CRWP No. 474 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No. 474 of 2010 Date of decision: 10.8.2010 Gurmeet Kaur @ Gurmeeto ........ Petitioner Versus State of Punjab and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Ms. G.K. Mann, Advocate for the petitioner. Mr. Arshvinder Singh, Deputy Advocate General, Punjab. Mr. Veneet Sharma, Advocate for respondents No.4 and 5. JORA SINGH, J. Gurmeet Kaur @ Gurmeeto, filed the present Criminal Writ Petition under Article 226 of the Constitution of India, for issuance of writ in the nature of habeas corpus for the release of detenue Manga Singh S/o Late Beera Singh (deceased), aged about 5 years from the illegal custody of respondents No.4 and 5. It is further prayed that a Warrant Officer may be appointed to locate the detenue and produce him in the Court. That the petitioner has three issues namely Manga Singh aged about 5 years, Satto daughter about 4 years and son Jashan aged about 1½ years. Beera Singh husband of the petitioner had expired about one year back and after the death of her husband, the petitioner was looking after her children being a mother and she has a legal right to keep her children with her. That the petitioner is doing stitching work and also domestic work of other people and with this income she is CRWP No. 474 of 2010 -2- looking after her children. Respondents No.4 and 5 were threatening the petitioner that they will forcibly and illegally take away Manga Singh. Then the petitioner had filed a civil suit for permanent injunction against respondents No.4 and 5, but during the pendency of the civil suit, respondents No.4 and 5 took away the minor child on 20.1.2010. That the petitioner alongwith other respectables had gone to the residence of respondents No.4 and 5, but they refused to hand over the custody of minor child namely Manga Singh. After that the petitioner had to file an application under Section 97 of Cr.P.C. (Annexure P-1), but the same was dismissed vide order dated 13.2.2010 (Annexure P-2), on the ground that the petitioner is entitled to take the custody of her son as per law through proper course. That respondents No. 4 and 5 have their own daughter and they are not even taking proper care of the detenue. They are getting domestic work from the -minor child and when they were requested to return the custody of minor child then they refused to do so. That the petitioner is the natural guardian being mother and even the Court is to see the welfare of the child because the small child does not know his interest. Upon notice respondents No.4 and 5 filed the reply and contested the petition inter alia on the ground that the petitioner had already availed the remedy by way of filing complaint under Section 97 Cr.P.C. which was dismissed on 13.2.2010 and the said order has become final. The suit for permanent injunction was also dismissed as withdrawn on 3.2.2010. That Manga Singh is at present 6½ years old. Manga Singh was about 6 months old, when his custody was given to the answering- respondents by the husband of the petitioner because the answering-respondents did not have any child of their own. On the other hand the petitioner had three children and was not in a position to CRWP No. 474 of 2010 -3- bring them up. A writing (Annexure R-1) was scribed when Manga Singh was handed over to the answering-respondents. Manga Singh has been residing with the answering-respondents as their own son since he was only 6 months old. That after the death of her husband the petitioner was instigated by some vested interests to harass the answering-respondents by filing false and frivolous petitions. While deciding the custody of a minor his welfare is of paramount importance. The petitioner thought about the welfare of minor child at a very later stage i.e. after the death of her husband which clearly shows that the present petition was filed with an ulterior motive. Respondents No.1 to 3 did not file the reply. I have heard learned counsel for the petitioner, learned State counsel and learned counsel for the contesting respondents. Learned counsel for the petitioner has argued that Manga Singh is the real son of the petitioner. Respondent No.5 namely Jageero @ Toshi, is the real sister-in-law of the petitioner and wife of respondent No.4-Lakha Singh. Jageero @ Toshi and Lakha Singh threatened the petitioner to take away Manga Singh. Then the petitioner had to file a civil suit but during the pendency of the civil suit on 20.1.2010, Manga Singh was forcibly taken away by respondents No.4 and 5. After that the petitioner filed a petition under Section 97 of Cr.P.C., but that petition was dismissed on the allegation that the petitioner is entitled to take the custody of minor son through proper course. Manga Singh was 5 years old when he was taken away forcibly by respondents No.4 and 5. The petitioner is the mother of Manga Singh. Welfare of the minor is the paramount consideration. After the death of Beera Singh, the petitioner