27 May 2012
sir, i won child custody ( BOYS 12 AND 9MYEARS ) in 2009 exparta, and filed for execution, but the court denied boz she challanged, but her appeal was at last dismissed, and my application was dissmissed in default boz my lawyer did not attened the court, but the order or hearing sheet did not mentioned that she challanged ( it was judge trick to delay my execution verbaly boz no record was there to say she challanged ) But now i again reopened the case, but when summons was send to her residence, Her brother said " she do not stay at this residence and she gone to her in-laws home ( i am already divorceed 2008 ) she and her parents also took my sons I do not know there were ABOUT. CAN I FILE HABEAS CORPUS.. ON HER AND HER PARENTS.. AND ALSO THAT HER NEW HUSBAND CAN HARM MY SONS.. OR REALY ON EXECUTION COURT. WILL THE HIGH COURT HANDOVER MY SONS TO ME OR I HAVE TO GO FOR PAPAER PUBLICATION AND GET EXECUTED.. WHAT WILL BE BEST... KINLY HELP..
27 May 2012
direction issued in Dr.Mrs.Veena Kapoor vs. Varinder Kumar Kapoor's case reported in AIR 1982 SC 792, will show that the legality or otherwise of the custody of the minor child with one of its parents cannot be sold criterion for deciding the question who, between the parents, should be given the custody of the minor child and that the paramount consideration in such cases should be the welfare of the child. But, when complex issues have arisen and practical difficulties are perceived the question should be left to be conveniently decided by the civil court/family court, wherein parties can lead evidence contentious issues, requiring taking of evidence, is not suitable for resolution in a writ petition (Habeas Corpus Petition).
court is of the considered view that the habeas corpus petition filed under Article 226 of the Constitution of India shall not be the appropriate proceedings to make a decision as to who, between the petitioner and the respondents, shall be entitled to the custody of the child. It needs elaborate enquiry, in which opportunity is to be given to both the parties to lead evidence. The same can be conveniently done only in a civil court / family court.
Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus directing the respondents to produce the petitioner's two years old daughter Nandhini before this Hon'ble court.
For Petitioner : Mr.Sai Krishna
for M/s.Sai Bharath and Ilan
For R1 and R2 : Mr.A.D.Jagadishchandra,
Additional Public Prosecutor
For R4 and R5 : Ms.N.J.Beulah John Selvaraj
O R D E R
(Order of the Court was made by P.R.SHIVAKUMAR, J.)
The petitioner is the mother of a 2 years old female child Nandhini, who is admittedly in the custody of her father, namely the fourth respondent herein. The fourth respondent is employed in Abu Dhabi and after his marriage with the petitioner, both of them set up their marital home in Abu Dhabi. They were gifted with the birth of the above said girl child Nandhini. After a couple of years from the date of birth of the child Nandhini, there arose difference of opinion between the husband and wife, pursuant to which the petitioner alone came back to India and lodged a complaint with the Inspector of Police, S.14 Peerkankaranai Police Station alleging cruelty demanding dowry. In the said complaint, she had also asked for the recovery of the custody of the said child from her husband. The police assigned C.S.R.No.348/2010 and conducted an enquiry and after enquiry, they did not take effective steps to get the custody of the child transferred to the petitioner. The petitioner also took steps through the Indian Embassy in Abu Dhabi, which also failed to yield the result desired by the petitioner, namely retrieval of the custody of the child, since after enquiry for which the fourth respondent appeared with the child, the Indian Embassy in Abu Dhabi did not find fault with the fourth respondent and allowed him to continue to be there in Abu Dhabi along with the child. Thereafter, the petitioner has chosen to approach this court by way of the present Habeas Corpus Petition seeking the issuance of a writ of Habeas Corpus for the production of the child and entrustment of the custody of the child to her.
2. The learned counsel for the petitioner has argued with vehemence that a child aged about 2 years is very much in need of the nursing and fostering of the mother and the 4th respondent, though happened to be the father of the child, is denying such a right of the child to have the nursing of the mother; that the same alone shall be the ground on which this court has to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to direct the production of the child and consequent entrustment of the custody of the child to the petitioner. The learned counsel for the petitioner has contended further that in case of custody of minor children, the paramount consideration is not whether the present custody of the concerned child is lawful or illegal and on the other hand, the welfare of the child should be the paramount consideration in making a decision as to in whose custody the child should be left.
3. In support of his contention, the learned counsel for the petitioner relied on the following judgments: i) Rajesh K.Gupta vs. Ram Gopal Agarwal and Others reported in (2005) 5 Supreme Court Cases 359; and ii)Dr.Mrs.Veena Kapoor vs. Varinder Kumar Kapoor reported in AIR 1982 SC 792.
