Crl. W. P. No. 667 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Crl. W. P. No. 667 of 2011
Date of Decision : July 12, 2011
Baljit Kaur .... Petitioner
Vs.
State of Punjab and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Rajeev Godara, Advocate
for the petitioner.
Mr. Shailesh Gupta, DAG, Punjab
for respondents no.1 and 2.
Mr. Vivek Goyal, Advocate
for respondents no.3 and 4.
* * *
L. N. MITTAL, J. (Oral) :
Baljit Kaur has filed this Habeas Corpus writ petition under
Article 226 of the Constitution of India.
Facts
of this case, in nut-shell, are as under :-
Petitioner is daughter-in-law of respondents no.3 and 4.
Petitioner’s husband has since died on 28.09.2009. Petitioner has two minor
children namely Karamjit Kaur aged about 4½ years and Avtar Singh aged
about 01 year and 02 months (born posthumously), when the petition was
filed. Petitioner’s case is that after death of her husband and birth of Avtar
Crl. W. P. No. 667 of 2011 2
Singh, respondents no.3 and 4 started maltreating the petitioner and
ultimately, she was turned out of the matrimonial home and was not allowed
to take her children with her.
Case of respondents no.3 and 4 is that after death of her
husband and birth of Avtar Singh, petitioner voluntarily left the matrimonial
home and started residing at Sirsa. Respondents no.3 and 4 also pleaded
compromise (Annexure R-1) allegedly arrived at between the parties.
On the preceding date of hearing, the petitioner, who was
present in person, denied her signatures on compromise Annexure R-1. The
compromise also purports to have been signed by petitioner’s father, uncle
and some other persons. Accordingly, the petitioner was directed to bring
her father, uncle Tarlochan Singh, Gurmit Singh and Sardool Singh
Sarpanch. Pursuant to said order, petitioner’s father Baldev Singh has come
present in person. He has admitted his signatures on compromise Annexure
R-1. Petitioner is also present in person. Petitioner denies the compromise.
Petitioner and her father have stated that amount of
Rs.45,000/-, which was to be paid later on according to the terms of
compromise, has not been paid, whereas respondent no.4 Sukhdev Singh,
who is present in person, states that he later on paid the said amount without
any receipt.
I have heard learned counsel for the parties and perused the
case file.
Learned counsel for respondents no.3 and 4 raised preliminary
objection to the maintainability of the instant Habeas Corpus petition
Crl. W. P. No. 667 of 2011 3
contending that custody of minor children with respondents no.3 and 4, who
are their grand parents, cannot be said to be illegal or forcible and therefore,
writ of Habeas Corpus is not maintainable and petitioner should approach
the Guardian Court. In support of this contention, learned counsel for
respondents no.3 and 4 has relied on two judgments of this Court i.e.
Zorawar Singh Atwal vs. Smt. Rachna reported as 2001 (4) R.C.R.
(Criminal) 532 and Om Pati vs. Suraj Bhan reported as 1998 (1) PLR
660.
On the other hand, learned counsel for the petitioner contended
that Habeas Corpus petition for taking custody of minor children is
maintainable. Reliance in support of this contention has been placed on two
judgments of this Court namely Sarbati vs. Phoolwati reported as 2008
(2) R.C.R. (Criminal) 806 and Gurmeet Kaur Batth vs. State of
Punjab and others reported as 2009 (1) R.C.R. (Criminal)974.
I have carefully considered the rival contentions. It is not the
petitioner’s case that her children were forcibly snatched from her by
respondents no.3 and 4. Petitioner’s case is that she was turned out of the
matrimonial home and was not allowed to take the children with her. Case
of respondents no.3 and 4 is that the petitioner herself left the matrimonial
home leaving behind the minor children. This disputed question of fact as
well as paramount question of welfare of the minor children to determine
their custody can be adjudicated upon by the Guardian Court after the
parties lead evidence in support of their respective versions. Such disputed
Crl. W. P. No. 667 of 2011 4
question of fact cannot be adjudicated upon in exercise of writ jurisdiction
under Article 226 of the Constitution of India. On the contrary, there is
specific provision under the Guardian and Wards Act, 1890 and the Hindu
Minority and Guardianship Act, 1956 to take care of the situation pleaded
by the petitioner. The petitioner can approach the Guardian Court for
seeking custody of the minor children. The Guardian Court has ample
power to even grant interim custody or to grant visiting rights or to pass any
appropriate order.
It may be mentioned that there may not be absolute bar to the
maintainability of the Habeas Corpus petition to seek custody of the minor
children, but each case has to be adjudged on its own facts and
circumstances. In the instant case, keeping in view the disputed question of
fact and other circumstances, it would be appropriate for the Guardian Court
to determine the question of custody of minor children and same cannot be
appropriately adjudicated upon in exercise of writ petition. It may be added
that judgment in the case of Om Pati (supra) is fully applicable to the
facts of the instant case. In that case also, there was death of petitioner’s
husband. Petitioner left one year old daughter with grand parents of the
child and contracted second marriage. Later on, the petitioner filed Habeas
Corpus petition after eight years claiming custody of the child. The petition
was dismissed holding that custody of the child with grand parents was not
initially illegal or forcible. It was also observed that the question regarding
welfare and interest of the minor cannot be determined in writ petition
without detailed evidence and therefore, the parties were asked to move
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petition under Guardians and Wards Act at their discretion. This judgment
is applicable to the facts of the instant case from all angles. Judgment in the
case of Zorawar Singh Atwal (supra) is also broadly applicable.
On the other hand, in the case of Gurmeet Kaur Batth
(supra), the facts were entirely different. The petitioner and her husband
were residing in Canada. The child was born in Canada. Grandmother
brought the child to India with consent of the mother. However, thereafter,
there was estrangement between the husband and the wife. Canadian Court
gave interim custody of the child to wife (petitioner). However,
grandmother refused to hand over the child to the mother. It was in these
circumstances that Habeas Corpus petition was entertained in that case. The
said judgment is completely distinguishable on facts. In the case of
Sarbati (supra), it was held that power under Article 226 of the
Constitution of India is wide enough and Habeas Corpus petition by mother
seeking custody of minor children from grandmother is maintainable, but
even in that case, the writ petition was dismissed.
It is thus concluded that although there might not be absolute
bar to the maintainability of Habeas Corpus petition, but keeping in view all
the facts and circumstances of the instant case, the instant writ petition is
dismissed, with liberty to the petitioner to move the Guardian Court to seek
appropriate relief in accordance with law, if so advised.
July 12, 2011 ( L. N. MITTAL ) monika JUDGE