being mother is the natural guardian and a direction to issue habeas corpus is maintainable to get the custody of her minor son when the minor son is in the illegal custody of CRWP No. 474 of 2010 -4- respondents No.4 and 5. Respondents No.4 and 5 have their own daughter. The writing (Annexure R-1) does not have an evidentiary value because the petitioner did not sign or thumb marked the writing and without the consent of the mother, the father had no right to hand over the custody of the minor son to respondents No.4 and 5. With the dismissal of application under Section 97 of Cr.P.C., there is no bar to file this petition to get the custody of minor son who is in illegal custody of respondents No.4 and 5. Learned counsel for the petitioner has cited (i) CRWP No. 793 of 2009 “Jaswinder Kaur Vs. State of Punjab and other” decided on 10.11.2009; (ii) 2009 (1) R.C.R. (Criminal) 974 “Gurmeet Kaur Batth Vs. State of Punjab and others” and 1988 (1) R.C.R. (Criminal) 672 “Ms. Janak Kumari Vs. R.C. Kotwal”. Learned counsel for the contesting respondents argued that the petitioner is the widow of Beera Singh. Jageero @ Toshi- respondent No.5 is the real sister of Beera Singh (deceased) whereas Lakha Singh-respondent No.4 is the husband of respondent No.5. The petitioner had three issues and being poor she is not in a position to look after the minor children. The contesting respondents had no issue. Custody of Manga Singh was handed over to the contesting respondents as per writing (Annexure R-1). Copy of the plaint is not produced to show as to whether Manga Singh was taken away illegally or forcibly on 20.1.2010. In the petition there was not a word that in whose presence Manga Singh was taken away by the answering- respondents, but in the application under Section 97 of Cr.P.C. (Annexure P-1), the allegation of the petitioner was that the civil suit was filed and the date of hearing was 30.1.2010 and the application is dated 25.1.2010, but the order dated 13.2.2010, (Annexure P-2) was not challenged. The petition was rightly dismissed and the Court was of the opinion that Manga Singh was not in illegal custody of the answering- CRWP No. 474 of 2010 -5- respondents. The petitioner was advised to take the custody of minor son through proper course. The writ petition for habeas corpus is maintainable when minor son is found to be in illegal custody of respondents, but when the custody of minor son was handed over to the answering-respondents as per writing (Annexure R-1), then no question of illegal confinement. The best remedy with the petitioner was to file a petition under the Guardian and Wards Act, 1890. From the last five/six years Manga Singh is in the custody of answering-respondents and is being looked after as their real son. The answering-respondents are related to the petitioner. She has one more son and daughter and being poor is not in a position to maintain the minor son. The welfare of the minor son is to be taken into consideration when the custody of the minor is handed over to the petitioner or minor son is safe in the hands of answering-respondents. Learned counsel for the respondent cited 1998 (1) P.L.R. 660 “Om Pati Vs. Suraj Bhan and 2001 (1) AICLR 85 “Amrita Rani Luthra Vs. S.H.O. And another”. Admittedly, Manga Singh, is at present about 6½ years old and is in the custody of respondents No.4 and 5. Respondent No.5 Jageero @ Toshi is the real sister of Beera Singh (deceased) and respondent No.4-Lakha Singh is her husband and both are related to the petitioner namely Gurmeet Kaur @ Gurmeeto widow of Beera Singh. This fact is also an admitted one that Gurmeet Kaur @ Gurmeeto has three issues namely Manga Singh aged about 6½ years, daughter Satto aged about 4 years and son Jashan aged about 1½ years and this petition was represented in the month of March, 2010. The allegation of the petitioner is that respondents No.4 and 5, had threatened to take away the minor child Manga Singh, forcibly and illegally. Then the petitioner filed a civil suit for permanent injunction and the date of hearing in the civil suit was 30.2.2010 but on 20.1.2010, CRWP No. 474 of 2010 -6- respondents No. 4 and 5, took away the minor child forcibly and illegally. Civil suit at the instance of the petitioner was dismissed as withdrawn on 3.2.20100. Copy of the plaint was not attached with this petition to show on which date and in whose presence the contesting respondents took away the minor child on 20.1.2010. During the pendency of the civil suit petition under Section 97 of Cr.P.C. was filed which was dismissed on 13.2.2010, with the observation that no ground to issue warrants under Section 97 Cr.P.C. infact the petitioner is entitled to take the custody of her natural son through proper course. The answering-respondents have also appeared to contest the petition under Section 97 of Cr.P.C. and their plea was that Manga Singh is not in illegal detention. In fact he is studying in a school. Manga Singh is residing