Criminal Misc. No.M-26661 of 2009 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-26661 of 2009 Date of decision : 29.10.2009 Paramjit Kaur and another .....Petitioners Versus State of Punjab and others ...Respondents **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Navkiran Singh, Advocate for the petitioner. Mr. B.B.S.Teji, AAG., Punjab. Mr. J.S.Bhatti, Advocate for respondent no.4. Mr. K.S. Minhas, Advocate for Mr. Anupam Gupta, Senior Standing Counsel, U.T. Chandigarh. S. D. ANAND, J. Though there were different reliefs sought in this petition, Mr. Navikran Singh states that, for the moment, he confines his relief to the grant of interim custody of the female child of petitioner no.2. He has assisted this Court on that point only. Mr. J.S.Bhatti, representing respondent no.4 in this case, challenges the very competence of the request in view of the fact that no relief to that effect has been sought in the petition. He has otherwise assisted this Court on that point. Before embarking upon the adjudicatory exercise, the facts may be noticed in the first instance:- Petitioner no.1 Paramjit Kaur is married to Harjinder Singh, a Criminal Misc. No.M-26661 of 2009 -2- *** son of respondent no.4-Charanjit Kaur @ Charno wife of Major Singh; while petitioner No.2-Manpreet Kaur is a daughter of aforementioned Major Singh and Charanjit Kaur @ Charno. Respondent no.4 was running a brothel at her residence, in connivance with her son Harjinder Singh and her other daughter (non-petitioner) Harpreet Kaur. The petitioners took upon themselves to expose the sex racket and made a complaint in the relevant behalf to the Senior Superintendent of Police, Ludhiana. On that basis, the CIA Staff -I raided the premises and recovered a number of girls, who were part of sex racket. The conducting of that raid was reported by the Press in issue dated 23.7.2009 of Dainik Jagran. Thereafter, petitioner no.1-Paramjit Kaur left her matrimonial house, alongwith her two years old daughter and started putting up with her brother Satnam Singh. Petitioner No.2-Manpreet Kaur, who had obtained a panchayati divorce from her husband, also left her natal house. In terms of Panchayati divorce, she had retained the custody of her six years old daughter. Petitioner no.2-Manpreet Kaur also left the house and is presently lodged at Nari Niketan. The petitioners applied for grant of a direction to respondent no.2-Senior Superintendent of Police, Ludhiana, to protect the life and liberty. They also applied for a direction to that very respondent to ensure that free and fair investigation is conducted into the case. Apart therefrom, the petitioners also applied for the issuance of a direction to respondent no.4 to produce six years old child of petitioner No.2-Manpreet Kaur “as the petitioner no.2 apprehends her child being involved in sex trade by the respondent no.4.” These are the averments made in course of the petition. On 14.10.2009, learned counsel appearing on behalf of Criminal Misc. No.M-26661 of 2009 -3- *** respondent no.4 informed the Court that he would be filing a fact-based reply in the matter. However, no reply came to be filed till the matter was argued in the above noticed context27.10.2009. It is, thus, apparent that the counsel for the parties opted to aruge the matter on As Is Where Is Basis. The State, too, did not file a formal reply to the petition. During the pendency of this petition, petitioner no.1-Paramjit Kaur opted to withdraw the allegations made in the course of the petition. A coordinate Bench of this Court ( Mahesh Grover, J.), in its order dated 6.10.2009, noticed that petitioner-Paramjit Kaur had owned up the contents of the petition at the time of inter-action which the Bench had on 6.10.2009. The Bench formed a prima-facie opinion to the effect that “petitioner No.1 is a compulsive liar and not coming out with truth”. The Court was of the opinion that conduct of Paramjit Kaur was contumacious and that it amounted to commission of an act of contempt “committed on the face of the Court which warrants penal consequences.” However, it was thought appropriate to await the report of the SSP. At the same time, learned counsel for the petitioner was allowed to withdraw his power of attorney on behalf of the petitioner No.1-Paramjit Kaur in the light of the facts and circumstances aforementioned. Simultaneously, SSP concerned was directed to “immediately verify the veracity of the allegations made by the petitioners including those made by Paramjit Kaur and file a substantial report”. Petitioner no.2 shall henceforth be referred to as the petitioner. In this report, SSP, owned up that a case (FIR No.159 dated 21.7.2009) under Sections 3,4,5 