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2021 DIGILAW 602 (RAJ)

Rashmi Sharma v. State of Rajasthan

2021-03-15

CHANDRA KUMAR SONGARA, PRAKASH GUPTA

body2021
ORDER : Prakash Gupta, J. 1. This habeas corpus petition has been filed by the petitioner (wife) seeking custody of her minor son Dhawaj Sharma alleging him to be in the illegal custody of respondent No. 5 (husband). 2. Vide order dated 18.1.2021 passed by this Court, both the parties were directed to remain present before this Court along with their minor son Dhawaj Sharma. Pursuant thereto, both the parties appeared before this Court along with the minor son Dhawaj Sharma. Earnest endeavor was made to secure a reconciliation through interactions with the parents and the child. However, all efforts of reconciliation having failed, the petition is being disposed of on merits. 3. Learned counsel for the petitioner submits that on 10.12.2013, the marriage of petitioner and respondent No. 5 was solemnized according to Hindu rites and customs. Out of their wedlock, a son Dhawaj Sharma born on 9.1.2016 and on 20.7.2020 when the habeas corpus petition was filed, Dhawaj Sharma was about 4 ½ years old. He further submits that thereafter some matrimonial disputes arose between the petitioner and respondent No. 5. In December, 2018, the petitioner came to Bharatpur upon her uncle's death, but thereafter she was not allowed to enter her matrimonial house. In this way, the petitioner along with her minor son were deserted by the respondent No. 5. On 10.7.2020 when the petitioner was sitting at her parental house with her minor son Dhawaj Sharma, a black coloured car came outside the gate, Respondent No. 5 got out of the aforementioned vehicle, stormed inside the house and took the child away from the legal custody of the petitioner. She immediately informed the police in this regard, but the respondent No. 5 could not be caught. Further, a complaint was also submitted by the petitioner in Police Station, Udhyog Nagar, Bharatpur. He further submits that minor son of the petitioner has been in the illegal custody of respondent No. 5. Custody of minor son Dhawaj Sharma could have been taken only by due process of law. He has drawn the attention of this Court towards the provisions of the Guardians and Wards Act, 1890 and submits that mother being a natural guardian, custody of minor child aged about 5 years, shall ordinarily be with the mother in view of the provisions of the Act. 4. He has drawn the attention of this Court towards the provisions of the Guardians and Wards Act, 1890 and submits that mother being a natural guardian, custody of minor child aged about 5 years, shall ordinarily be with the mother in view of the provisions of the Act. 4. On the other hand, learned counsel for the respondent No. 5 submits that the child has completed 5 years of age. As per the provisions of Guardians and Wards Act, father is the first natural guardian. He further submits that the petitioner went to her parental house at Bharatpur in December, 2018 upon her uncle's death, but on 15.12.2018 she refused to return from Bharatpur. 5. He further submits that it is wrong to say that the minor son was in illegal custody of the respondent No. 5. In-fact, the petitioner handed over the custody of minor son to him on her own accord. He has relied upon the judgment passed by the Hon'ble Apex Court in the case of Prateek Gupta v. Shilpi Gupta reported in (2018) 2 SCC 309 and contended that custody of biological father can neither said to be illegal nor unlawful. He has further relied upon the judgment of the Hon'ble Apex Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor reported in (1981) 3 SCC 92 , and contended that this habeas corpus petition is not maintainable and liable to be dismissed. He also places reliance on the judgment of the Hon'ble Apex Court in the case of Chandrakala v. Vipin Menon reported in (1993) 2 SCC 6 and contended that father being the natural guardian cannot be accused of kidnapping the child. 6. He further submits that from 2016 to 2018, the child was ordinarily residing in Ghaziabad. He has already filed a petition for custody of the child under Guardians and Wards Act, in which notices have already been issued by the Court of Chief Judge of Family Court, Ghaziabad and therefore, in terms of Section 14 of the Guardians and Wards Act, 1890, this Court has no jurisdiction to entertain the petition. 7. Heard. Considered. 8. After having heard the parties and perused the material available on record, three issues arise for consideration before this court. (i) Whether or not the instant Habeas Corpus Petition is maintainable? 7. Heard. Considered. 8. After having heard the parties and perused the material available on record, three issues arise for consideration before this court. (i) Whether or not the instant Habeas Corpus Petition is maintainable? (ii) Whether the child Dhawaj Sharma can said to be in "illegal custody" of Respondent No. 5, in the facts and circumstances of the case? (iii) Whether or not the custody of the child Dhawaj Sharma ought to be given to the petitioner? 9. We want to mention at this stage that since the instant petition is Habeas Corpus Petition, we are not deciding the issue regarding the entitlement of the custody of the minor child Dhawaj Sharma since that issue is sub-judice before a court of competent jurisdiction. In Re: Issue No. 1 10. As far as the first issue is concerned, we do not need to delve into it since the position of law is already settled in that regard. The Hon'ble Supreme Court in the case of Yashita Sahu v. State of Rajasthan & Ors. reported in 2020 AIR (SC) 577 has held as under: "It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw & Ors., (1987) 1 SCC 42 , Nithya Anand Raghavan v. State (NCT of Delhi) & Anr., (2017) 8 SCC 454 and Lahari Sakhamuri vs. Sobhan Kodali, (2019) 7 SCC 311 among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant-wife that the writ petition before the High Court of Rajasthan was not maintainable." 