J.D. Jain, J.
(1) This is a writ petition under Article 226 of the Constitution of India praying for issuance of a writ, order or direction in the nature of babe as corpus directing the respondents to produce the petiioner's infant daughter Deepam in Court and make her over to the custody of the petitioner.
(2) The controversy between the parties lies in a narrow compass. It arises out of tussle for the custody of Miss Deepam, an infant daughter aged about a year of the petitioner. It is common ground between the parties that Smt. Meenakshi Ahuja, daughter of Smt. Sudershan Khurana, respondent No. 2 and sister of Sh. Vineet Khurana, respondent No. 1 was married to the petitioner on 25th of April 1983. Miss Deepam was born to her on 20th January 1984 but as misfortune would have it, Smt. Meenakshi Ahuja died on 28th January 1984 leaving behind her husband and her infant daughter as her only legal heirs. The case of the petitioner is that in order to show sympathy within the respondents shifted to his residence at 1-B/15, Ramesh Nagar, New Delhi, on 10th February 1984. They were earlier residing at 169-D, Kamla Nagar. The petitioner's mother, who was staying with his (petitioner's) brothers and sisters at Sonepat too shifted to Delhi. However, in the last week of June 1984 the respondents shifted to their own house at A-4, Phase 1, Naraina Industrial Area, New Delhi. Since the petitioner's mother had gone to Sonepat for a few days, he also shifted to the new house of the respondents at their request for some days. However, the behavior of the respondents towards him became rude and unpleasant. So, on 11th July 1984 he shifted back to his own house but he was not permitted to take his child. On the same day, the respondents came to his house Along with some relatives and friends and coerced him to sign some papers to the effect that he would execute an adoption deed in respect of his daughter in favor of respondent 51 No. 2. Subsequently the respondents brought a deed of adoption for being signed by him but he declined to do so. He then tried to get back has child through the mediation of his relatives and friends but in vain. Faced with this situation he lodged a report with Police Station Naraina on 17th August 1984 to the effect that his daughter was being held by the respondents against his wishes. Consequently, respondent No. 1 was summoned to Police Station on 19th August 1984 and a compromise was arrived at between the parties, copy Ex. Pi, under which the respondents agreed to band over the custody of the child to him at the Police Station on 21st August 1984 while the petitioner would return various gifts and jewellery given by the respondents at the time of petitioners marriage. However, the respondents did not turn up at the Police Station on 21st August 1984 as settled and they did not make over the custody of the child to him. He sent a telegram to the respondents on 24th August 1984 (copy Ex. P3) requesting them to return his daughter but they paid no heed to it. It is further alleged that the respondents have repeatedly attempted to assault the petitioner and, thereforee, he is residing away from his house, at W-15, Green Park which has been temporarily allotted to him. Moreover, the respondents are not permitting the petitioner to meet his child much less to hand over her custody to him. Since respondent No. 2 is employed as a headmistress in a school and respondent No. I is a businessman, they are away from their house during day time and the child is left to the care of Mrs. Madhu Khurana, wife of respondent No. 1, the whole day. Not only that, they were not best owing proper care and affection upon the child with the result that her upbringing and growth may be hampered. He asserts that he being the natural guardian of his daughter is entitled to her custody to the exclusion of everyone else including the respondents and as such his daughter is being held in lawful custody by the respondents.
