 97 Cr.PC praying for issuance of search warrant for recovery of two minor girls who were illegally confined by opposite party No. 2, herein. It is stated in the above said complaint, such warrant was issued and the girls were produced before the Court below. The Court below rejected the prayer of the petitioner on the ground that the girls had been living with their father for the last one year and there was nothing on record that the father Ayaz Ahmed was incapacitated to give proper care and protection to both the girls. It was further stated that the girls whose custody was sought for are the students of a school. During the course of arguments it is informed that girls are studying in Class-I and Class-II. 4. It was further stated that the girls whose custody was sought for are the students of a school. During the course of arguments it is informed that girls are studying in Class-I and Class-II. 4. Sri Manjeet Singh, counsel for the opposite party No. 2, has stated that the petitioner herself signed the documents and received Rs. 2,20,000/- (Rupees two lacs twenty thousand only) and agreed to part away with the custody of the daughters. 5. This assertion has been vehemently denied by the counsel for the petitioner. It is further stated that the documents relied by the opposite party No. 2 are fake and forged documents. 6. In Jasbir Kaur vs. The State of Punjab & Ors., Criminal Writ Petition No. 2606 of 2011 decided on 19.12.2011, I had taken a view that mother is a natural guardian and can file a writ for Habeas Corpus to claim custody of the children. It will be apposite here to reproduce the following portion of the judgment in which reliance was placed upon Ruchi Majoo vs. Sanjeev Majoo 2011 (3) RCR 122 (SC). In Jasbir Kaur's case it was held as under: This Court, in Gurmeet Kaur Batth vs. State of Punjab and Others, 2009 (1) RCR 974, has held that mother, being a natural guardian, can file a petition for issuance of a writ in the nature of Habeas Corpus and claim custody of the child. To arrive at the above said conclusion, in the above said case, this Court has relied upon various judgments of Hon'ble the Apex Court and especially the judgment rendered in Marilynn Ainat Dhllion Gilmore alias Anita Dhillon vs. Marget Nijjar 1983 (1) RCR 396, wherein, in its para No. 17, it was observed as under:- 17. Children need the love and care of both parents. If they cannot get it from 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 resort. 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. 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 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. Recently, the view taken by this Court in Gurmeet Kaur Batth's case (supra) has received approval of Hon'ble the Apex Court in Ruch Majoo vs. Sanjeev Majoo 2011 (3) RCR 122, wherein it was held as under:- 37. We do not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion "state the law Criminal Writ differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the Court to determine mutual rights and obligation of the parties, including the question whether a Court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in Smt. Surinder Kaur Sandhu vs. Harbax Siongh Sandhu and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardian and Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardian and Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42 , Sarita Sharma's case (supra), vs. Ravi Chandran's case (supra), Shilpa Aggarwal's case (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody proceedings launched under the Guardian and Wards Act. Proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody (emphasis supplied). The Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran's & Shilpa Aggarwal's cases (supra) or refuse to do so as was the position in Sarita Sharma's case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arise. The Writ Court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorial jurisdiction. 7. In view of the settled legal position, this Court, while exercising its writ jurisdiction, wherein a prayer has been made for issuance of a writ, in the nature of habeas corpus, can determine as to who, amongst the parents, is entitled to custody of the child taking his welfare to be a paramount consideration. 8. 7. In view of the settled legal position, this Court, while exercising its writ jurisdiction, wherein a prayer has been made for issuance of a writ, in the nature of habeas corpus, can determine as to who, amongst the parents, is entitled to custody of the child taking his welfare to be a paramount consideration. 8. This Court is of a firm belief that the petitioner, being a mother, is a natural guardian of the children and she can rear them better than the grandmother and father. As a result, the revision petition is accepted. The impugned order is set aside. Petitioner is held entitled to the custody of the children. However, it is ordered that opposite party No. 2, being the father of the children, will be entitled to visiting rights. Furthermore, he may also, if advised, approach the Court under the Guardian and Wards Act, 1890, for determination of rights between the parents as who is entitled to the custody of the children. In case such an application is filed by the opposite party No. 2, father, before the appropriate Court, the same shall be decided within a period of six months. Needless to say, the said Court, considering the evidence adduced by the parties, shall determine as to who is entitled to custody of the child and with whom welfare of the child shall be more secure. In view of the disposal of the main revision petition, the application being CRAN 1353 of 2012 also stands disposed of. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.