11. Thus, in view of the aforementioned judgment, the instant habeas corpus petition for custody of minor child is held maintainable. The first issue is decided in favour of the petitioner-Wife. In Re: Issue No. 2 12. It is an admitted fact that son Dhawaj Sharma was born out of the wedlock of petitioner and respondent No. 5 and his date of birth is 9.1.2016. The first issue is decided in favour of the petitioner-Wife. In Re: Issue No. 2 12. It is an admitted fact that son Dhawaj Sharma was born out of the wedlock of petitioner and respondent No. 5 and his date of birth is 9.1.2016. On 20.7.2020 when the habeas corpus petition was filed, Dhawaj Sharma was about 4 ½ years old i.e. less than 5 years of age. 13. In para 3 of the petition, the petitioner alleged that on 10.7.2020 when she was sitting at her parental house with her son, a black vehicle came there and her husband came out from car and snatched her son and ran away. In this regard, the petitioner submitted a complaint on the same day i.e. 10.7.2020 at Police Station, Bharatpur and endorsement thereon was made by the police authorities. In the reply filed by the State, it has been stated that after Dhawaj Sharma was allegedly taken away from by Sachin Sharma (Respondent No. 5 herein) family members of Rashmi Sharma informed the police after one hour and by that time, he (Sachin Sharma) had left District Bharatpur and entered into the State of UP. Thus, from the material available on record, we cannot come to the conclusion as to whether Dhawaj Sharma was actually illegally taken away from the custody of the petitioner-mother by the father (respondent No. 5). While it is admitted that a complaint was made by the petitioner-wife before the concerned police station, from the reply filed on behalf of the state, it is not clear as to whether a prima facie case was found against respondent No. 5-father. Merely because the petitioner-wife had submitted a complaint before the concerned Police Station, we cannot assume that the child was actually illegally taken away from the lawful custody of the petitioner-wife. Further, there was a delay of about one week in filing the instant Habeas Corpus Petition for which no satisfactory explanation has been furnished by the petitioner-wife. It is also noticeable that the state in its reply has stated that after the complaint was submitted by the petitioner-wife on 10.07.2020 Shri Beedha Ram, ASI reached the house of Respondent No. 5-father along with other officials and tried to sort out the differences between the two spouses. However, all attempts at reconciliation having failed, the petitioner-wife orally consented that the custody would be with respondent No. 5-Father. However, all attempts at reconciliation having failed, the petitioner-wife orally consented that the custody would be with respondent No. 5-Father. Moreover, an application for determining the issue regarding the permanent custody of the child Dhawaj Sharma has already been filed by respondent No. 5-Father, in which notices have already been issued and the instant petition has been filed by the petitioner-wife after the said application was preferred by the Respondent No. 5-Father. Since, the question as to whether the child was taken away illegally by Respondent No. 5 is a disputed question of fact, the same cannot be adjudicated in the instant petition and ends of justice would be served if the application filed by Respondent No. 5-Father is decided by the court of competent jurisdiction. 14. Thus, we are of the opinion that mere submission of a complaint before the Police by the Petitioner-Wife, alleging that the son illegally taken away by respondent No. 5-Father is not sufficient for this court to believe that the child was abducted/taken away unlawfully, more so when the petitioner-Wife is said to have given her oral consent to the Police to let the child stay with the Father-Respondent No. 5, as evident from the reply filed by the state, to which no rejoinder/counter has been file by the Petitioner-Wife. In Re Issue No. 3 15. This brings us to the third and last issue. While it is true that powers of the High Courts under Article 226 of the Constitution are wide and must be invoked to secure the ends of justice and the issue regarding custody can be determined if the facts and circumstances of the case so warrant, we are of the opinion that since the custody of the child is admittedly with Respondent No. 5-Father and no material has been brought on record, persuasive and convincing enough to take the that immediate restoration of the custody of the child is warranted (even if we assume that the custody of the child was with the Petitioner-Wife), we do not think it appropriate to direct respondent No. 5-Father to give the custody of the Petitioner-Wife. Even though as per the provisions of the Guardians and Wards Act, custody of a child below the age of five years has to be with the mother ordinarily, we are of the opinion that since respondent No. 5-Father is a natural and the child is now above the age of five years, we are not inclined to accede to the prayer made by the Petitioner-Wife. However, since the court also has to keep into consideration the best interest of the child and the warmth and affection of a mother is equally important for the emotional and intellectual development of any child, we deem it appropriate to grant visitation rights to the petitioner-wife. The petitioner-wife would be entitled to meet the child Dhawaj Sharma on the weekends and we also direct the father-respondent No. 5 to bear the expenses of travelling and her accommodation when she comes to meet the child and till the times the issue regarding the permanent custody of the child is finally adjudicated by the Chief Judge of Family Court, Ghaziabad. 16. However, it is made clear that the observations made here-in-above are limited to the extent of deciding the present habeas corpus petition. 17. Accordingly, the instant Habeas Corpus Petition is disposed of in the above terms.