Pricella Prim Vs. Bashir Masih

Pricella Prim vs Bashir Masih

Disposition Petition dismissed Court Punjab and Haryana Decided Oct 05, 1994

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Citation: sooperkanoon.com/617824
Court: Punjab and Haryana High Court
Judge: H.S. Bedi, J.
Decided On: Oct 05, 1994
Case Number: Criminal Writ Petition No. 107 of 1994
Subject: Family
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Family
Outcome / disposition: Petition dismissed
Acts & sections: Guardians and Wards Act, 1890 - Sections 25; Constitution of India - Article 226

Parties & Advocates

Appellant / Petitioner

Pricella Prim

Advocate H.S. Bakshi, Adv.

Respondent

Bashir Masih

Advocate R.N. Moudgil, Adv.

Legal References

Acts: Guardians and Wards Act, 1890 - Sections 25; Constitution of India - Article 226
Cases Referred: Kiran Rani v. Krishan Kumar and Ors.
Reported In: II(1995)DMC301

Excerpt

.....original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....the same. it is the admitted case that no further application under that act, has so far been filed.2. notice of the present petition was given to the respondents and a reply has been filed in response thereto while denying the allegations on facts, the respondents have also taken a preliminary plea that a writ of habeas corpus seeking release of the child javed was not the proper remedy as the petitioner ought to have moved the guardian court, more particularly as she had already done so at ludhiana.3. mr. bakshi, learned counsel for the petitioner has urged in response to the preliminary plea that the writ of habeas corpus was, in fact, the only efficacious remedy available to the petitioner and in a writ of habeas corpus, the question of detention of a minor child be gone into. in support of this argument, has cited smt. usha devi and anr. v. kailash narain dixit and ors., air 1978 mp 24, km. sunita and anr. v. smt. shyam kali, air 1982 allahabad 1, and dr. mrs. veena kapoor v. varinder kumar kapoor, air 1982 sc 792.4. mr. moudgil, learned counsel for the respondent has controverted this plea and has placed reliance on dr. mrs. veena kapoor case (supra) and in addition on kiran rani v. krishan kumar and ors., 1994 (2) plr 721.5. after hearing the learned counsel for the parties, i find no merit in this petition. there can be hardly any doubt that a writ of habeas corpus under article 226 of the constitution of india would lie in every case of illegal or forced detention but this principle has to be applied to the facts of each case. admittedly, the child javed has been living with the respondents since the year 1988 after the petitioner was allegedly turned out of the house. i had also talked to the child in chambers and it appears to me that he is fully aware of his surroundings and categorically stated that he wished to remain with the respondents. mr. bakshi's argument is that the will of the child should not determine the matter but it was the welfare.....

Full Judgment

H.S. Bedi, J.

1. The petitioner Pricella Prim, has sought the custody of her son Javed @ Kiki aged 10 years, who is stated to be in the illegal custody of his father's brother and sister namely Bashir Masih and Mills Alice respondents in this case. The case of the petitioner is that the marriage between her and Nazar Masih took place in the year 1983 and the parties lived together at Tanda Urmur till 1988. It is alleged that Nazar Masih was admitted in Christian Medical Hospital, Ludhiana in June, 1988 and was discharged after a period of 30 days after having been treated for a disease which had led to damage of the brain and it was after his return back to his home in August, 1988, that the petitioner was allegedly turned out at the instance of the respondent and the child Javed was retained by them and the father. The petitioner, thereafter, filed an application under Section 25 of the Guardians and Wards Act, in the Guardian Court at Ludhiana, but on November 18, 1991, the Judge returned the application to the petitioner for presentation in the proper Court holding that the Court at Ludhiana had no territorial jurisdiction to entertain the same. It is the admitted case that no further application under that Act, has so far been filed.

2. Notice of the present petition was given to the respondents and a reply has been filed in response thereto while denying the allegations on facts, the respondents have also taken a preliminary plea that a writ of habeas corpus seeking release of the child Javed was not the proper remedy as the petitioner ought to have moved the Guardian Court, more particularly as she had already done so at Ludhiana.

3. Mr. Bakshi, learned Counsel for the petitioner has urged in response to the preliminary plea that the writ of habeas corpus was, in fact, the only efficacious remedy available to the petitioner and in a writ of habeas corpus, the question of detention of a minor child be gone into. In support of this argument, has cited Smt. Usha Devi and Anr. v. Kailash Narain Dixit and Ors., AIR 1978 MP 24, Km. Sunita and Anr. v. Smt. Shyam Kali, AIR 1982 Allahabad 1, and Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, AIR 1982 SC 792.

4. Mr. Moudgil, learned Counsel for the respondent has controverted this plea and has placed reliance on Dr. Mrs. Veena Kapoor case (supra) and in addition on Kiran Rani v. Krishan Kumar and Ors., 1994 (2) PLR 721.

5. After hearing the learned Counsel for the parties, I find no merit in this petition. There can be hardly any doubt that a writ of habeas corpus under Article 226 of the Constitution of India would lie in every case of illegal or forced detention but this principle has to be applied to the facts of each case. Admittedly, the child Javed has been living with the respondents since the year 1988 after the petitioner was allegedly turned out of the house. I had also talked to the child in Chambers and it appears to me that he is fully aware of his surroundings and categorically stated that he wished to remain with the respondents. Mr. Bakshi's argument is that the Will of the child should not determine the matter but it was the welfare of the child that must primarily be taken into consideration. There is no quarrel with the proposition, but I am of the view that this cannot be possible in this writ petition. The judgments cited by the learned Counsel for the petitioner as a matter of fact go against him. In these cases, it has been held that the right of the parties to the custody of the minor child is not the determining factor in such matters as it is the welfare of the child which is of primary concern. In Dr. (Mrs.) Veena Kapoor's case, the Supreme Court declined to give a finding as to which of the two parties ought to be given the custody of the minor and for that purpose had sought a report from the District Judge, concerned. I, therefore, deem it appropriate that should the petitioner seek the custody of Javed, the proper remedy would be under the Guardians and Wards Act. The present petition is, therefore, without any merit and the same is dismissed. However, should the petitioner file an application before under the Guardians and Wards Act, that Court will ensure that the same is decided within six months from the date of its filing.

Same Court & Year Punjab and Haryana · 1994 Same Parties Pricella Prim vs Bashir Masih Same Subject Family Same Judge H.S. Bedi, J. Acts & Sections Guardians and Wards Act, 1890 - Sections 25; Constitution of ...

Family