with the contesting respondents with the consent of Beera Singh and his wife and writing to this effect was also scribed. Manga Singh is in the custody of contesting respondents for the last about 6½ years. Annexure R-1 was also thumb marked by the father-in-law of the petitioner and one Sukhjinder Singh. Against the order dated 13.2.2010, no appeal. That means the order has attained finality. The writing (Annexure R-1) shows that the custody of Manga Singh was handed over to the contesting respondents when he was only six months old. According to the petitioner, Manga Singh was five years old when the petition was presented in the month of March, 2010, whereas the allegation of the contesting respondents was that Manga Singh was 6½ years old. If the allegation of the petitioner is taken to be correct that Manga Singh was five years old when the petition was filed in the month of March, 2010, that means for the last 4½ years Manga Singh was in the custody of contesting respondents. One year earlier to the filing of this petition Beera Singh had died, that CRWP No. 474 of 2010 -7- means about 4½ years the petitioner remained silent. No effort was made to get back the custody of minor son. After the death of Beera Singh, the petitioner filed a civil suit, then petition under Section 97 Cr.P.C. As discussed earlier the minor son is in the custody of respondents No.4 and 5, the paramount consideration is the welfare of the minor child. The petitioner is very poor as per para 2 of the petition, she is doing stitching work and domestic work of other people and with this income she used to look after her children. The petitioner has another son and daughter. Admittedly, the contesting respondents had no issue when the writing (Annexure R-1) was scribed but at this stage the contesting respondents have a daughter. No action by the petitioner for about 4½ years during the life time of Beera Singh, shows that custody of Manga Singh was handed over to the contesting respondents by Beera Singh vide (Annexure R-1), although Annexure R-1 has no evidentiary value because the same was not signed or thumb marked by the petitioner. Minor son can only be adopted with the consent of the parents, father alone or mother alone cannot execute any writing while giving the custody of a minor child. Evidence is to be led by both the parties as to whether Manga Singh was forcibly taken away by the contesting respondents on 20.1.2010 or custody of Manga Singh was handed over to respondents No.4 and 5 as per writing (Annexure R-1). The minor son is safe in the custody of contesting respondents, when petitioner has one son and a daughter and is not financially strong particularly when there is writing (Annexure R-1), vide which the custody of minor son was handed over to respondents No.4 and 5. In CRWP No. 793 of 2009, instituted by Jawinder Kaur, for release of minor son and daughter who were in illegal custody of their grand-parents. In that case Anil Kumar father of the minor children was CRWP No. 474 of 2010 -8- employed in the Police Department, who fell ill and was admitted in the hospital where he died. The dead body was taken to his village for cremation. Minor children alongwith their mother attended the cremation and after the cremation, minor children were taken away forcibly by their grand-parents. The mother of the children was given merciless beatings and was thrown out of the house after taking the custody of the minor children. While disposing of the writ petition it was held that the writ in the nature of habeas corpus is maintainable, when the minor children were taken away forcibly by the respondents. The custody of minor was ordered to be restored to the mother, keeping in view the welfare of the minor, but in the present case the custody of a minor child was handed over to the contesting respondents as per writing (Annexure R-1). For about 4½ years the petitioner remained silent. The minor son is studying well in the custody of respondents No.4 and 5. Civil suit was got instituted and withdrawn. Petition under Section 97 Cr.P.C. was also dismissed. In 2009 (1) R.C.R. (Criminal) 974 Gurmeet Kaur Batth (supra) writ was filed by the mother to claim the custody of minor child aged about 4 years who is in custody of grandmother. While allowing the writ petition it was held that the mother being the natural guardian can file habeas corpus to claim the custody but the abovesaid authority is not helpful to the petitioner because in that case the minor child was born to petitioner in a foreign country. The petitioner had matrimonial dispute with her husband and started living separately. Respondent had also filed a petition under Section 7 of the Guardian and Wards Act, 1890. Her husband was unemployed. Then parents of her husband namely the respondents have gone to foreign country where husband of the petitioner allowed his parents to take his son with them to India with the assurance that the child will stay with grandparents