Sanju and Others Vs. Sobhanath and Others - Court Judgment

Excerpt:
family -constitution- taking back custody of children - section 6 of hindu minority and guardianship act, 1956 and article 226 of constitution of india - habeas corpus filed by mother - father maintaining children for four years - father claiming he was natural guardian and he could better maintain children - mother has no source of income - held, in welfare of children custody should be with father-petition dismissed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - relations between the wife and husband became strained allegedly due to the bad habits of the husband who was a labourer. the alleged bad habits were illicit connection with another lady, gambling and drinking etc. 4, the wife, was compelled to do the work of washing and pressingof clothes for her survival as well as the survival of the children. she tried her best to get back the custody of the children but in vain and hence the need for this habeas corpus petition. he denied that he had got any bad habit and contended that he wanted her to accompany him to surat but she was not prepareped for the same due to her illicit relationship with surendra singh. 7. sobhanath, the father, claimed right of custody of the children in view of section 6 of the hindu minority and guardianship act 1956 as he was their natural gurdian and also because the children could be better maintained by him than his wife and that considering the welfare of the children which was of paramount consideration, this petition was liable to be dismissed because his wife had got no source of income. for the petitioner, to the contrary, it was contended that she had been running a small shop and also washing and pressing clothes of customers and compared with the resources of her husband, she was in a better position to maintain the children. parvati devi that she was in a better position to maintain the children was devoid of merits. sobhanath, nodoubt, was a labourer only but being an able bodied man, he was in a position to earn more money and provide better living conditions and also education to the children. parvati devi's claim therefore, that she could better ensure the welfare of the children was not acceptable. they were speaking freely and appeared to be reasonably intelligent and smart.order1. the detenus who are childrenof smt. parvati devi and sobhanath, o.p.no. 1, have instituted this habeas corpuspetition through their mother, smt. parvatidevi, as they allegedy were in the illegalcustody of their father and considering thestatus of husband and wife they could bemaintained properly by their mother only andnot father. 2. the marriage had taken place about 20 years ago and on the date of the petition, i.e. 7th july, 1994, raju radha and sanju were aged about 11 years, 5 years and 4 years respectively. relations between the wife and husband became strained allegedly due to the bad habits of the husband who was a labourer. the alleged bad habits were illicit connection with another lady, gambling and drinking etc. his behaviour towards the wife and children had become rather cruel.3. petitioner no. 4, the wife, was compelled to do the work of washing and pressingof clothes for her survival as well as the survival of the children. on her request, her husband had taken the family to kikarahi bazar within police station karma where she had started a petty shop of 'visatkhana' and also used to do the work of washipg and pressing of the clothes of the customers. her husband, however, about four years ago with the help of his notorious friends, illegally took away the children to gujarat along with some unknown person. they were being ill-treated by him there. she tried her best to get back the custody of the children but in vain and hence the need for this habeas corpus petition. she had lodged a first information report also on 4-7-1994 against her husband, the copy of which is annexure 1 of the petition.4. husband sobhanath in his counter affidavit contended that his wife, smt. parvali devi was a lady of easy virtues and had developed illicit relationship with one surendra singh who was a carpet merchant. she had started living openly with surendra singh. he denied that he had got any bad habit and contended that he wanted her to accompany him to surat but she was not prepareped for the same due to her illicit relationship with surendra singh. regarding children, he stated that they were living happily along with him in surat. being father, he was the natural guardian of the children all of whom were more than five years of age. there was danger of the children getting spoiled if they lived along with his wife in the house of surendra singh. he had got sufficient means to maintain the children and the habeas corpus petition was liable to be dismissed.5. petitioner no. 4 filed rejoinder affidavit which she reasserted her contentions. she further alleged that the children were minors and unable to take a correct decision regarding their welfare. the paramount consideration was welfare of minors and not the legal right of anybody.6. the submissions put forward by the learned counsel for the parties were heard at length by this court. it was now settled lawthat even in the presence of an alternative remedy, a writ of habeas corpus regarding the custody of the children was maintainable and this petition therefore could not be thrown away on the alleged ground of its non-maintainability-vide this court's deci-sion reported in 1993 alj 714: (air 1993 all 230), ravi kant keshri v. krishna kumar gupta. the aforesaid view regarding the maintainability of this petition was taken by the court after considering a few decisions of this court as welt as the apex court. this court held that alternative remedy under hindu minority and guardianship act is no bar against the maintainability of the habeas corpus petition. it is, therefore, not possible to agree with the contention of the learned counsel for the opposite party that the peti-. tion is not maintainable.7. sobhanath, the father, claimed right of custody of the children in view of section 6 of the hindu minority and guardianship act 1956 as he was their natural gurdian and also because the children could be better maintained by him than his wife and that considering the welfare of the children which was of paramount consideration, this petition was liable to be dismissed because his wife had got no source of income. for the petitioner, to the contrary, it was contended that she had been running a small shop and also washing and pressing clothes of customers and compared with the resources of her husband, she was in a better position to maintain the children.8. after carefully considering the aforesaid submissions and going through the record, i find that the contention of smt. parvati devi that she was in a better position to maintain the children was devoid of merits. she used to live in a village and it was difficult to believe that she would have been able to earn enough money for her own living and also the living of the three children. it was evident from her own affidavit and rejoinder affidavit that the children were being main tained by her husband sobhanath in surat for the last about four years. sobhanath, nodoubt, was a labourer only but being an able bodied man, he was in a position to earn more money and provide better living conditions and also education to the children. parvati devi's claim therefore, that she could better ensure the welfare of the children was not acceptable.9. the three children were present in the court room and i had talked to them. none of them was under five years of age. they were speaking freely and appeared to be reasonably intelligent and smart. no doubt what they stated could not be given much weight as they were in the custody of their father but none of them appeared to be under pressure. they expressed desire to live along with their father.10. in view of the above discussion, 1 am of the opinion that the sole paramount consideration of welfare of the children in this petition was with their father and not mother. the father, no doubt, was their natural guardian also as provided by section 6 of the hindu minority and guardianship act 1956 but without attaching any importance to his status of guardian, i feel that it would be in the interest of the minor children if they live along with thier father.11. both the parties have levelled allegations of immoral living upon each other butit is neither necessary nor possible in thispetition to return a finding about the same.the said allegations of immoral living couldbe decided only after giving opportunity tothe parties to adduce evidence includingcross-examination of each other's witnesses.i, therefore, do not propose to enter into thisquestion. 12. the petition in view of the above discussion is dismissed. o.p. no. 1 sobhanath shall be entitled to keep the three detenus with him. no order is made as to costs which shall be borne by the parties themselves.13. petition dismissed.