and 6 of Immoral Traffic Prevention Act, 1956 (hereinafter referred to as “the Act”) had been registered on the basis of the outcome of a raid conducted at the house of respondent no.4 and that as many as eleven persons were arrested from the spot. It was Criminal Misc. No.M-26661 of 2009 -4- *** otherwise reported by the SSP that police is keeping strict check upon the respondent no.4 and that she is presently not running any brothel. The officer denied that case had been registered at the instance of the petitioner. It was reiterated that the raid had been conducted on the receipt of a secret information. It was found that the minor daughter of petitioner No.2-Manpreet Kaur was in the custody of respondent no.4 who had held an assurance that “she is taking care of the minor daughter of the petitioner no.2 and the petitioner no.2 had abandoned her.” However, respondent no.4 “specifically got recorded that she has no objection to handover the minor girl to her mother i.e. petitioner no.2”. Mr. J.S.Bhatti, learned counsel for respondent no.4, raised a preliminary objection, at the very outset, to the very maintainability of the relief sought by Mr. Navkiran Singh, learned counsel for petitioners. It was argued that the petitioner cannot be head to argue for the handing over of custody of her child because no such relief had been sought in the petition. Mr. Navkiran Singh, learned counsel for the petitioner, on the other hand, contested the factual averment aforementioned. It was pointed out that there was a precise relief sought in the course of para 13 (iii) of the petition whereby a direction was sought to respondent no.4 “to produce the minor child of petitioner no.2 namely Amritpreet Kaur who is aged six years in this Hon'ble Court, as the petitioner no.2 apprehends her child being involved in sex trade by the respondent no.4”. It was argued that Court may not go into the aspect of mere technicalities and should assume therefrom that the petitioner had sought the custody of the child. It is common ground otherwise that final controversy about the custody of the child has to be determined at the hands of learned Guardian Judge concerned in terms of the provisions of the Hindu Minority and Criminal Misc. No.M-26661 of 2009 -5- *** Guardianship Act,1956. I find myself in agreement with the plea on behalf of the petitioner insofar as the preliminary objection is concerned. This Court as the sentinel of public interest in general and minors and person in disability in particular, cannot allow the raising of an objection qua the maintainability of relief sought just for the technical reason that the relief for interim custody had not in so many words applied for in the petition. The direction sought has to be appreciated in the light of the averments made in the course of the petition in totality. In the course thereof, the petitioner had made precise allegations against her mother, her husband and her sister of running a sex racket at their residential house and that she had the apprehension that her female child aged six years may also not be involved into it. It follows therefrom that she wanted interim custody of the child. On the factual front, it is beyond the pale of controversy that respondent no.4-Charanjit Kaur @ Charno and others is facing a prosecution under Sections 3,4,5 and 6 of the Act on an allegation that she was running a brothel from her residential house. Those giving company at the trial, as co-accused, include her other daughter and husband of the petitioner. Ofcourse, learned counsel appearing on behalf of respondent no.4 averred that the prosecution allegations in the case aforementioned are false but he, too, is not in a position to deny the pendency of the prosecution aforementioned. There also is no controversy that the petitioner is own daughter of respondent no.4. It is also beyond the pale of controversy that another sister of petitioner is also a co-accused in that case. The Petitioner claims that it is she and her co-petitioner Criminal Misc. No.M-26661 of 2009 -6- *** Paramjit Kaur who had furnished the relevant information to the police and that it is on the basis of information furnished by them that the raid was conducted. The police officials are, however, not in a mood to give them credit. They have raised a plea that they acted on the basis of a secret information. Be that as it may, the factum of pendency of prosecution case against Charanjit Kaur @ Charno is not in dispute. There are, thus, presently two claimants for the interim custody of the six years old child of petitioner no.2. The claimants are maternal grand mother (respondent no.4 of the child) and the own mother of child (petitioner no.2). In