(3) The petition is resisted by the respondents, who assert that they never shifted to the residence of the petitioner at 1-B/51, Ramesh Nagar; instead the petitioner himself shifted to their house which was adjacent to the house of the petitioner Along with his infant daughter. However, they admit that they shifted to their own house at A-4, Phase I, Naraina Industrial Area, in the month of June 1984. They deny that the mother of the petitioner ever shifted to Delhi or started residing with the petitioner. They assert that in fact the mother of the petitioner was permanently living at Sonepat with her grown up daughters. Indeed, their whole stand is that the petitioner had been living with them as Ghar Jawai (i.e. a son-in-law permanently living with his in-laws as a member of their family). They deny that their behavior towards the petitioner became rude but admitted that he shifted back to his own house on 11th July 1981. According to them, they have been looking after the welfare and up bringing of the child because the petitioner expressed his inability to keep the child being all alone at Delhi and his mother not at all bothering about the care of the child. It was on that account that on 11th July 1984 the petitioner gave an undertaking in writing (copy Ex. R 1) to give Miss Deepam in adoption to respondent No. 2 and it was further agreed that the jewellery etc. which had been entrusted to Shri Subhash Rai of Syndicate Bank, IN a Branch, would be give to him after completion of all formalities of adoption in accordance with law. Correspondingly, respondent No. 2 also gave an undertaking in writing to adopt the child and to return the jewellery etc. to the petitioner on his giving the child in adoption to her. In other words, the precise case of the respondents is that they had been bestowing all love and affection on and looking after the proper upbringing and care of the child in view of the settlement arrived at between the parties. They deny that document Ex. P1 or R1 was executed by the petitioner under any threat, coercion, pressure or undue influence exercised by them. They further deny that the child was held as a hostage in illegal detention by them in order to bargain with the petitioner and force him to return the wedding gifts. The respondents instituted even a civil suit seeking an injunction to restrain the petitioner from forcibly taking away the child from their custody. In fact, the child has developed lot of affection and love for them and is living with them quite happily.
(4) I may, at the outset, dispose of the challenge of the respondents to the maintainability of the writ petition itself, which is an objection of a preliminary nature, on the ground that other equally efficacious remedy being available to the petitioner this writ is not maintainable. No doubt, it is open to the petitioner to take recourse to the provisions contained in the Guardians and Wards Act, 1890, especially section 25 thereof for obtaining his child's custody in a case like the present but that will not debar this Court from entertaining a writ of habeas corpus where it finds that the life or liberty of the ward is involved and he/she is being detained or kept in custody unlawfully by the respondents. In England the law is firmly established that in issuing a writ of habeas corpus the court has power in the case of infants to direct its custody to be placed with a certain person. So, a parent/guardian or other person who is legally entitled to the custody of a minor can regain that custody, when wrongfully deprived of it, by means of a writ of habeas corpus. For the purpose of issue of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. (See 'Halsbury's Laws of England,' 4th Ed..Volume 11. Para 1469 at page 779). In R. v. Clarke, (1857)7 El Rl 186, Lord Campbell, C.J., said at page 193 :
'But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian ; and when delivered to him, the child is supposed to be set at liberty.'
This passage was quoted with approval by the Supreme Court in Gohar Begum v. Suggi alias Nazma Begum and others, Air 1963 Sc 93 Adverting to section 491, Code of Criminal Procedure (1898) their Lordships observed:
'SECTION 491 is expressly concerned with directions of the nature of a habeas corpus. The English principles applicable to the issue of a writ of habeas corpus, thereforee, apply here. In fact the courts in our country have always exercised the power to direct under section 491 in a fit case that the custody of an infant be delivered to the applicant.'
Their Lordships further observed that :
'We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under section 491.'
Only recently a Division Bench of this Court comprising Prakash Narain, C.J. and S.S. Chadha, J. had an occasion in Smt. Nandita Virmani v. Shri Raman Virmani, 1982 Plr (Delhi) 56, to deal with this question. Said their Lordships :
'...ARTICLE 226 of the Constitution empowers the High Courts to interfere, wherever there is injustice or oppression of flouting of basic rights and statutory or even social imperatives. In our considered view it cannot be said as a broad proposition that because of the existence of the remedy under the Guardianship and Wards Act or the Hindu Minority and Guardianship Act the remedy under Article 226 of the Constitution is not available to secure custody of a minor child.'
In view of these authoritative pronouncements on the point, the objection raised by the respondents is not at all tenable. Hence, I proceed to decide the writ petition on merits.
(5) Under Hindu Law prior to the coming into operation of the Hindu Minority and Guardiansip Act, 1956 (hereinafter referred to as 'the Act') the father was the natural guardian of the person and of the separate property of his minor children and next to him came the mother. Section 6 of the Act lays down that:
'6.The natural guardians of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are : (a) in the case of a boy or an 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 ; (b) X X X X (c) X X X X.'
