Om Pati Vs. Suraj Bhan and ors. - Court Judgment

K.S. Kumaran, J.

1. Mrs. Om Pati has approached this Court under Article 226 of the Constitution of India for the issuance of the writ of habeas corpus against the respondents-herein, who are the grandfather and grandmother of the minor, for the production of the said minor and to pass appropriate orders for the custody of the minor.

2. Petitioner Om Pati was married to Ram Niwas on 16.3.1986 and Kiran @ Monu was born to them on 26.12.1988. Ram Niwas had died even on 15.9.1988, and after his death the petitioner was living with the family of the respondents till she married the cousin other deceased husband. According to the petitioner at the time of her second marriage, she insisted that she will take her daughter alongwith her but the respondent Nos. 1 and 2 convinced her that she can do so after some time. According to the petitioner inspite of several attempts made by her including Panchayats and a notice, the respondents 1 and 2 are detaining her daughter in illegal custody. According to the petitioner, her daughter is aged about 8 years.

3. In response to the notice issued, the respondents have filed reply alleging that the child has been living with them since July, 1989, that the petitioner has got the alternative remedy under the Guardians and Wards Act and, therefore, she is not entitled to any relief in these proceedings. According to the respondents, the petitioner did not maintain good relations with her husband and had left her matrimonial home in May, 1988 and started living with her parents. They alleged that she did not even come at the time of death of her husband or at the time of his cremation and other ceremonies, but came in the year July, 1989 to have a share in the property. But the respondents admit that she remained in their house prior to her contracting the second-marriage in January, 1990. They claim that after her second-marriage, she abandoned the child though they requested her to take the one year old child with her. The petitioner informed that she will bear children from her second husband, and that the child Kiran will be a hindrance in her relations with her husband. The respondents have also alleged mat Kiran is studying in the fourth standard now. They denied that there was any Panchayat.

4. I have heard the Counsel for both the sides and perused the records.

5. The admitted position is that the petitioner has contracted a second- marriage with the cousin of her deceased-husband. Her daughter Kiran @ Monu was born after the death of her husband. She lived in the house of respondents, who are father-in-law and mother-in-law respectively, till her second-marriage in the year 1990, and after her marriage her daughter Kiran @ Monu has been living with the respondents.

6. The dispute is, while the petitioner contends that at the time other second-marrige, she wanted to take her daughter-Kiran with her, the respondents contend that inspite of their request to the petitioner to take her daughter alongwith her, the petitioner refused to take Kiran, who was about one year old at that time, stating that it would spoil her relations with her husband. They also contend that now Kiran is studying in the fourth standard that the welfare and the interest of the minor should be sole consideration in such matters, and taking into consideration these facts the Court must hold that the welfare of the child will be better served if she is allowed to reside with the respondents. A legal objection taken by the respondents is that the child has been living with them for so many years that it was the petitioner who got married for the second time and left their house leaving Kiran, who was one year old at that time in their custody stating that she will be a hindrance and, therefore, they are not in illegal custody of the minor. According to the respondents, it is only if the respondents are in illegal or forceful custody of the minor, this Court will issue a writ of habeas corpus. In support of this contention, the learned Counsel for the respondents relied upon the decision of this Court in Pricella Prim v. Bashir Masih & Anr., 1995 (1) RCR (Cri.) 672. That was also a petition by a lady who prayed for the issuance of a writ of habeas corpus for securing the custody of her son aged about 10 years, who was stated to be in illegal custody of his paternal uncle and sister (the respondents). This Court found that the child' has been living with the respondents since 1988 (for over five years) that the talk which the Hon'ble Judge had with the minor revealed that the minor was fully aware of the surroundings and wished to remain with the respondents and that though the welfare of the minor has to be primarily taken into consideration, the same was not possible to be gone into in those proceedings. The Court also observed that the right of the parties to the custody of the minor child is not the determining factor as it is the welfare of the child which is the primary concern. So, holding, the petition was dismissed by this Court leaving it open to the petitioner to seek the custody of the child under the Guardians and Wards Act.

7. The learned Counsel for the respondents also relied upon decision of this Court in Charan Kaur v. Ujagar Singh, 1994 (2) Latest Judicial Reports 659=II (1994) DMC 423. In that case a widow (Charan Kaur) filed a petition under Section 25 of the Guardians and Wards Act for the custody of her three minor children from the custody of their grandfather. The respondents resisted the petition contending that the widow had left the house after giving in writing that she left the children under the care of the respondent since she had no love and affection for them. The Trial Court dismissed the petition and on appeal this Court, taking note of the fact that the widow had, shortly after the death of her husband, left the house of her father-in-law leaving three minor children after executing a written document stating that she had no love and affection for them, that she did not take care for the children, that the minor children were already getting proper care and were also being given education, that the widow was working at a different place from her residence and therefore, she would not have much time to devote to her children, that for nine years she had not made any attempt to see her children in the school, and also holding that the welfare of the children will be better taken care of if they continued to stay with the respondent, dismissed the appeal.

8. This Court in Kiran Rani v. Krishan Kumar & Ors., 1994 (2) Latest Judicial Reports 398=I (1996) DMC 223, held that the welfare of the minor shall be the main consideration. That was a case where Kiran Rani - the petitioner moved this Court under Article 226 of the Constitution of India for issue of writ of habeas corpus for the recovery of infant child from the custody of the respondents namely, her husband and his relations. The child was only one year old. The respondents opposed this on the grounds that a divorce deed has been executed that all the matters had been settled between them and that the child was also handed over to the respondents as per the agreement. Even though this Court observed that in matters concerning the custody of minor, the paramount consideration will be welfare of the child, taking into consideration the tender age of the child and the condition of the mother, the respondent-husband was directed to give the child to the mother. This Court also observed that the interest of the minor in question cannot be decided by this Court since it required evidence and, therefore, directed that the petitioner before the High Court shall file a petition within one month under Section 25 of the Guardians and Wards Act.

