CRWP No. 2403 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No. 2403 of 2010 Date of decision: 23.02.2011 Sakina ........ Petitioner Versus State of Punjab and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mr. C.L. Pawar, Advocate, for the petitioner. Mr. K.S. Dadwal, Advocate, for respondents No.3 to 7. Mr. P.S. Sidhu, Additional Advocate General, Punjab. JORA SINGH, J. This petition is under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus, directing respondent No.2 to secure the release of Rubina from the illegal and unlawful custody of respondents No. 3 to 7. That petitioner was married to respondent No.3 i.e. Rukam Din about 8 years back and from this wedlock there is one minor daughter namely Rubina aged about 6 years. In the month of April, 2009, petitioner and her minor daughter were deserted from the matrimonial house by respondent No.3 to bring Rs. 2 lacs for the purchase of buffalo. After that respondent No.3 filed Criminal Writ Petition No. 1111 of 2010 titled “Rukam Din Vs. State of Punjab” on the CRWP No. 2403 of 2010 -2- allegation that his wife (Sakina) is in the illegal and unlawful custody of her relatives. Petitioner had appeared in that writ petition and made statement that she does not want to accompany Rukam Din and the petition was dismissed vide order dated 8.7.2010. That on 9.7.2010, Rubina was forcibly taken away by respondents No. 3 to 7. Petitioner was given beatings and threatened to eliminate if the matter was reported to the police. Respondent No.4-Roshan Din, is the father-in- law of the petitioner and he filed false and frivolous complainant against the relatives of the petitioner on the allegation that respondent No.3 (Rukam Din) and Rubina were kidnapped by Makhan, Tittar, Bagha, Gogi, Pheru, Shareef and Gulla. That respondent No.4 filed Criminal Miscellaneous No. M 31997 of 2010 titled “Roshandin Vs. State of Punjab and others”, and in that case notice of motion was issued. In pursuance of the notice respondents No.3 to 7 filed reply to contest the writ petition inter alia on the ground that petition is not maintainable as per Section 7 of the Guardian and Wards Act, 1890 (hereinafter referred as 'the Act'). Respondent No.3 is the father of Rubina and minor is in the lawful custody of her father. That the present petition was filed with connivance of Jumman, Titar and others. That two days before Baisakhi 2009, petitioner along with the minor left the home to see her ailing father who unfortunately died. Subsequently, when petitioner failed to return then respondents came to know that she was detained by Gulla, Gogi, Pherru, Nawab, Ganni @ Zakir and Swaran Din. Respondent No.3 filed CRWP No. 1111 of 2010, for the release of Sakina from the illegal custody of aforesaid persons but while appearing in Court, Sakina after meeting respondent No.3 opted not to CRWP No. 2403 of 2010 -3- go with respondent No.3 Rukam Din. On the intervening night of 12/13.5.2010, when petitioner had gone to attend the marriage of her sister-in-law then she was abducted by Meedha and some other unidentified persons. Petitioner was raped against her wish. FIR No. 38 dated 13.5.2010, under Sections 363/366-A IPC was got registered. After her recovery, petitioner got recorded her statement under Section 164 Cr.P.C. and thereafter, filed CRM No. M 15391 of 2010, to protect her life and liberty. Petition was against Meedha, Gammi and Rano i.e. respondents No. 4 to 6. On the intervening night of 8/9.7.2010, Makhan and others had kidnapped Rukam Din and Rubina. Roshan Din- respondent No.4, father of Rukam Din, gave an application dated 9.7.2010 to SHO, Police Station Mahilpur. When no efforts were made by the police then respondent No.4 Roshan Din, filed CRM No. M 31997 of 2010 and ultimately FIR No. 136 dated 23.11.2010 under Section 364 IPC, was registered and in connection with the investigation of that complaint, when police started raiding their houses then Jumman, who was one of the named person and with whom petitioner is residing got filed the writ petition. Learned counsel for the petitioner argued that Rubina is the minor daughter of the petitioner. She is in the illegal and unlawful custody of respondents No. 3 to 7. Direction be given to respondents No. 3 to 7 to produce Rubina in Court. Learned counsel for contesting