JUDGMENT
V.K. Bali, J.
1. Kiran Rani, it appears from the facts of this case, has
approached this Court through present petition filed by her under Article 226 of the
Constitution of India for issuance of writ of habeas corpus for recovery of her
infant child, Gaurav, aged only one year from the custody of respondents, who
are none others than her husband and his relations in compelling circumstances.
Petitioner was married with respondent-Krishan Kumar in May, 1992 at Sangrur.
Out of this wed-lock a son was born about a year ago. It is pleaded that
respondents were not happy with petitioner for not bringing adequate dowry.
Consequently, she was made to live with her father at Sangrur alongwith her
infant child, Gaurav. Respondents started putting pressure on her as also on her
father to get divorce so that respondent-husband was able to solemnise second
marriage. This was, obviously, unacceptable to petitioner. It is further pleaded
that the respondents hatched a conspiracy and called petitioner alongwith her
father to Hoshiarpur in the garb of rehabilitating her. When petitioner alongwith
her infant son and father reached at Hoshiarpur at the house of respondents on
February 19,1994, the son was forcibly taken from her and she was made to sign
certain papers under the threat that if she was not to comply with their directions
and sign the documents, her son, Gaurav would be killed. Finding no way out to
resist the demand of respondents, who were threatening to kill her son, she
succumbed to the pressure and signed certain papers produced before her. Once
this object of respondents was achieved, she and her father were pushed out of the
house and they were told to leave Hoshiarpur. Respondents further threatened
the petitioner that Gaurav would be kept by them as a security for getting divorce
from the Court and if she was to resist the decree of divorce, respondents would
kill her son. When frantic efforts of petitioner to secure the custody of her only
son, both from Hoshiarpur as well as Sangrur police, brought to tangible result,
she approached this Court for the relief indicated in the earlier part of this
judgment.
2. It is pleaded that the life of infant son Gaurav, is in the danger as the minor
is taking breast feed, not being used to take other food. It is also pleaded the
petitioner is also feeling complications as the milk is flowing from her breasts and
in case Gaurav is not given breast feed of which he is used to, not only that his life
would be in danger but petitioner might also be in for some physical trouble on
account of continuous flow of milk from her breasts.
3. In pursuance of notice issued to respondents, reply has been filed by them
wherein it has been sought to be made out that on July 17, 1993 petitioner told
that she had to go to Nanga Mandir/Gurudwara situated at Sangrur as before delivery she made prayer that in case she was blessed with a son, she would have
‘Darshan’ of Nanga Mandir alongwith her son and other family members. As
such, respondent Nos. 1 and 2 alongwith petitioner and her son went to Sangrur.
After having ‘Darshan’ of the Mandir, petitioner insisted to stay at Sangrur with
her parents for some time. Respondent Nos. 1 and 2 came back to Hoshiarpur.
The allegations regarding demand of dowry have been denied. It has further been
pleaded that when after waiting for a long time, petitioner did not turn up,
husband-respondent went to Sangrur to bring her back. Petitioner, however,
refused to come back without any excuse. Other efforts made by respondents also
did not yield any result. On February 15,1994 respondents were summoned in the
Police Station Wing dealing with complaints of ladies regarding matrimonial
disputes. They approached one Jagdish Saini, who happens to be the President
of Bahujan Samaj Party. On reaching Police Station, respondents were asked to
settle their dispute with petitioner. Jagdish Saini made request to petitioner’s
father on telephone to come to Hoshiarpur to settle the dispute. Ultimately, father
of petitioner promised to reach at Hoshiarpur on February 19,1994. On the said
date, petitioner alongwith her father, infant son, Hardev Singh and Gurdish
Singh, went to Hoshiarpur Police Station. Respondent Nos. 1 and 2 also reached
there. Shri Jagdish Saini also reached there alongwith one Onkar Singh. On
reaching Police Station, Smt. Narinder Kaur, ASI, asked the parties to patch up the
dispute by mutual consent. For this purpose, meeting was held and Shri Jagdish
Saini tried his level best to patch up the matter but petitioner openly declared that
she did not want to live with respondent Krishan Kumar and wants divorce. This
offer of petitioner was accepted and divorce deed was executed and terms were
settled. It was signed by both, husband and wife. Jagdish Saini, Onkar Singh and
two persons, who came alongwith the petitioner, Hardev Singh and Gurdish
Singh also put their signatures. A copy of divorce deed has been placed on records
as Annexure R-l. On the same day, it is also pleaded, that every term was settled.
All the articles as mentioned in the divorce deed, were returned to petitioner and
she was also paid an amount of Rs. 30,000/- in the presence of witnesses. On
having received all the articles, Gaurav, son was handed over to respondents and
one feeder make Bonne was also handed over to feed him. Petitioner hired a truck
No. 407 and carried all the articles to Sangrur.