9. As against this the learned Counsel for the petitioner relied upon the decision of the Hon'ble Supreme Court in Poonam Datta v. Krishanlal Datta, AIR 1989 SC 401, where the facts of the case are similar to the facts of the case in our hand. The appellant before the Supreme Court Poonam Datta applied to the High Court for a writ of habeas corpus alleging that her minor son Vibhav Datta was being detained by the respondents, and this petition was dismissed by the High Court., Therefore, the appellant approached the Hon'ble Supreme Court. The appellant was the wife of Amar Jyoti Datta, the son of the respondents 1 and 2 (before the Supreme Court). Amar Jyoti Datta died in 1986. The appellant alleged that she was thrown out of the family house about six months after the death of her husband. The Hon'ble Supreme Court directed that the minor child Vaibhav Dutta shall continue the study in the school where he was studying, that neither party will withdraw him without permission of the Court, and that the minor child-Vaibhav Datta will live with his mother, but, during every week end the first-respondent (before the Supreme Court) shall be entitled to take him from the appellant, keep him in the company of the respondents at his residence for the whole Saturday and till 6 p.m. on. Sunday, and then return the child to the mother by 6 p.m. on Sunday. The Supreme Court also directed that this arrangement shall continue till either of the parties goes for guardianship proceedings and gets a declaration.

10. The learned Counsel for the petitioner also relied upon a decision of the Madras High Court in Rama Iyer v. Nataraja Iyer, AIR 1948 Madras 294. That was a case where an application under Section 491 of the Code of Criminal Procedure of 1898 for the custody of a minor child, who was the son of the petitioner, was filed. The minor was in the custody of his maternal grand-father. The minor was of 13 years age. The Madras High Court observed that the minor's refusal to go with his fait he was induced by the maternal grand-father, with whom he was staying and the same is not entitled to any weight. The Madras High Court also held that his detention, even if he remained in the maternal grandfather's custody of his free, Will, it must be deemed to be illegal as against the person who is better entitled in law to have his custody, i.e. his father. The Madras High Court also held that the existence of a remedy under the Guardians and Wards Act is not a bar to the proceedings under the Code of Criminal Procedure.

11. In Veena Kapoor v. Varinder Kumar, AIR 1982 SC 792, it was held as follows:

'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.'

That was also a case where the petitioner (Veena Kapoor) had filed a petition for the issuance of a habeas carpus praying for the custody of the child alleging that the respondent (her husband) was in illegal custody of the child, The High Court dismissed the petition filed by her on the ground that the custody of the child with the respondent-husband cannot be said to be illegal. In those circumstances, the Hon'ble Supreme Court held that the welfare of the minor is the paramount consideration in such cages.

12. We have to examine the facts of the present case in the background of these decisions. The petitioner-hereinafter the death of her husband gave birth to her daughter Kiran @ Monu. Her husband died on 15,9.1988. Hardly after a year, she remarried the cousin other deceased-husband, leaving the child in the custody of the respondents, who are the grand-parents of the child. Though the petitioner has stated in her petition that at the time of her marriage she wanted to take the child with her, she was convinced by the respondents that she can do so after some time, she has done nothing tenable to get the custody of the child till she filed this petition except issuing a notice, The child is being brought up from 1990 at least and is being given education by the grand-parents. It has not been alleged in her petition that the custody of the child was taken by the respondents illegally or forcibly, though she now states that the detention is illegal, In the circumstances of the case, we have to take into consideration the welfare of the child unlike the case or other relations and persons and for whose custody a petition for habeas, cause is filed- As to how the welfare and interest of the minor can be best served- cannot be decided in these proceedings without detailed evidence.13. So taking into consideration the facts that the petitioner left the child in the custody of the respondents after getting married in the year 1990, that the child is being brought up and given education by the respondents for all these years and also the fact that the petitioner is also working-1 feel that child Kiran shall for the present be with the respondents subject to the rights to either parties to move appropriate Guardianship proceedings under the appropriate law- This view of mine i supported by the decisions of the Hon'ble Supreme Court and of this Court referred to (supra). Of course the decision in Pmrnm Dafta's case cited (supra), the Hon'ble Supreme Court directed that the minor child will live with his mother. That was a case where the mother alleged that she was thrown out of the family house about six months after the death of her husband but that is not the case here. The petitioner herein got married of her own choice, left her child with the grand parents and went away with her second-husband. Even in Poonam Datta's case cited (supra), the Hon'ble Supreme Court directed that the child should be with the mother subject to the condition that one of the parties shall take appropriate guardianship proceedings and get a declaration. Therefore, the decision in Poonam Datta's case is distinguishable.

14. Similarly the decision of the Madras High Court cited (supra) in Rama Iyer's case is also not applicable to the facts of this case since that Court found that inspite of the fact that minor child was put in the school and the costs of education was agreed to be borne by the father, the child ran away from the school to his grandfather and refused to live with the father. This High Court found that the truancy of the boy, his disinclination to study and his aversion this father were the result of the pernicious influence of his maternal grandparents, which is not the case here. Further, in view of the decision of the Hon'ble Supreme Court in Veena Kapoor's case cited (supra), the decision of the Madras High Court in this regard cannot be followed, even though I agree with that decision to the extent that the existence of the remedy under the Guardians and Wards Act will not be a bar to the filing of a petition for the issuance of the writ of habeas corpus.

15. Therefore, in view of the discussion above, this petition has to be and is accordingly dismissed with the observation that it is open to either of the parties to move for the custody of the minor child under thee appropriate law before appropriate forum.