Judgment:
ORDER

1. The detenus who are childrenof Smt. Parvati Devi and Sobhanath, O.P.No. 1, have instituted this Habeas CorpusPetition through their mother, Smt. ParvatiDevi, as they allegedy were in the illegalcustody of their father and considering thestatus of husband and wife they could bemaintained properly by their mother only andnot father.

2. The marriage had taken place about 20 years ago and on the date of the petition, i.e. 7th July, 1994, Raju Radha and Sanju were aged about 11 years, 5 years and 4 years respectively. Relations between the wife and husband became strained allegedly due to the bad habits of the husband who was a labourer. The alleged bad habits were illicit connection with another lady, gambling and drinking etc. His behaviour towards the wife and children had become rather cruel.3. Petitioner No. 4, the wife, was compelled to do the work of washing and pressingof clothes for her survival as well as the survival of the children. On her request, her husband had taken the family to Kikarahi Bazar within police station Karma where she had started a petty shop of 'Visatkhana' and also used to do the work of washipg and pressing of the clothes of the customers. Her husband, however, about four years ago with the help of his notorious friends, illegally took away the children to Gujarat along with some unknown person. They were being ill-treated by him there. She tried her best to get back the custody of the children but in vain and hence the need for this Habeas Corpus Petition. She had lodged a first information report also on 4-7-1994 against her husband, the copy of which is Annexure 1 of the petition.