4. The 5th respondent, namely the father of the 4th respondent has filed a counter affidavit on his behalf and also on behalf of the 4th respondent. The petitioner has also put in a reply affidavit. We have perused the averments made a) in the affidavit of the petitioner, b) in the counter affidavit of the 5th respondent and c) in the reply affidavit of the petitioner and the other materials placed before us for our consideration. The submissions made by Ms.N.J.Beulah John Selvaraj, learned counsel for the 4th and 5th respondents and by Mr.A.D.Jagadishchandra, learned Additional Public Prosecutor representing the respondents 1 and 2 were also heard and taken into consideration.
5. In fact, the respondents 1 to 3 do not have any personal interest and they are not interested in the outcome of the case, which is a dispute between wife and husband regarding the custody of their minor child, as the child is admittedly in a foreign country, namely Abu Dhabi, in the custody of the 4th respondent, the father of the child.
6. The main contention of the petitioner is that while she was living along with her husband, namely the 4th respondent and her child in Abu Dhabi, she was harassed and treated with cruelty demanding dowry. It is also her further contention that on the failure of the petitioner and her parents to meet the demands of the 4th and 5th respondents for more dowry, she was driven away from Abu Dhabi by the 4th respondent and taking advantage of their abode in a foreign country, namely Abu Dhabi, the 4th respondent was able to take the custody of the child by simply driving the petitioner out of their matrimonial home in Abu Dhabi. It is obvious from the affidavit of the petitioner that she herself left Abu Dhabi, leaving the child with the 4th respondent, fearing harm to her in the hands of the 4th respondent and she arrived at Chennai on 30.08.2010. It is also obvious that on 29.09.2010, the 4th respondent came to India with the child. According to the petitioner's contention, there was a move for conciliation during the said visit, in which the 4th and 5th respondents demanded Rs.10.00 Lakhs as additional dowry to get the petitioner and the 4th respondent united and though the father of the petitioner pleaded for some time to muster the huge amount demanded as additional dowry, the 4th respondent escaped from the room breaking open the window and left for Abu Dhabi.
7. Per contra, it is the contention of the 4th and 5th respondents that, due to some difference of opinion, the petitioner voluntarily came back to India deserting the child as well as her husband and immediately on her arrival in India, she preferred a criminal complaint alleging dowry demand and harassment; that the police, on being satisfied with the explanation offered by the 5th respondent, did not take action desired by the petitioner and that even the enquiry conducted in the Indian Embassy at Abu Dhabi, where the 4th respondent appeared with the child, resulted in giving a clean chit to the 4th respondent and he was allowed to continue to reside in Abu Dhabi with the child. It is the further contention of the respondents 4 and 5 that only with the hope of having a reconciliation on the invitation of the 5th respondent, the 4th respondent came to India on 29.09.2010 along with the child; that though the proposed arrival of the 4th respondent with the child was informed to the petitioner and her parents, no one on their side was present in the Airport to receive them; that on the other hand, after the 4th respondent and the child reached the residence of the 5th respondent, some 25 rowdy elements came in a Tata Sumo and a mini bus with dangerous weapons and made attempts to assault the 4th respondent, 5th respondent, wife of the 5th respondent and even the child, as a result of which the 4th respondent had to retire to his room and bolted the door from inside and then escaped from the said room by leaving through the back door of the said room.
8. Of course it is true that the above said allegations made in the counter affidavit by the 5th respondent on his behalf and on behalf of the 4th respondent are denied and disputed by the petitioner in the reply affidavit filed by her. However, the learned counsel for the respondents 4 and 5 would contend that the dispute being a family dispute between wife and husband and also involving the father-in-law of the petitioner regarding the custody of the child, the writ proceedings shall not be the appropriate proceedings in which the question of the custody of the child can be decided and that the forum for seeking the relief shall be the civil court/family court. The learned counsel has pointed out the fact that even in the judgments relied on by the learned counsel for the petitioner in support of his contention that the question of custody of the minor child can be considered in a Habeas Corpus Petition, the ultimate result happened to be that the custody of the concerned child with one of the parents was not disturbed and the parties were directed to work out their remedy before the civil forum.
9. The judgment of the Hon'ble Supreme Court cited by the learned counsel for the petitioner, namely Rajesh K.Gupta vs. Ram Gopal Agarwal and Others reported in (2005) 5 Supreme Court Cases 359 was, no doubt, pronounced in an appeal filed against a writ of habeas corpus petition seeking issuance of a writ of habeas corpus. In that case, the prayer was declined by the High Court and on appeal, the Supreme Court confirmed the order. Paragraph 7 of the said judgment states the law in this regard, which is extracted here under:- " 7. It is well settled that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties."
