IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 411 of 2010 Date of Decision : March 31, 2010 Sarabjit Kaur ....Petitioner Versus Kapura Ram and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. H.S.Kamboj, Advocate for the petitioner. Mr. D.P.S.Randhawa, Advocate for respondents No.1 to 3. T.P.S. MANN, J. (Oral) By way of present petition filed under Article 226 of the Constitution of India, the petitioner has sought issuance of a writ in the nature of habeas corpus so as to direct respondents No.1 to 3 to produce her minor son Lachhman, aged one year and three months, who, according to her, had been kept in illegal custody by respondents No.1 to 3. According to the petitioner, she was married to Surinder Kumar, son of respondents No.1 and 2 on 30.9.1996 and from this Crl. Writ Petition No. 411 of 2010 -2- wedlock aforementioned Lachhman was born. Surinder Kumar, husband of the petitioner, died on 9.5.2009 due to blood cancer. Thereafter, she remained at the house of the respondents. Lateron respondents No.1 and 2 assured her parents that the petitioner would be married to Ashok Kumar, their younger son, by way of Chader Andazi but respondents No.1 to 3 started maltreating her. About three months earlier, she was thrown out of the matrimonial home by respondents No.1 and 2 and she had no other choice but to come and stay at her parental house. Respondents No.1 to 3 snatched the minor son of the petitioner, who was eleven months old at that time and refused to give his custody to her. It is also stated that the minor son of the petitioner cannot live without her. Upon notice, respondents No.1 to 3 appeared before this Court on 29.3.2010. When asked about the reason for not producing Lachhman, minor son of the petitioner, though a direction had earlier been issued on 18.3.2010 in this regard, they stated that he was unwell and advised rest. In this regard, they produced photocopy of OPD slip dated 28.3.2010 of C.H.C. Amloh. Accordingly, the hearing of the petition was adjourned for today with a direction to respondents No.1 to 3 to produce the minor child in the Court. Respondents No.1 to 3 are present in person and have also produced the child. Crl. Writ Petition No. 411 of 2010 -3- Admittedly, the child is an infant, who is yet to complete his second year of life. The petitioner is the mother of the said infant. In such a situation, it is the petitioner, who has the first right to look after her infant child and not respondents No.1 and 2, who are grand parents of the child and respondent No.3, who is the uncle of the child. Though the petitioner has the remedy of approaching the Court for seeking custody of the child but keeping in view the fact that the child is 1½ years of age and the proceedings before the concerned Court are likely to take some time, this Court is of the view that the interim custody of the child ought to be handed over to the petitioner. At the same time, the petitioner can be directed to approach the concerned Court for seeking formal custody of the child. With a view to ensuring that respondents No.1 to 3 are given visitation rights, a direction can also be issued to the concerned Court for considering their request, if made, sympathetically. Resultantly, the petition is allowed and the petitioner is granted the interim custody of the child. The child has been handed over by respondent No.2 to the petitioner in the Court itself. The petitioner is, hereby, directed to apply to the concerned Court for getting formal custody of the child. Such a petition shall be filed within two months from today and be disposed of by the concerned Court within one year of its filing. In case, respondents No.1 and 2 file Crl. Writ Petition No. 411 of 2010 -4- any application before the concerned Court for being granted visitation rights, their application shall be considered sympathetically. It is, however, made clear that in case, the petitioner does not file any application for formal custody of the child within the stipulated period of time, respondents No.1 and 2 shall be at liberty to file an application in the present petition. Before parting with the matter, the Court may observe that it has not made any observations regarding the merits or demerits of the stand, either of the petitioner or respondents No.1 to 3 while deciding the present petition. ( T.P.S.MANN ) March 31, 2010 JUDGE ajay-1