Thus, the position under Hindu Law as it existed before the enactment of the Act and under this section is virtually the same. In other words, when the father is alive, he is normally the natural guardian of his minor son or unmarried daughter and it is only after him that the mother becomes the natural guardian. However, an exception is provided in the case of minor child below the age of five years where the custody of the minor shall ordinarily be with the mother even though the father is alive. We are not concerned with this aspect of the matter in the instant case because the whole controversy leading to this petition arose after the unfortunate death of the mother of baby Deepam. Thus, there can be no shadow of doubt that the petitioner in the instant case is the natural guardian of his infant daughter and normally he would be entitled to her custody. This legal position clearly emerges further from the interdict contained in section 19 of the Guardians and Wards Act which prohibits a court from appointing or declaring guardian of a person during the life time of the minor's father unless in the opinion of the court he is unfit to be his/her guardian. However, as shall be presently seen in spite of section 19, while appointing or declaring guardian the court, in case of Hindus, will have to take into consideration the provisions of section 13 of the Act. It reads as under ;
'13(1)In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.'
Thus the welfare of the minor would be the prime consideration for the court while appointing or declaring any person as a guardian of a minor. This provision is in conformity with the general principle of law contained in section 17 of the Guardians and Wards Act which states the matters to be considered by the court in appointing guardians. Under section 17(2) in considering what will be for the welfare of the minor the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of the deceased parent and any existing or previous relations of the proposed guardian with the minor or his property, Thus, the court has to construe these provisions harmoniously with those contained in section 19 of the Guardians and Wards Act and the welfare of the minor must be supreme consideration which will weigh with the court while deciding the question of custody of the minor.
(6) This conclusion is further fortified on a reading of sections 2 and 5 of the Act. Section 2 clarifies that the provisions thereof are supplemental to, and not, save as expressly provided therein, in derogation of the Guardians and Wards Act. Section 5, however, gives over-riding effect to the provisions of the Act and in terms lays down that in respect of matters dealt with in the Act it seeks to repeal all existing law on those matters whether in the shape of enactments or otherwise which may be inconsistent with it.
(7) Indeed, in a writ of habeas corpus the court is primarily concerned with the welfare of the minor which must be the supreme consideration rather than the legal rights of any particular party. Only recently the Supreme Court observed in Dr. Mrs. Veena Kapoor v, Varinder Kumar Kapoor : AIR1982SC792 that:
'It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.'
Similarly the Division Bench in Smt. Nandita Virmani observed :
'It has to be borne in mind that in petitions under Article 226 for the custody of a child the dominant factor is not the enforcement of the rights of warring parties but the protection of the rights of a child as a human being. Article 21 of the Constitution guarantees to every person in India, be he a citizen or not, protection of his life and personal liberty; these cannot be taken away except according to the procedure established by law. In petitions under Article 226 of the Constitution the High Court is not concerned so much with the question of guardianship. It is more concerned with the question of the life and personal liberty of the child.'
Hence, the question of guardianship/not being within the domain of this Court has to be relegated to the background except to the extent that the petitioner as father of the minor will be presumed to be vitally interested in the welfare of his child, and the court would be ordinarily inclined to accept his claim for entrustment of the custody of his child in preference to the claim of any other person.
(8) In Capt. Rattan Amol Singh v. Smt. Kamaljit Kaur , I.D. Dua, J., speaking for the Court, observed that :
'THEfather's right to the custody of his minor child is not absolute ; nor is it indefeasible in law ; it is circumscribed by the considerations of the benefit and welfare of the minor. I am conscious of the fact that this was the position even before the enactment of the Hindu Minority and Guardianship Act; but by enacting this provision the Parliament has, in my opinion, unambiguously indicated in the clearest language, by providing in the statute, that even in the appointment and declaration of the guardian of a minor the paramount consideration is the welfare of the minor concerned.'
