Crl.Writ Petition No.274 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.W.P.No.274 of 2011 Date of decision:24.2.2011 Mandeep Kaur ... Petitioner versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.N.S.Dadwal, Advocate, for the petitioner. Mr.P.S.Sidhu, DAG, Punjab. Mr.G.B.S.Dhillon, Advocate, for respondent Nos.5 to 7. ... JORA SINGH, J. Mandeep Kaur filed this Crl. Writ Petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of habeas corpus directing respondents No.5 to 7 to produce the detenues, namely, Harvir Singh, aged about 2-1/2 years, and Kamaldeep Kaur, aged about 1-1/4 years, and hand over them to her (petitioner), being the mother and natural guardian of the minors. Petitioner is the mother of the detenues. She was married with Lakhvir Singh on 10.3.2007 and was residing with her husband separately from respondents No.5 to 7. On 24.6.2010, Lakhvir Singh had gone to Sri Hem Kunth Sahib, where he suffered heart attack and had expired on 26.6.2010. After the death of Lakhvir Singh, petitioner was given beatings by respondents No.5 to 7 and turned out of the matrimonial house on Crl.Writ Petition No.274 of 2011 2 24.9.2010. Minor children were snatched by respondents No.5 to 7. On 25.9.2010, petitioner moved an application to the Additional Deputy Commissioner of Police, Sherpur Chowk, Ludhiana, and the said application was marked to Women Cell, Ludhiana. Petitioner also moved petition under the Guardian and Wards Act for the custody of minor children and the same is pending. She also filed Crl.Writ Petition No.2353 of 2010 and the same was disposed of with direction to the DSP, Sarabha Nagar, Ludhiana, to dispose of the complaint by passing speaking order within 15 days. Complaint is still pending with the police. DSP, Police Lines, Ludhiana, is pressurizing the petitioner to effect compromise with the private respondents. Notice was issued to the respondents. Respondents No.1 to 4 filed reply on the allegation that representation of the petitioner was considered. Enquiry was completed on 30.12.2010. Petitioner made a statement that she had already filed case in the Court with regard to the subject matter of representation. Petitioner has already taken a sum of Rs.8.00 lacs as permanent alimony before the Panchayat. Children were left in the custody of private respondents. Petitioner also filed case under the Domestic Violence Act. Along with reply, copy of statement of petitioner Mandeep Kaur and report of Assistant Commissioner of Police, Ludhiana, are attached. Learned counsel for respondents No.5 to 7 stated that separate reply is not to be filed. Reply of respondent No.1 to 4 be read as reply on behalf of respondents No.5 to 7. Learned counsel for the petitioner argued that minor children, namely, Harvir Singh and Kamaldeep Kaur are in the custody of Crl.Writ Petition No.274 of 2011 3 respondents No.5 to 7. Husband of the petitioner had gone to Sri Hem Kunth Sahib on 24.6.2010, where he suffered heart attack and had expired on 26.6.2010. Minor children are in the custody of respondents No.5 to 7. Under Guardian and Wards Act, petition is pending. Application for interim custody of the minor children was also moved but the petition is not likely to be disposed of in the near future. Contesting respondents are to delay the disposal of the petition under the Guardian and Wards Act. Learned State counsel and counsel for respondents No.5 to 7 argued that petitioner has filed petition under the Guardian and Wards Act. Application for interim custody of minor children was also moved. Petitioner also filed complaint under the Domestic Violence Act. Both the cases are pending in the Court. Parties are to lead evidence as to whether custody of minor children with respondents No.5 to 7 is legal or illegal. After evidence, Court is to see as to whether custody of minor children is to be given to the petitioner or not. Welfare of the children is of paramount consideration of the Court. Respondent No.5 is the grand mother, whereas respondents No.6 and No.7 are the uncles of the minor children. Learned counsel for respondents No.5 to 7 argued that petition under the Guardian and Wards Act is pending. Court is to opine as to whether custody of minor children is to be given to the petitioner or not. Respondent No.4 is the grand mother. Minor children are in the custody of their grand mother. Before the death of Lakhvir Singh, petitioner and minor children were staying with respondents No.5 to 7. After the death of Lakhvir Singh, petitioner had left the house of her in-laws. Rs.8.00 lacs was paid to the petitioner as permanent alimony. According to the compromise, petitioner had left the minor children in the Village Panchayat. Crl.Writ Petition No.274 of 2011 4 Undisputedly, petitioner is the widow of Lakhvir Singh son of Balwinder Kaur, respondent No.5. Respondents No.6 and 7 are the brothers- in-law of the petitioner. Lakhvir