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 Crl. W. P. No. 667 of 2011 5 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