order to judge their comparative merit, the following facts may be noticed:- Respondent no.4 is a female who alongwith her daughter and son-in-law is facing a prosecution under Sections 3,4, 5 and 6 of the Act. She also informed the police that she had no objection to hand over the minor child to latter's mother. Yet another daughter of respondent no.4 is also arrayed as an accused in that case. The allegation is that she was a prostitute and was into the flesh trade. In contrast thereto, the petitioner is the real mother of minor child, though she herself lodged in Nari Niketan, her lodgment over there was ordered by a Coordinate Bench of this Court vide order dated 22.9.2009, on her own request in the petition itself. In view of the fact that petitioner no.1-Paramjit Kaur has deserted her co-petitioner in favour of respondent no.4, we need not go into the correctness of circumstances under which the former did not go over to Nari Niketan, in terms of the orders of a Coordinate Bench of this Court (Mahesh Grover, J.) It would be relevant to notice here that the divorced husband of the petitioner also surfaced at the hearing, without his being a party to Criminal Misc. No.M-26661 of 2009 -7- *** the cause. Learned counsel appearing on behalf of the respondent no.4, had made a suggestion (on his appearance before this Court) that the custody of the child could be given to him. In the context of that suggestion, the following statement of his was recorded:- “I am earning my living by working as a Driver at Ludhiana. There has been a panchayati divorce between me and Manpreet kaur. I have seen the panchayati divorce, which may be marked as Annexure C-1. I have studied upto 8th standard. I identify my signatures at point 'A' at Annexure C-1. I did hand over the custody of my minor female child to Manpreet Kaur but subject to a rider that I would be entitled to take her to my house as and when I want it. This might not have been recorded in Annexure C-1, which otherwise states that my child, on attaining the age of discretion, would be entitled to stay with either me or Manpreet Kaur, as per her own choice. I have two married sisters. As I am convinced about the false implication of my mother-in-law (respondent no.4), I did not consider it appropriate to take my child out of her custody and to hand her over to two married sisters. Manpreet Kaur left her house after furnishing information to the police. She abandoned the child and the child continued to stay with Charajit Kaur-respondent no.4. I am earning enough money to bring up my child. I own two killas of land at Kurali, which is under the cultivation of my father and brother.” This Court does not find him worthy of consideration for the purpose in the context. He is a person who had, on his own, handed over Criminal Misc. No.M-26661 of 2009 -8- *** the custody of the female child to his divorced wife. He did not consider it worthwhile to take his female child out of the custody of his mother-in-law who was facing a prosecution under Sections 3,4,5 and 6 of the Act. He did not consider it appropriate to hand over his female child to either of his two married sisters. In the circumstances of the case, earnest endeavour was made to ascertain the wishes of the child herself. When it tried to speak her on 24.10.2009, she did not respond to my questions. Then, on consensual basis, the following order was passed by this Court on 24.10.2009, with a view to be able to have some idea about the wishes of the child :- “While acknowledging that the ascertainment of wishes of the child becomes all more important in the light of the allegations and counter allegations levelled by the parties in this case, learned counsel suggest that matter pertaining to the ascertainment of the wishes may be left to Mr. Sunil Chadha, Advocate who happens to be present in the Court. They further state that the child could be taken to the residence of Mr.Sunil Chadha, Advocate tomorrow and he could exert to find out the wishes of the child in the homely atmosphere. This consensual suggestion has been put by the Court to Mr. Sunil Chadha, Advocate who very graciously accept it. He states that it will be possible for him to create a congenial atmosphere at home by ensuring that the child plays with his son of an appropriate age group. In the presence of the learned counsel, the respective pleas of the parties have been intimated to Mr. Sunil Chadha who, while accepting the Criminal Misc. No.M-26661 of 2009 -9- *** consensual suggestion aforementioned, wanted to be told about the backdrop of the circumstances which only would enable him to ascertain the wishes of the child.” In the confidential report furnished by