10. In fact in Dr.Mrs.Veena Kapoor vs. Varinder KumarKapoor reported in AIR 1982 SC 792, the writ petition filed before the High Court was dismissed by the High Court holding that the custody of the child with the respondent therein would not be said to be illegal. When the said order was challenged before the Hon'ble Supreme Court, a 3-Judge bench of the Hon'ble Supreme Court, headed by the then Hon'ble Chief Justice of India, held that the legality or otherwise of the custody would not be the sole factor on which the question of custody of the child could be decided and the welfare of the child should also be taken into consideration. However, the court was of the view that the proceedings in the writ petition was not appropriate to decide the contentious issues. Ultimately, the court directed the parties to appear before the District Judge of Chandigarh, who was directed to conduct an enquiry and make a report after allowing the parties to adduce evidence on the issues involved in that case. A reading of the operative paragraphs of the judgment, namely paragraphs 3 and 4 of the judgment, will show that the said order came to be passed on the consent of the parties to the case before the Apex court. They are reproduced here 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 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 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."
11. A reading of the said observations made in the judgment of the apex court cited above and direction issued in Dr.Mrs.Veena Kapoor vs. Varinder Kumar Kapoor's case reported in AIR 1982 SC 792, will show that the legality or otherwise of the custody of the minor child with one of its parents cannot be sold criterion for deciding the question who, between the parents, should be given the custody of the minor child and that the paramount consideration in such cases should be the welfare of the child. But, when complex issues have arisen and practical difficulties are perceived the question should be left to be conveniently decided by the civil court/family court, wherein parties can lead evidence contentious issues, requiring taking of evidence, is not suitable for resolution in a writ petition (Habeas Corpus Petition).
12. After considering the facts and circumstances of the case, especially the complexity of the issues involved in this case, the fact that the petitioner's allegations is to the effect that the custody of the child was taken by the 4th respondent while the parties were in a foreign country, namely Abu Dhabi, and the further fact that the child and the 4th respondent are now in the said country this court is of the considered view that the habeas corpus petition filed under Article 226 of the Constitution of India shall not be the appropriate proceedings to make a decision as to who, between the petitioner and the 4th respondent, shall be entitled to the custody of the child. It needs elaborate enquiry, in which opportunity is to be given to both the parties to lead evidence. The same can be conveniently done only in a civil court / family court.
13. For the said reason alone, we are of the considered view that the present habeas corpus petition should fail and the same deserves to be dismissed. Accordingly, the habeas corpus petition is dismissed.
14. However, by way of clarification, it is made clear that the remedy open to the petitioner in the other forum shall not be affected by the dismissal of this habeas corpus petition, as we have not decided the rival contentions on merit.
27 May 2012
sir but i already won custody from karnataka, and the execution was transfered punjab.. and she got married as per her brother( mentioned on summons sent to her ) and i am unable to trace her address.. and the child are with her parents and she stauy with her husband.
27 May 2012
she lost custody after contesting and even her transfer order is dismissed by supreme court.. for transfer on case from karnatka to punjab.. when the decree is already decided in 2009 and again her petition to setaside my decree is dismissed by trial court at karnataka, and transfer is dismissed by supreme court.. what the chandigarh high court can do.. court can ask me to go to trial and she already got marrried... pls help
27 May 2012
this petition is allowed and custody granted.