This passage has been quoted with approval by various other High Courts in subsequent judgments and it can be safely said this represents the settled law on the subject. (See Budhulal Shankarlal v. An Iinfant Child (not named) and others : AIR1971MP235 ; Vegesina Venkata Narasaiah v. Chintalapati Pedai Raju : AIR1971AP134 ; Dr. (Smt.) Snehlata Mathur v. Mahendra Narain ; and A.V. Venkatakrishnalah and another v. S.A. Sathyakumar : AIR1978Kant220 ). English decisions too countenance the same view. Said Lord Guest in J. and another v. C. and others, (1969)1 All Er 788 (808) :
'FIRST,in my view the law administered by the Chancery Court as representing the Queen as parens patriae never required that the father's wishes should prevail over the welfare of the infant. The dominant consideration has always been the welfare of the infant.'
'Welfare of a child' said Holmes, L.J., means 'welfare in its widest sense.'
(Re O'Hara, (1902)2 Ir 232 In the same decision Fitz Gibbon, Lj observed at page 241:
'THECourt, acting as a wise parent, is not bound to sacrifice the child's welfare to the fetish of parental authority.'
It is, thereforee, to be seen whether having regard to the facts and circumstances of this particular case the custody of Miss Deepam who is just a babe-in-arms should be entrusted to the respondents in preference to the petitioner or not.
(9) From the foregoing resume of the facts it clearly emerges that the respondents have been actively looking after and taking proper care of Miss Deepam ever since her mother's death. On his own showing the respondents shifted to the petitioner's house although according to him it was just to show sympathy to him and they stayed there uptil June 1984 when they shifted to their own house at A-4, Phase I, Naraina Industrial Area. This circumstances alone speaks eloquently of the love and affection which the respondents have bestowed on the child. No doubt, the petitioner has, inter alia, asserted that his mother two shifted from Sonepat to Delhi to look after the baby but it is difficult to swallow it without a grain of salt. Indeed it is sheer tomfoolery to contend that the baby was being looked after by the mother of the petitioner. Had that been so there was hardly any need for the respondents to shift to the house of the petitioner. It is common knowledge that in Hindus parents of a married daughter would be very much reluctant to stay at the house of his son-in-law except under compelling circumstances. So, I am not convinced with the truthfulness of this averment of the petitioner. This inference is further countenanced by the fact that consequent upon the shifting of the respondents to their own house in June 1984 the petitioner too shifted there. His assertion that he did so because his mother and gone to Sonepat for a few days appears to be a blatant falsehood. It is trite that men may lie but circumstances do not. Further the fact that on 11th Jaly 1984 the petitioner was disposed even to give his minor daughter in adoption to his mother-in-law and he made writing Ex. R1 in this behalf, reinforces the aforesaid conclusion. Indeed, it clinches the issue in favor of the respondents and manifestly establishes that the respondents and not the mother of the petitioner, as is sought to be made out by him, have been rearing and taking care of the baby. The reason for the same is not far to seek. It was obviously deep concern of respondent No. 2 and for that matter even of respondent No. 1, for the upbringing of the only child which her daughter had left behind so soon after her birth. Their anxiety was naturally accentuated because of non-availability of any assistance to the petitioner from any female member of his family. The mother of the petitioner was admittedly residing with her other sons and daughters at Sonepat and perhaps she found it difficult to leave Sonepat for good and take care and custody of the child. It is, however, unfortunate that after 11th July 1984 acute differences arose between the parties over the custody of the child but it is neither possible nor is it within the domain of this proceeding to ascertain the precise cause which led to estrangement and bitterness between the parties. One thing, however, is abundantly clear that the respondents have been bringing up the child and looking after her welfare with utmost love and a deep sense of devotion. No doubt, respondent No. 2 is employed as a headmistress in a school and she is bound to be off on duty during day time but luckily for her she has now got a daughter-in-law who can lend her helping band and attend to the child in her absence. The baby is just one year old by now and she still needs tender care and affection of a devoted person like maternal grand-mother who is added by her daughter-in- law in looking after the infant. So even though the petitioner is every affectionate father and earnestly desires to bring up his daughter with all love and care, I have grave doubts about his capability to bestow