IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition 1724 of 2011 Date of Decision : November 03, 2011 Riya ....Petitioner Versus State of Punjab and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Ms. Niti Wadhawan, Advocate for Mr. L.M.Gulati, Advocate for the petitioner. Mr. Gagandeep Singh, Advocate for respondents No. 4 to 8. T.P.S. MANN, J. The petitioner has approached this Court under Article 226 of the Constitution of India for the issuance of a writ in the nature of habeas corpus directing respondents No. 2 to 8 to produce her son Armaan, who had been illegally detained by respondents No. 4 to 8. According to the petitioner, she got married to respondent No.4 on 7.12.2008. Ever since her marriage, she used to be harassed and humiliated by her in-laws' family on account of bringing inadequate dowry. They had been asking her to bring more and more dowry from her parents. When she refused to meet their demands, she was mercilessly beaten. At that time, she was having pregnancy of seven months. On 29.9.2009, she delivered a male child, namely, Armaan, Crl. Writ Petition 1724 of 2011 -2- who is now about two years of age. She further claimed that on 9.8.2011, she was given merciless beatings by her in-laws' family, who also called her mother telling her to bring an amount of Rs.2,00,000/- in cash for saving her life. The parents of the petitioner begged from her in-laws' family that they had no money to give as they had already given Rs.2,50,000/-, besides spending more than Rs. 35,000/- at the time of delivery of the child. However, respondents No.4 to 8 turned the petitioner out from the matrimonial home. Even her two years' old son was snatched. She went to her parents' house and apprised them about what had happened with her. A Panchayat was called but the in-laws' of the petitioner remained adamant in their demands and even refused to hand over the custody of the minor child to the petitioner. Apprehending that her in-laws might not eliminate her minor son, she filed the present petition for seeking custody of the child. In their reply, respondents No.4 to 8 averred that the proper remedy available to the petitioner was to file a petition under the Guardian and Wards Act, 1890 and the present petition filed under Article 226 of the Constitution of India was not maintainable. It was also averred that the petitioner had filed the petition with the sole objective of harassing them. She was least bothered about the welfare and well-being of the child which remains paramount consideration in such cases. The petitioner has got no interest in the custody of the minor child or else she would not have waited for atleast twenty three Crl. Writ Petition 1724 of 2011 -3- days to file the present petition after leaving the matrimonial home. They, accordingly, prayed for dismissal of the petition. I have heard learned counsel for the parties and perused the petition and the reply. The question regarding maintainability of the writ petition under Article 226 of the Constitution of India in order to secure the custody of a minor child was considered in Syed Saleemuddin v. Dr.Rukhsana, AIR 2001 SC 2172. After considering catena of judgments on either side, the Hon'ble Supreme Court held that the High Court was vested with jurisdiction under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when the custody of the child had been taken away by one of the natural guardian to the exclusion of other. The relevant observations are as follows:- “After careful perusal of the judgments cited by counsel for the respondents, I am of the considered opinion that in none of the said judgments it has been laid down as a rule of law that in all cases of production and custody of the child by a natural guardian should be dismissed merely because it is for another Court, i.e. Court of Guardian Judge to determine the question of welfare of the minor child in custody of another person. In view of the ratio of the judgments, i.e. Manju Tiwari v. Rajendra Tiwari, AIR 1990 SC 1156 and a Division Bench of Kerala High Court in Eugenia Archetti Abdullah v. State of Kerala, 2005(1) RCR(Crl.) 259, this Court is of the opinion that High Court can exercise Crl. Writ Petition 1724 of 2011 -4- jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when the custody of the child has been taken away by one of the natural guardian by playing a fraud upon the another.” To be fair to respondents No.4 to 8, it may be mentioned here that learned counsel representing them has relied upon Sumedha Nagpal v. State of Delhi and others (2000) 9 SCC 745 wherein it was held that it was neither appropriate nor feasible to investigate the competing claims in respect of custody of a minor child in a petition for habeas corpus and till the issue of guardianship of the child was decided, the custody of the child could not be given to the mother. With due respect, it may be observed that in the aforementioned judgment no other litigation had cropped up between the parents of the child other than the issue regarding custody. Under these circumstances, the Hon'ble Supreme Court expressed its anguish in the act of the parents fighting over keeping the custody of the child by observing that no decision by any Court could restore the broken home or give a child the care and protection of both dutiful parents and no Court welcomes such problems or feels at ease in deciding them but a decision has to be there which could not be repugnant to normal concepts of family and marriage. On the other hand, in the present case, a criminal case stood registered vide FIR no. 28 dated 19.9.2011 at the instance of the petitioner for the offences under Sections 406/498-A IPC Crl. Writ Petition 1724 of 2011 -5- and uptil a day before the present hearing, respondent No.4, who is father of the child, was behind the bars and in his absence the child was staying with his father, mother and two sisters, who stand arrayed as respondents No.5 to 8. If the things have come to such a pass, it would be appropriate to exercise the jurisdiction under Article 226 of the Constitution of India instead of requiring the petitioner to file an appropriate petition under the Guardian and Wards Act. As of date, Armaan, the son of the petitioner and respondent No.4, is two years and one month old. At such a young age, he would need the comfort which can be best provided by his mother. The welfare of the child is the paramount consideration on which the issue of custody of the child can be considered. Keeping in view the facts and circumstances of the case, the Court feels that the custody of the child ought to be handed over by respondents No.4 to 8 to the petitioner. Resultantly, the petition is allowed by directing respondents No.4 to 8 to hand over the custody of the child to the petitioner. Respondents No.4 to 8, who are present in the Court, have handed over the custody of the child to the petitioner. ( T.P.S. MANN ) November 03, 2011 JUDGE ajay-1