Singh had gone to Sri Hem Kunth Sahib, where he suffered heart attack and death was on 26.6.2010. Before death, Lakhvir Singh along with petitioner and minor children was residing with respondents No.5 to 7. Allegation of the petitioner is that on 24.9.2010, she was given beatings and was turned out of the matrimonial house. Minor children were kept by respondents No.5 to 7, whereas allegation of respondents No.5 to 7 is that after the death of Lakhvir Singh, Rs.8.00 lacs was paid to the petitioner before the Panchayat. After receiving payment, minor children were left in the custody of respondents No.5 to 7. No doubt, Harvir Singh and Kamaldeep Kaur are the minor son and daughter of the petitioner and at present, they are in the custody of respondents No.5 to 7. Petitioner has filed petition under the Guardian and Wards Act against Balwinder Kaur and the petition is pending in the Court of District Judge, Ludhiana, exercising the powers of Guardian and Wards Act under Section 4 of the Guardian and Wards Act. Application for interim custody of the minor children was also moved by the petitioner and the same is pending. Both the parties are to lead evidence and after evidence, Court is to opine as to whether custody of minor children with respondents No.5 to 7 is illegal or unlawful. Whether minor children are safe in the custody of respondents No.5 to 7. Welfare of the minor children is of paramount consideration of the Court and only after evidence, Court is to decide whether custody of minor children is to be Crl.Writ Petition No.274 of 2011 5 given to the petitioner or not. If no evidence is led by the petitioner in support of her petition under the Guardian and Wards Act, then question is whether petition is to be accepted. In case, evidence is led by the parties and the Court is of the opinion that minor children are safe in the custody of respondents No.5 to 7 and no reason to hand over their custody to the petitioner, then petition is to be dismissed. Allegation of the petitioner is that minor children are in illegal and unlawful custody of respondents No.5 to 7, whereas allegation of respondents No.5 to 7 is that after getting payment of Rs.8.00 lacs, petitioner had left the minor children in the custody of respondents No.5 to 7. In AIR 1982 SC 792, Dr. Mrs. Veena Kapoor vs. Varinder Kumar Kapoor, habeas corpus petition under Article 226 of the Constitution of India. Minor child was in the custody of father. Petition was by the mother and dismissed by the High Court. Hon'ble Supreme Court observed dismissal improper, paramount consideration in such cases being welfare of minor and not rights of parties. In paras No.3 to 5, Hon'ble Supreme Court observed as under:- “3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The Crl.Writ Petition No.274 of 2011 6 learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh. 4. Parties have agreed to appear before the learned District Judge on Thursday, April 9, 1981 at 11.00 a.m. The learned Judge will give necessary directions to the parties for the expeditious disposal of the matter. 5. The matter will be listed before us on Monday, April 27, 1981.” In the present case, petition under the Guardian and Wards Act is pending. Application for custody of minor children was also moved. Evidence is to be led by the parties, only then Court is to decide whether petition is to be accepted or not. In 2001(2) RCR (Crl.) 591, Syed Saleemuddin vs. Dr. Rukhsana, writ of habeas corpus for custody of minor children- Hon'ble Supreme Court observed that Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. In a matter of custody of a child, the welfare of the child is of paramount consideration of the Court. In view of concession made by the husband, custody of children was given to the wife till Family Court decided the question of custody. As discussed earlier, petition under the Guardian and Wards Act is pending. Application for interim custody is also pending and I hope that application for interim custody is to be disposed of at the earliest. Respondents No.5 to 7 are to cooperate with the Court for disposal of Crl.Writ Petition No.274 of 2011 7 application for interim custody and main petition under the Guardian and Wards Act. After disposal of application for interim custody of minor children, if the petitioner is of the opinion that respondents No.5 to 7 are playing delaying tactics for the disposal of main petition, then she would be at liberty to approach the Court for direction to the concerned Court for disposal of main petition under the Guardian and Wards Act by giving short adjournments. Learned counsel for respondents No.5 to 7 assured that respondents No.5 to 7 are to fully cooperate the Court for disposal of the petition under the Guardian and Wards Act at the earliest. In view of all discussed above, petition without merit is dismissed. 24.2.2011 ( JORA SINGH ) pk JUDGE