the same degree of care and attention on the child in the absence of any regular assistance from his mother which the respondents would be able to. In saying so I do not intend, in any way, to undermine or impair the legitimate rights of the petitioner to the custody of his minor child as a father but as observed earlier the right of the father to the custody of his child is subservient to the paramount consideration of the welfare of the minor. In this view of the matter, thereforee, I do not feel persuaded to deliver the custody of Miss Deepam to the petitioner for the present as it may not be conducive to her welfare and benefit. However, I would hasten to add that this order of mine like all orders relating to the custody of minors is merely tentative and transient in nature. So, the petitioner can at any time seek alteration or modification of the order if there is a change in the circumstances and a variation in the order is (called for considering the welfare and best interest of the child:
(10) In the view I have taken of the matter, I am in good company with Narasimha Rao v. Manikyamma, (1968)1 A L.T 132 Vagesinha Venkata Narasaiah (supra), Budhulal Shankarlal (supra), A.V. Venkata Krishnaiah (supra) and L. Chandran v. Mrs. Venkatalakshmi and another : AIR1981AP1 . In all these cases (except, of course, Bhudulal Shankarlal) the contest for the custody of the minor child was between the father and the maternal grandmother of the child and in all of them keeping in view the best interest and welfare of the minor child the courts declined to entrust the custody to the father. In Budhulal Shankarlal (supra) the minor had been looked after by the neighbours on the death of his mother and the court declined to disturb the custody of his foster parents, inter alia, on the ground that the father was all alone and there was no female member residing with him. Undoubtedly, the decision of a case like this must ultimately turn on its own facts, as the facts in each case differ. I have, thereforee, detailed above the reasons which dissuade me from hanging over the custody of the Miss Deepam to the petitioner at present.
(11) An argument was also advanced by the learned counsel for the petitioner with great fervour that as would appear from the agreement dated 19th August 1984 (copy annexure P2) which was arrived at between the parties at the Police Station the infant is being held as a hostage by the respondents in order to coerce the petitioner to return various gifts and jewellery given by the respondents at the time of his marriage. Although it is not within the domain of this writ petition to dwell upon this aspect of the matter but I am not much impressed by this reasoning especially when in the earlier agreement dated 11th July 1984 the stipulation between the parties was that the jewellery which was in the custody of one Shri Subhash Rao of Syndicate Bank, IN a Branch, would be handed over to the petitioner on the completion of all the legal formalities of adoption of Miss Deepam. Subsequently, however, it was replaced by annexure P2. All the same, the learned counsel for the respondents has assured me that the question of return of the gifts and other items of dowry etc. by the petitioner does not stand in the way of the child being properly brought up by them. Indeed, even counsel for the petitioner has, in all fairness, offered to return all items of gifts and jewellery etc. given by the respondents at the time of the petitioner's marriage but notwithstanding their offer the respondents insist that it will be in the best interest of the child that she remains in their custody at present. It will thus appear that the question of return of gifts and jewellery etc. has no/little bearing on the real controversy between the parties which centres round the custody of the child.
(12) To sum up, thereforee, I am not persuaded to hold that baby Deepam is held by the respondents in illegal restraint, rather continuance of her custody with the respondents would be conducive to a balanced and healthy growth of the minor provided, of course, the petitioner is not denied the opportunity to fondle with and befriend her. It will be disastrous to alienate the child from the love and affection of the father for good. Hence, in order to ensure that the petitioner is not deprived of the company of his only child and is not disabled from showering his love and affection on her and the child is not ultimately lost to him, I direct that the ad-interim arrangement made by this court to enable the petitioner to have the company of his child once a week shall continue till further orders. It will also be open to the petitioner to have the custody of his daughter temporarily for a few days at a stretch, if he so desires, provided he is able to pay exclusive attention to her, with prior arrangement with the respondents through the good offices of counsel for the parties or if need be through court. With these observations, I discharge the rule.