4. In the divorce deed, Annexure R-l, after narrating the date of marriage
and other things, like dispute that had surfaced between the parties, settlement
with regard to various matters, like, return of dowry etc- is mentioned from
Clauses 6 to 10 which reads thus :
“6. That both the parties agreed to return the items of Istridhan and other
articles presented to each other at the time of marriage and
thereafter. Consequently, thereupon, it was also decided that party
No. 1 will pay a sum of Rs. 30,000/- in cash to party No. 2 as
compensation of expenses incurred on the marriage party and
miscellaneous expenses..
7. That out of their wed-lock, a son named Mr. Gaurav was born on
20.2.1993 and it was decided that the son will be given to Party No. 1.
8. That the articles gifted by the Party No. 2 to Party No. 1 containing
clothes, beddings, furniture, steel box (Peti), utensils and golden ornaments etc. will be returned by party No. 1 to party No. 2
simultaneously on the above transaction.
9. That both the parties will have no right to seek any legal Court which
and with this undertaking.
10. That on completion of the above terms and conditions, both the parties
are at liberty to marry any where they like and there will be no
objection to each other.”
5. Clause 6 recites that both the parties had agreed to return the items of
Istridhan and other articles presented to each other at the time of marriage. It has
also been recited that a sum of Rs. 30,000/- in cash will be paid to party No. 2 as
compensation of expenses incurred on the marriage party and miscellaneous
expenses. Clause 7 is with regard to minor son, Gaurav and it is recited that he will
be given to party No. 1. With regard to articles gifted by party No. 1 to party No.
2, again it is mentioned that the same will be returned by party No. 1 to party No.
2. Clause 10 mentions that on completion of above terms and conditions, both the
parties would be at liberty to marry again. The scope of this petition is not to
decide the authenticity of the deed, referred to above, nor can the same be decided
without recording evidence of the parties.
6. However, Mr. Mittal, learned Counsel for petitioner, vehemently
contends that the deed, Annexure R-l, was got signed by respondents on the
threat that the only son, Gaurav, would be killed. Even though, as mentioned
above, this Court is ill-equipped at this stage without there being any evidence to
comment upon the authenticity, validity and legality of deed, Annexure R-l, one
thing is, however, certain that whereas all the terms and conditions, it appears,
were to be complied with, it is not understandable as to why Gaurav, minor son
was to be given at that very time when the deed aforesaid was executed.
7. Mr. Bhatia, learned Counsel for the respondents, however, contends that
the language of the deed may show that terms thereof-were to be complied with
on a later date but as a matter of fact everything was done at the time when deed
aforesaid was executed. However, he is unable to show receipt of Rs. 30,000/-
alleged to have already been paid to petitioner.
8. It is settled that in matters concerning custody of minor, the paramount
consideration is welfare of the child, Gaurav, minor child of petitioner-wife and
respondent No. 1-husband is admittedly one year old and it has nowhere been
denied that he is living on breast feed. The tender age of the child and condition
of his mother, who is likely to develop some physical problem on account of the
fact that milk is still flowing from her breasts, guides this Court to direct
respondent-husband to immediately give the child to his mother from whose
custody, admittedly, he was taken. In Mrs. Veena Kapoor v. Varinder Kumar
Kapoor, AIR 1982 SC 792, a petition of habeas corpus filed by the wife was
dismissed by the High Court and when the matters was taken to the Apex Court,
it was held 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. The High Court, without adverting to this
aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to the illegal”. The facts of the
case aforesaid reveal that Dr. (Mrs.) Veena Kapoor filed petition of habeas corpus
asking for the custody of the child alleging that he was in illegal custody of her
husband. Petition was dismissed by-learned Single Judge of this Court.
9. Where lies ultimate interest of minor, i.e. to be in the care and custody of
mother or father, is however a question which cannot be decided by this Court
as that necessarily requires recording of evidence. This matter has to be decided
in a petition to be filed by either of the parties under Section 25 of the Guardian
Wards Act read with Section.6 of the Hindu Minority & Guardianship Act, 1956.
Learned Counsel for petitioner undertakes that such petition would be filed by
petitioner within a month from today. Inasmuch as the child is of very tender age
and at present it is necessary for him to stay with his mother, it is ordered that he
be immediately handed over to petitioner-mother. This arrangement, as said in
my order pronounced and dictated in Court, shall last only till such time the
District Judge, Sangrur decides the matter regarding interim custody of the minor
in a petition to be filed by petitioner under Section 25 of the Guardian & Wards Act
read with Section 6 of the Hindu Minority & Guardianship Act, 1956. As
undertaken by the Counsel, petitioner shall file such petition within one month
from today. The question of handing over the child either to mother or father,
would be finally disposed of in the petition to be filed by wife in due course of time
but the question with regard to interim custody be decided within three months
from the date respondent is served in the petition to be filed by the wife, as
mentioned above.
10. This petition is, thus, disposed of in the manner indicated above.