Allahabad High Court Master Manveer Khera vs Manjeet Singh Khera Alias Makhan ... on 9 January, 1997 Equivalent citations: AIR 1997 All 217 Bench: G Tripathi ORDER 1. Smt. Gurpriya Khera, the mother of the minor child Master Manveer Khera has filed this petition praying for a writ in the nature of Habeas Corpus directing respondents No. 1 to 3 to produce the petitioner before the Court and hand over the custody of the child to the mother, Smt. Gurpriya Khera. 2. Admittedly, Smt. Gurpriya Khera was married to late Lt. Mandeep Singh Khera (Indian Navy) on 6-10-90. The child Master Manveer Khera was born out of this union on 17-11-91. On 3-2-96, in a car accident, the husband of Smt. Gurpriya died and she also received injuries. The child Master Manveer Khera was taken up by respondents No. 1 to 3, who are the in-laws of Smt. Gurpriya Khera. It is said that Smt. Gurpriya Khera also received multiple fractures in that car accident and she fell unconscious. She was initially admitted to a Hospital at Rajali. From there, she was shifted to the Military Hospital, Madras and from there, she was discharged on 15-3-96 and brought to Chandigarh by her father and eversince she has been residing there. Without caring for the injured Smt. Gurpriya, the respondents took away the child Master Manveer Khera on 7-2-19% from the hospital and brought him to Shahjahanpur (U.P.) and eversince the child is residing with respondents 1 to 3. Smt. Gurpriya made repeated efforts to have the custody of the child. But she has failed. 3. She is about 26 years' old and educated upto B.A. She belongs to a good family of status. Her father is a retired Army Officer and her mother is a Co-ordinator in Guru Nanak Public School, Chandigarh. Smt. Gurpriya Khera is in a very sound financial position and can took after the betterment of the child and can bring conducive atmosphere, which may be helpful in the future development of his. personality. She is a legal guardian also, whereas, respondents 1 to 3 are not, during herlife time. In the meantime, it is said that the respondents are prosecuting a divorce petition, allegedly filed by the husband of Smt. Gurpriya in the Court of Shahjahanpur even afler his death. This is wrong. Her husband never filed a divorce petition against her. They have been leading peaceful and conducively happy married life. 4. She has heard that respondents No. 1 to 3 are likely to escape to Canada, where the brother of respondent No. 1 resides. The petitioner has sent a written request on 5-6-96 to the Canadian High Commission and the American Embassy so that they may not be allowed to take away her child. Under these circumstances, she has alleged that she can watch the interest of the minor in a better manner. 5. In the counter affidavit, the respondent No. 1 has alleged that even during the life time of late Lt. Mandeep Singh Khera, the husband of Smt. Gurpriya, there was serious differences between the husband and wife and the respondents were looking after the child. The husband was compelled to file a divorce suit in the Court at Shahjahanpur against Smt. Gurpriya Khera. Allegedly she admitted the claim (which has been denied by her). It has been alleged that the grandfather of the child is a retired officer. He was pos ted asaSenior Manager, BHEL and got a large package of retirement benefits. He has agricultural land in Punjab as well as Shahjahanpur. He has a shop at Poona. Smt. Gurpriya's father is a retired territorial Army Officer. Her mother is a school teacher. Smt. Gurpriya is not in a perfect mental state having no love and affection for the child. This way the best interest of the child can be served only while remaining with respondents. 6. It is not disputed that the child is residing with respondents. After the death of her husband, Smt. Gurpriya has received a large package of retirement benefits (death dues) and is in a sound financial position. This does not mean that the respondents' financial position is not sound. 7. Under these circumstances, the Court has to weigh the contention of the parties in order to ensure the best possible care and welfare of the child. 8. There is a well-known scriptural jewel (Hindi matter) It means that bad sons are bom infrequently although, but bad mother is yet to be born. 9. In this case, it is not disputed that Smt.--Gurpriya has no adversarial interest with the child. It is also not disputed that she is a graduate and young lady of 26 years and has not remarried. So from all considerations, she is the best protector of the minors' interest. 10. There is another jewel of invaluable nature. (Hindi matter) The mother, father and friends are natural well-wishers of a person. Others think of the welfare of the person only when they have some ulterior benefits to gain. This way, mother being the natural guardian of me child, has the best claimupon him. Even according to Hindu Law, in the list of Guardians, the mother comes only after the father. 11. Myattention has been invited toaDivision Bench Ruling of this Court in the case of Vinayak Goyal v. Prem Prakash, 1981 All LJ 752. In para 11, it has been held as follows :-- "In the case of a minor, his detention would be treated as illegal and unlawful if he is detained by any person against the wishes of the guardian (in this case Gurpriya) who is entitled in law to have his custody..... In the instant case holding back of the child by his grandfather and grandmother amounted to illegal and unlawful delention and as such, the petitioner was entitled to a writ of mandamus" 12. In paragraph 14, it was also observed as follows :-- ".....The law is well settled that the writ of habeas corpus would be maintainable for the custody of a child despite the alternative remedy of filing an application under the Guardians and Wards Act." Therefore, the contention of Sri Asthana is not sound that since the petitions under the Guardians and Wards as well as Hindu Marriage Act (Divorce petition) are pending in the Shahjahanpur court, this Court should permpt a decision on facts by those courts. 