Mr. Sunil Chadha, Advocate, he had informed that he too found himself in the same predicament and the wishes of the child could not be ascertained. In that view of things, the Court has no option but to proceed to dispose of the controversy about interim custody of the child on whatever material is available on the file. It may be noticed here that I did call upon the learned counsel for the parties to indicate if they could make a unanimous suggestion about the place where the minor child could stay, as an interim measure, till the disposal of the petition under the the Hindu Minority and Guardianship Act,1956. In their self-serving statements, both the learned counsel (appearing for the petitioner and also respondent no.4) made a suggestion that the respective parties could have the custody of the child and the party opposite could have visitation right. The learned counsel were not in a position to indicate a common place where the child could be put up as an interim measure. Both the learned counsel were otherwise agreeable that the ultimate adjudication of the controversy about custody of the minor child has to be done by the Guardian Judge. In that context, Mr. Navkiran Singh, learned counsel for the petitioner assured that he would file a petition (for the legal custody of minor female child of the petitioner)) within seven days of pronouncement of the orders. Further, both the learned counsel was agreeable that they would render all assistance in the expeditious disposal of that petition by the learned Guardian Judge. Criminal Misc. No.M-26661 of 2009 -10- *** The following facts can, thus, be safely culled out from the above discussion in the context of adjudging the suitability of who exactly should have the custody of the child, as an interim measure:- a) The maternal grand mother, who is presently having the custody of the child is facing a prosecution under Sections FIR No.159 dated 21.7.2009 under Sections 3,4,5 and 6 of Immoral Traffic Prevention Act, 1956 on a charge that she was found running a brothel when the police raided her residential premises on 21.7.2009. The factum of pendency of prosecution is unaffected by the fact whether the police acted on the basis of a complaint made by petitioner or it acted on the basis of a secret information. b) The real aunt (mother's sister of the minor child), who is putting up with respondent no.4-grand mother of the child, is also facing that prosecution and so also is son-in-law of respondent no.4. c) The controversy about whether the petitioner left her parental house after making the impugned complaint (to the police) against her own mother or whether she abandoned the child otherwise notwithstanding, it is undisputed that petitioner aforementioned is presently putting up at the Nari Niketan of her free volition and she had applied to this Court for grant of orders to that effect. d) This Court does not find the father of the child to be worthy of consideration, for being given the interim custody of the minor child, particularly when he had himself parted with her custody in favour of his divorced wife i.e. petitioner no.2- Manpreet Kaur and he allowed his female child to be in the Criminal Misc. No.M-26661 of 2009 -11- *** custody of his mother-in-law i.e. respondent no.4 who is facing the aforesaid prosecution. He does not deserve consideration in the relevant behalf, particularly because he did not, at all, consider handing over the custody of female child to his two married sisters, even when it had come to his notice (as per his averment) that his divorced wife had abandoned the child. e) It has not been possible for this Court to find out wishes of the child despite the endeavours made in the Court and also otherwise. f) Respondent no.4 had herself told the police that “she has no objection to hand over the minor girl to her mother i.e. petitioner no.2.” In the light of the foregoing discussion, this Court is of the opinion that the continued lodgment of the female child Amritpreet Kaur at the house under the occupation of her maternal grand father and Aunt would not be conducive to her meaningful upbringing, particularly when she is of an impressionable age and those two ladies are facing a fairly serious charge. It will be for the learned Chief Judicial Magistrate, Ludhiana to get this order implemented forthwith. It is, however, made clear that on the handing over the custody of the minor child to the petitioner, the latter shall continue staying over at Nari Niketan only where, this Court was told, arrangements exist for women inmates being able to bring up their minor children. The grand mother of the minor child i.e. respondent No.4 and other relations of the child