4. Husband Sobhanath in his counter affidavit contended that his wife, Smt. Parvali Devi was a lady of easy virtues and had developed illicit relationship with one Surendra Singh who was a carpet merchant. She had started living openly with Surendra Singh. He denied that he had got any bad habit and contended that he wanted her to accompany him to Surat but she was not prepareped for the same due to her illicit relationship with Surendra Singh. Regarding children, he stated that they were living happily along with him in Surat. Being father, he was the natural guardian of the children all of whom were more than five years of age. There was danger of the children getting spoiled if they lived along with his wife in the house of Surendra Singh. He had got sufficient means to maintain the children and the Habeas Corpus Petition was liable to be dismissed.

5. Petitioner No. 4 filed rejoinder affidavit which she reasserted her contentions. She further alleged that the children were minors and unable to take a correct decision regarding their welfare. The paramount consideration was welfare of minors and not the legal right of anybody.

6. The submissions put forward by the learned counsel for the parties were heard at length by this court. It was now settled lawthat even in the presence of an alternative remedy, a writ of Habeas Corpus regarding the custody of the children was maintainable and this petition therefore could not be thrown away on the alleged ground of its non-maintainability-vide this Court's deci-sion reported in 1993 ALJ 714: (AIR 1993 All 230), Ravi Kant Keshri v. Krishna Kumar Gupta. The aforesaid view regarding the maintainability of this petition was taken by the court after considering a few decisions of this Court as welt as the apex Court. This Court held that alternative remedy under Hindu Minority and Guardianship Act is no bar against the maintainability of the Habeas Corpus Petition. It is, therefore, not possible to agree with the contention of the learned counsel for the opposite party that the peti-. tion is not maintainable.

7. Sobhanath, the father, claimed right of custody of the children in view of Section 6 of the Hindu Minority and Guardianship Act 1956 as he was their natural gurdian and also because the children could be better maintained by him than his wife and that considering the welfare of the children which was of paramount consideration, this petition was liable to be dismissed because his wife had got no source of income. For the petitioner, to the contrary, it was contended that she had been running a small shop and also washing and pressing clothes of customers and compared with the resources of her husband, she was in a better position to maintain the children.

8. After carefully considering the aforesaid submissions and going through the record, I find that the contention of Smt. Parvati Devi that she was in a better position to maintain the children was devoid of merits. She used to live in a village and it was difficult to believe that she would have been able to earn enough money for her own living and also the living of the three children. It was evident from her own affidavit and rejoinder affidavit that the children were being main tained by her husband Sobhanath in Surat for the last about four years. Sobhanath, nodoubt, was a labourer only but being an able bodied man, he was in a position to earn more money and provide better living conditions and also education to the children. Parvati Devi's claim therefore, that she could better ensure the welfare of the children was not acceptable.

9. The three children were present in the court room and I had talked to them. None of them was under five years of age. They were speaking freely and appeared to be reasonably intelligent and smart. No doubt what they stated could not be given much weight as they were in the custody of their father but none of them appeared to be under pressure. They expressed desire to live along with their father.

10. In view of the above discussion, 1 am of the opinion that the sole paramount consideration of welfare of the children in this petition was with their father and not mother. The father, no doubt, was their natural guardian also as provided by Section 6 of the Hindu Minority and Guardianship Act 1956 but without attaching any importance to his status of guardian, I feel that it would be in the interest of the minor children if they live along with thier father.

11. Both the parties have levelled allegations of immoral living upon each other butit is neither necessary nor possible in thispetition to return a finding about the same.The said allegations of immoral living couldbe decided only after giving opportunity tothe parties to adduce evidence includingcross-examination of each other's witnesses.I, therefore, do not propose to enter into thisquestion.

12. The petition in view of the above discussion is dismissed. O.P. No. 1 Sobhanath shall be entitled to keep the three detenus with him. No order is made as to costs which shall be borne by the parties themselves.

13. Petition dismissed.