13. In para 18, it was observed as follows:-- ".....In the instant case, there is nothing to doubt that well being, education and happiness of the petitioner-minor lies in selecting his mother over grandfather and grand-mother. The child is 8 years of age. Mother's protection for such achild is indispensable. There cannot be any other protection which will be equal in measure and substance to that of the mother in such circumstances." That was a case similar to one before me. As the learned counsel Sri Asthana could not show me that the law has changed after this judgment, either by this High Court or by the Hon'ble Supreme Court, therefore, this has to be treated as a final position of law in the present case. 14. The primary consideration, is, always, admittedly, in such cases, to see as to whether best interest of the child can be protected, by the petitioner or the respondents. The respondents are aged over 60 years and onward. They do not possess that much agility as Smt. Gurpriya can She is a young lady. She can toil with the child for his betterment. She can devote more time to the child. She can educate him and also look after him in a better position, as she is, admittedly, a very educated lady. Her mother is also a teacher whereas, the respondents are old people. They cannot devote that much of time towards the child. May, after few years they shall themselves need protection and care from others. 15. It is not disputed that best possible educational facilities are available in Chandigarh, whereas such facilities cannot be even dreamt of at Shahjahanpur, either in the city or in the rural areas where the respondents have farm and other properties. Hence from this point of view, the study atmosphere of the child at Chandigarh will be more conducive towards the betterment of the child than that of his residence at Shahjahanpur under the care of the respondents. This does not mean that I want to say that respondents have no love and affection of the child. They have all the love and affection for him. But in degree as well as in quatity, it cannot be equated with that of Smt. Gurpriya. Therefore, from this norm also, Smt. Gurpriya stands in a better position to have the custody of the child. 16. After receipt of the post-retirement/death package, Smt. Gurpriya's financial position is very sound. Even her parents are in a better position to help her as and when she needs their protection. So, it cannot be said that on financial consideration, she stands in a weaker position than that of the respondents. Rather, I find that Smt. Gurpriya is in a much better position than respondents to look after the welfare of the child. The pendency of the proceedings in Shahjahanpur Court, cannot mean that Smt. Gurpriya is in any way less competent to look after the child's welfare. 17. Every person must have some solace in life. A young lady gets much solace in the company of her husband and child similarly, the child gets solace as well as protection and care under the custody of his mother. By God's grace or otherwise, Smt. Gurpriya has turned into a widow due to untimel death of her husband in an accident. So she has no'solace or love from her husband now. Then the only solace available to her is her child. If he too js taken away from her, she will be compelled to live a life of desertion and life long agony and the attainment of motherhood is the best contribution a lady makes towards the society as well as the nation and in further educating him looking afterhim and making him a better citizen, she plays a determined, positive role. These are not disputed things. Therefore, even in the interest of justice to the society as well as Smt. Gurpriya herself, apart from the interest of the child, I find that there cannot be any better heaven for the child on earth than the lap of his mother under whose benigh guardianship, he will be able to become a better citizen of the nation. 18. I do not find that there is anything on the record to prove that Smt. Gurpriya is, in any way, disqualified or less qualified to look after the child's welfare. 19. Taking all the facts into consideration, I find that Smt. Gurpriya is entitled to the custody of the child. 20. Master Manveer Khera, the child, has been brought by the respondents and is present in court. Although, the child does not want to go with his mother as he has been living with the respondents only for nearly a year. During this period, he has not been able to meet his mother. He is a minor of about 5 years age. He has no knowledge about his welfare himself. Simply because he does not want to go with his mother Smt. Gurpriya Khera, the Court shall not deprive Smt. Gurpriya Khera of her legal rights as well as pious duties towards her child. Hence dis-inclination of the child himself to go with his mother Smt. Gurpriya Khera, will not be a factor to be counted while determining this petition. 21. Thus the petition is allowed with cosls. It is ordered that the respondents shall hand over the child to Smt. Gurpriya, his mother, immediately and she shall be entitled to, take away the child at her residential place at Chandigarh. If need be, S.S.P. Allahabad is directed to provide adequate protection to the mother Smt. Gurpriya for carriage of the child by her upto Chandigarh. 22. Sri Ramendra Asthana, learned counsel prays for permission to fife an appeal before the Hon'ble Supreme Court. 23. His oral prayer is allowed. 24. Petition allowed.
27 May 2012
in most case custody is not won and court ask to go to trial court, but in my case trial is allready over at karnataka, and i am asking punjab court to executed it, and transfer is dismissed by supreme court.. pls
27 May 2012
sir i already won custody from karnataka, and the execution was transfered to punjab.. executeion was dissmiss in default once but now i again to took up. her petition to setaside my order is also dismissed her transfer application is also dismissed from karnatka to Punjab by supreme court. and she got married as per her brother( mentioned on summons sent to her ) and i am unable to trace her address.. and the child are with her parents and she stay with her husband parents too are untraceable. And during my conselling she was given 1000 to bring child to conselling but she did not return to conselling since then she got married and untraceable....