Criminal Writ Petition No. 2606 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Writ Petition No. 2606 of 2011 Date of Decision: 19.12.2011 Jasbir Kaur ... Petitioner Versus The State of Punjab and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. C.L. Pawar, Advocate for the petitioner. Mr. J.S. Sandhu, Assistant Advocate General, Punjab, for respondents No.1 to 3. Mr. S..S. Majithia, Advocate for respondents No.4 to 7. Kanwaljit Singh Ahluwalia, J. Jasbir Kaur, petitioner, was married with respondent No.4- Naresh Kumar Midha, on 2.11.2008 according to customary rites and traditions. From womb of the petitioner and loins of respondent No.4, a son namely Vivek was born, who, at present, is stated to be 1½ year old. It is a case of matrimonial dispute wherein petitioner-wife and respondent No.4-husband have parted. The present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ, in the nature of Habeas Corpus, directing respondents No.4 to 7 to hand over custody of the Criminal Writ Petition No. 2606 of 2011 2 minor child to the petitioner. Respondent No.4-Naresh Kumar, as stated earlier, is husband of the petitioner, whereas Karnail Chand and Satya, respondents No.5 and 6, are his parents and Purshotam Lal, respondent No.7, is his brother. Pursuant to the order dated 14.12.2011, respondent No.4 has produced the child in the Court. Mr. Sandeep Majithia, Advocate, appearing for respondents No.4 to 7, has vehemently opposed the prayer made in the present writ petition and submitted that the same cannot be entertained. He has contended that earlier, the petitioner filed Criminal Writ Petition No. 630 of 2011, which was disposed of by a Co-ordinate Bench of this Court on 27.7.2011 by directing the Station House Officer, Police Station Nakodar, to decide the representation dated 28.1.2011. To controvert this argument, learned counsel for the petitioner, has submitted that till today, the Court has not determined as to who is entitled to the custody of the child. Admittedly, son of the petitioner and respondent No.4 is less than five years of age. This Court, in Gurmeet Kaur Batth v. State of Punjab and Others 2009(1) Recent Criminal Reports 974, has held that mother, being a natural guardian, can file a petition for issuance of a writ in the nature of Habeas Corpus and claim custody of the child. To arrive at the above said conclusion, in the above said case, this Court has relied upon various judgments of Hon'ble the Apex Court and especially the judgment rendered in Marilynn Ainat Dhillon Gilmore alias Anita Dhillon v. Marget Nijjar 1983(1) Recent Criminal Reports 396, wherein, in its para No. 17, it was observed as under:- Criminal Writ Petition No. 2606 of 2011 3 “17. Children need the love and care of both parents. If they cannot get it from both then at least they must get it from one. The course which would deprive them of both must be avoided and adopted as the last resort. Children are required to be in the custody of someone until they attain their majority. The Court in passing an order in writ jurisdiction in the matter has to deal it in equitable manner. It has also to give due weight to the claim of the respective parents founded on human nature and generally what is equitable and just. And irrespective of the rights and wrongs of the contending parents, the welfare of the children is the supreme consideration when employing the remedy of habeas corpus. It has rightly been observed by legal commentators that the proceedings of this kind partakes of the incidence of a suit in equity and is considered to by one in rem, the child being the res.” Recently, the view taken by this Court in Gurmeet Kaur Batth's case (supra) has received approval of Hon'ble the Apex Court in Ruchi Majoo v. Sanjeev Majoo 2011(3) Recent Civil Reports 122, wherein it was held as under:- “37. We do not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion state the law Criminal Writ Petition No. 2606 of 2011 4 differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the court to determine mutual rights and obligation of the parties, including the question whether a court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court or this Court or out of proceedings under the Guardian & Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42, Sarita Sharma's case (supra), V. Ravi Chandran's case (supra), Shilpa Aggarwal's case (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody Criminal Writ Petition No. 2606 of 2011 5 proceedings launched under the Guardian & Wards Act. Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody (emphasis supplied). The Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran's & Shilpa Agarwal's cases (supra) or refuse to do so as was the position in Sarita Sharma's case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its Criminal Writ Petition No. 2606 of 2011 6 competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorial jurisdiction.” In view of the settled legal position, this Court, while exercising its writ jurisdiction, wherein a prayer has been made for issuance of a writ, in the nature of Habeas Corpus, can determine as to who, amongst the parents, is entitled to custody of the child taking his welfare to be a paramount consideration. The petitioner, being a mother, is a natural guardian of the child. She can rear the child better than his grand mother respondent No.6-Satya. Hence, the present writ petition is accepted and it is ordered that the petitioner is entitled to custody of the child. However, respondent No.4, being a father of the child, will be entitled to visiting rights. Furthermore, after the child attain the age of five years, respondent No.4 can seek his custody by approaching the Court under the Guardian and Wards Act, 1890. Needless to say, the said Court, considering the evidence adduced by the parties, shall determine as to who is entitled to custody of the child and with whom welfare of the child shall be more secure. (Kanwaljit Singh Ahluwalia) Judge December 19, 2011 “DK”