shall be entitled to visit the child at the Nari Niketan twice a week. Before reaching there, the relations desirous of visiting the child shall intimate the date and timing of their visit. On reaching Nari Niketan, their names and time of arrival shall be entered in the Register and they would be entitled to spend time with the child for a duration of five hours on each visit. It would be the responsibility of the Nari Criminal Misc. No.M-26661 of 2009 -12- *** Niketan authorities to ensure safe passage for visiting relations. The petition for custody of the child shall be filed by the petitioner in the Court of Guardian Judge, Ludhiana, on 5.11.2009. On that date, respondent no.4 shall also put in appearance in person or through a duly authorised counsel. The learned Guardian Judge shall dispose of the petition itself within six months from 5.11.2009. This order is in consonance with the order passed by this Court on judicial side in Civil Misc. No.10041-CII of 2009 in/and Civil Revision No.1586 of 2009. It would not be out of place to point out here that, in the context of the apparently alarming long pendency-related averment made in the course of that petition, this Court had directed the Registry “ to obtain a detailed report from all the concerned Courts in the States of Punjab, Haryana and Union Territory, Chandigarh about the pendency of such matters and also the present status thereof the relevant information has been received from all the Sessions Divisions.” A perusal of the information obtained in the context of the pendency of such matters made startling revelations. It was found that the matters pertaining to the year 1998-99 were pending. This Court made the following observations in that case:- “It is to state the obvious that the system of dispensation of justice is ordained by the Constitution to adjudicate upon the matters expeditiously. In view, however, of the large pendency of various priority categories, the only option available to the Courts is to prioritise the matters for disposal. That the dockets in the Courts are heavy is beyond the pale of controversy. At the same time, the priority areas have to be identified and non priority matters have to be compulsively relegated for disposal to a little later period. Therein lies the Criminal Misc. No.M-26661 of 2009 -13- *** success of the personnel manning the constitutionally mandated judicial system. Needless to state, the matters pertaining to the custody of a child require utmost expeditious consideration. In case of embitterment between the estranged spouses, it is child/children who actually bear the burnt. They are deprived of the simultaneous love and affection of both the parents. It is they who suffer emotionally, and in silence too. The Judicial Courts (where ever the cases of indicated category are pending) are mandated to take up the cases of indicated category on priority and ensure their disposal expeditiously. If there is any peculiar difficulty experienced by the Judicial Officers concerned in the final disposal of that matters, the concerned Presiding Officers shall be under a duty to intimate facts hindering the progress to the concerned learned District Judges who shall pass on that information to this Court. Insofar as the matters which are already six months old are concerned, the concerned Courts shall ensure their final disposal within three months from the date of this order. It will be the personal administrative responsibility of the District Judges to keep a tab on the progress of the cases of indicated category. If a District Judge finds any dereliction on the part of the concerned Judicial Officers in the expeditious disposal of cases of that category, he shall pass an appropriate order on the administrative side and, if required, refer the matter to this Court for appropriate orders in the Criminal Misc. No.M-26661 of 2009 -14- *** context. The Registrar (Vigilance), Punjab and Haryana shall be the nodal Officers for the supervisory exercise. If required the concerned Courts shall be entitled to consider duly notified preponement of the priority area litigation of the indicated category”. The petition shall stand disposed of accordingly. It is made clear that the learned Guardian Judge shall dispose of the petition completely unfazed by the observations made by this Court in the course of this order. These observations were made to adjudge the comparative inter-se suitability of the maternal grand mother and the mother to have the interim custody of the minor female child of the latter. It is also made clear that the noticing of pendency of the prosecution shall not be taken as an expression of opinion on merits as the trial is yet to