respondents No. 3 to 7 argued that Rukam Din respondent No.3 is the father of Rubina. Respondent No.4 Roshan Din is the father of Rukam Din (respondent No.3). Respondent No. 5 is the mother whereas respondents No. 6 and CRWP No. 2403 of 2010 -4- 7 are the brothers of Rukam Din-respondent No.3. Custody of minor daughter in the hands of her father is not illegal. Earlier CRWP No. 1111 of 2010 was filed for the release of the petitioner from the custody of Gulla and others. Petitioner appeared in Court and made statement that she does not want to accompany her husband. On the intervening night of 12/13.5.2010, petitioner was kidnapped by Meedha and others. She was raped against her wish. Ultimately FIR No. 38 dated 13.5.2010 under Sections 363/366-A IPC was registered. Petitioner also filed CRM No. M 15391 of 2010, to protect her life and liberty. On the intervening night of 8/9.7.2010, respondent No.3 was kidnapped by Makhan and others, then father of respondent No.3 Roshan Din (respondent No.4) gave complaint to SHO, Police Station Mahilpur. When no action was taken then CRM No. M 31997 of 2010, was instituted by Roshan Din. After issuance of notice FIR No. 136 dated 23.11.2010 under Section 364 IPC, was registered. Petitioner is residing with Jumman and he is one of the accused. Present writ petition was got filed by Jumman. Remedy with the petitioner is to file petition under Section 7 of the Act. Submission of the learned counsel for the contesting respondents No.3 to 7 seems to be reasonable one. Undisputedly, petitioner is the mother whereas respondent No.3 is the father of detenue namely Rubina. Respondents No.4 to 7 are also related to Rukam Din-respondent No.3. According to the petitioner, Rubina in the illegal and unlawful custody of respondents No. 3 to 7 but custody of Rubina cannot be illegal or unlawful. Earlier CRWP No. 1111 of 2010, was instituted by Rukam Din-respondent No. 3 on the allegation that CRWP No. 2403 of 2010 -5- present petitioner is in illegal and unlawful custody of her relatives. Petitioner appeared in Court and stated that she does not want to accompany Rukam Din. Ultimately, petition was dismissed on 8.7.2010. Allegation of the contesting respondents is that on the intervening night of 12/13.5.2010, petitioner was abducted by Meedha, Gammi and Rano along with 6 other unidentified persons. Petitioner was raped against her wish. Ultimately, FIR No. 38 dated 13.5.2010, under Sections 363/366-A IPC was registered. Annexure R-3/1T is the copy of the FIR. CRM No. M 15391 of 2010, was also moved by the present petitioner to protect her life and liberty. Ultimately FIR No. 136 dated 23.11.2010, under Section 364 IPC, was registered. Annexure R-3/3 is the copy of the FIR. In case, Rubina was in the illegal and unlawful custody of respondent No.3 then while appearing before the Court in CRWP No. 1111 of 2010, filed by Rukam Din, petitioner could easily state that minor daughter is also in her custody but she is not ready to accompany Rukam Din. In case direction is given to respondents No. 3 to 7 to produce Rubina then without evidence custody of Rubina cannot be given to the petitioner. Rubina is in the custody of her father, grand- father, grand-mother and uncles. Custody cannot be illegal. Both the parties are to lead evidence as to whether Rubina is in illegal and unlawful custody of respondents No.3 to 7 or custody of Rubina with respondents No. 3 to 7 is legal and lawful. Writ petition under Article 226 of the Constitution of India, CRWP No. 2403 of 2010 -6- for the custody of minor child is maintainable if the Court is of the opinion that custody of minor child with the respondents is illegal and unlawful. Matrimonial dispute amongst the petitioner and her husband. Petitioner has not filed application for maintenance or divorce. No petition for restitution of conjugal rights. Without leading evidence father and mother wanted the custody of minor child. When there is efficacious remedy with the petitioner to get custody of minor child by filing petition under Section 7 of the Act, then I am of the opinion that instant petition deserves to be dismissed when number of FIRs by one party against other. For the reasons recorded, instant writ petition without merits is dismissed. February 23, 2011 ( JORA SINGH ) rishu JUDGE