Childcustody, won, habeas corpus
osho amar prem
(Querist) 28 May 2012
This query is : Resolved
sirji .
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 they too are untraceable.
And during my conselling she was given Rs. 1000 to bring child ( all written in consellor order ) to
conselling but she did not return to conselling since then she got
married and untraceable
kindly help..
thanx and regards
amar pune
which option
1. get paper publication by execution court and get executed
2. file habeas corpus and get executed boz trial and transfer of trial is already dismissed since one year back...
3. basic case at karnataka trial over only execution at punjab.
This order of habeas and corpus accepted and granted custody.. is
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.
Raj Kumar Makkad
(Expert) 28 May 2012
You have already been advised against your similar query raised in my personal ID. Refer to that reply and act accordingly.
osho amar prem
(Querist) 28 May 2012
sir i signed on your new website and posted quaery, kindly reply
osho amar prem
(Querist) 28 May 2012
kindlyu reply on this forum pls.. i am supposed to file habeas corpus soon..
osho amar prem
(Querist) 28 May 2012
sirji i am unable to find your advice on your personal id, your advice is very impt to me sir..
ajay sethi
(Expert) 28 May 2012
repeated query already advised
Shonee Kapoor
(Expert) 30 May 2012
Repeated query
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