only for 3-4 CRWP No. 474 of 2010 -9- months. The petitioner was not willing to hand over the custody of the minor child to grandparents but under pressure of her husband she agreed her son being taken to India by her mother-in-law. There was a order of the Family Court in Canda that minor child shall remain in the custody of mother and the minor child shall be with the respondent- father every Saturday for the entire day or alternate week ends. Ultimately, the Canadian Court ordered the custody of minor child to his mother. The allegation of the respondent was that the child was entrusted to the respondent mother-in-law by the petitioner herself. But in the present case there was no petition before the Guardian Judge, either by the petitioner or at the instance of the contesting respondents. In fact the civil suit and the petition under Section 97 Cr.P/C. at the instance of the petitioner were dismissed. In 1988 (1) R.C.R. (Criminal) 672 Ms. Janak Kumari (supra) writ petition was also filed by the mother of minor girls aged about 13 and 12 years respectively against the respondent-husband, who obtained the exparte decree of divorce on 6.7.1978 and had taken away the minor daughters with him on 14.3.1978. The petition was accepted. Custody of the minor girls residing with their step mother was ordered to be handed over to the natural mother but this authority cited by the counsel for the petitioner is also not helpful to the petitioner because in the abovesaid authority the minor girls remained with the mother who brought them up. Mother had dispute with her husband. The husband obtained exparte decree of divorce and had contracted second marriage. The minor girls were living with their step mother, but in the present case Beera Singh (deceased) during his life time had given the custody of minor son to his real sister and brother-in-law because Beera Singh had two sons and one daughter and was not in a position to maintain the minor children. This fact is correct one when the CRWP No. 474 of 2010 -10- petitioner also pleaded that she is doing stitching work and domestic work in the house of others to maintain her minor children. In 1998 (1) P.L.R. 660 Om Pati (supra) petition under Section 226 of the Constitution of India, filed by the mother to get the custody of child after the death of her husband. The petitioner contracted second marriage and leaving her one year old daughter with grand-parents of the child. The grand-parents bringing up the child and giving her education. Habeas corpus petition after 8 years claiming the custody of child, but the petition was dismissed on the allegation that custody of child with grand-parents was not initially illegal or forcible. Secondly, without detailed evidence as to how the welfare and the interest of minor child can be best served cannot be decided. Parties are directed to move under Guardians and Wards Act. In 2001 (i) AICLR 85 Amrita Rani Luthra (supra) petition for habeas corpus by the mother, sole consideration is to find out as to whether the alleged detenus are in fact and reality, in illegal custody of respondents. Children are living happily and of their own volition with their uncle and grand-mother. Petition dismissed. Mother permitted to meet children till such time they attain majority for two hours in a week. In the present case Manga Singh was 6 months old when as per writing (Annexure R-1) his custody was handed over by Beera Singh to his real sister and her husband. During the life time of Beera Singh, no effort by the petitioner to get back the custody of Manga Singh. Beera Singh, died one year earlier to the filing of writ petition in the month of March, 2010, then petitioner claimed the custody of the minor child on the allegation that the minor was taken away forcibly by respondents No. 4 and 5 on 20.1.2010. At present Manga Singh is in custody of respondents No.4 and 5 and is going to school. Petitioner no doubt is the mother of Manga Singh but she is a poor lady and has no CRWP No. 474 of 2010 -11- source of income. Paramount consideration is the welfare of the minor child. Custody of minor child with the contesting respondents is as per writing (Annexure R-1). Manga Singh was not forcibly taken away by the contesting respondents. Initially, custody of Manga Singh with the contesting respondents was not illegal. Parties are to lead evidence. Without evidence not safe to opine that custody of Manga Singh with respondents No.4 and 5 is illegal. Although the writ petition is maintainable when allegation is that the custody of the minor with the respondents is illegal. In the light of above discussion the petitioner is advised to move under the Guardians and Wards Act. Till Manga Singh attains majority respondents No.4 and 5 are directed to allow the petitioner to meet Manga Singh on Saturday and Sunday for two hours. For the reasons recorded above, the present writ petition without merits is dismissed. August 10, 2010 ( JORA SINGH ) rishu JUDGE