Punjab-Haryana High Court
Neelu Talotra vs State Of Punjab And Others on 10 September, 2024
Author: Kirti Singh
Bench: Kirti Singh
Neutral Citation No:=2024:PHHC:118646
CRWP-7646-2024 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRWP-7646-2024 (O&M)
Reserved on : 06.09.2024
Pronounced on: 10.09.2024
Neelu Talotra ..... Petitioner
VERSUS
State of Punjab and others ..... Respondents
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Vipin Mahajan, Advocate, for the petitioner.
Mr. R.S. Thind, DAG, Punjab.
Mr. Nikhil Ghai, Advocate, for respondent No.4.
*****
KIRTI SINGH, J.
1. The jurisdiction of this Court has been invoked under Article
226 of the Constitution of India read with Section 528 of BNSS, 2023 by
the petitioner-mother for issuance of a writ in the nature of Habeas
Corpus for the release of detenue-Dhairya Saini (her son) aged 08 months
from the illegal custody of respondent No.4-Rohit Saini (father).
Facts
2. Succinct factual narrative relevant for the disposal of the instant
petition is that the petitioner was married to respondent No.4-Rohit Saini on
27.09.2022. The marriage between the petitioner and respondent No.4 was
an elopement. At the time of marriage, Rohit Saini was divorced from his
first wife. The petitioner along with her husband Rohit Saini had filed a
petition bearing No.CRWP-9452-2022 seeking protection of life and liberty
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which was disposed of vide order dated 30.09.2022 with a direction to the
Senior Superintendent of Police, Gurdaspur to look into the representation
given by the petitioners.
2.1 From the wedlock one male child, namely, Dhairya Saini was
born on 14.12.2023. Due to marital discord, the petitioner who was living
with respondent No.4, was severely beaten and thrown out of the
matrimonial house. She was not allowed to take her child along with her
and respondent No.4 along with his parents forcibly retained the custody of
the child. A copy of the MLR of the petitioner is attached as Annexure P2.
2.2 The petitioner along with her parents had approached the local
police along with a copy of the MLR and had requested that the custody of
the child be taken from respondent No.4 and handed over to the petitioner
who was being nursed by the mother. However, no police assistance was
provided to the petitioner.
Submissions made by learned counsel for the petitioner
3. It has been pleaded by learned counsel for the petitioner that the
petitioner who is the mother of the child was mercilessly beaten by
respondent No.4-Rohit Saini and thrown out of her matrimonial house
without a consideration that the child was being nursed by his mother. The
child is of a tender age of 08 months and needs love, affection, care and feed
of his mother who is her natural and legal guardian. The petitioner is
presently living in her parents’ house and is capable to take care of the
welfare of the child. It has further been argued that as per Section 6 of the
Hindu Minority & Guardianship Act, 1956, the custody of a minor child,
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who has not completed the age of 05 years, shall ordinarily be with the
mother. He has placed reliance upon an order dated 10.04.2017 passed by
the Hon’ble Supreme Court in SLP-2723-2017 titled as Manpreet Singh
and others Vs. State of Punjab and others, an order dated 27.08.2024
passed by a Coordinate Bench of this Court in CRWP-6377-2024 titled as
Anju Sharma Vs. State of Haryana and others, and judgment dated
24.07.1986 passed by the Himachal Pradesh High Court in Criminal Writ
Petition No.16 of 1986 titled as Kamla Devi Vs. State of Himachal
Pradesh and others, and judgment dated 07.03.2017 passed by a
Coordinate Bench of this Court in CRWP-68-2017 titled as Kirandeep
Kaur Vs. State of Punjab and others in support of his contentions.
Submissions made by learned counsel for respondent No.4
4. On the other hand, Mr. Nikhil Ghai, Advocate appearing on
behalf of respondent No.4 has argued that the petition filed by the petitioner
is liable to be dismissed as it is not maintainable. Since, respondent No.4 is
the father of the detenue and therefore, the detenue cannot be said to be in
illegal custody of respondent No.4. Further, the relief sought by the
petitioner cannot be granted in a Habeas Corpus petition as the alternative
and effective remedy is already available with the petitioner which has not
been availed. It has also been argued that the petitioner has not approached
the Court with clean hands and she herself abandoned the child with
respondent No.4 and left the matrimonial house. He further submits that the
entire occurrence was recorded in the CCTV camera which clearly shows
the petitioner leaving the house premises after abandoning the child with
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respondent No.4. He places reliance upon the judgment dated 06.05.2019
passed by the Hon’ble Supreme Court in Criminal Appeal No.838 of 2019
titled as Tejaswini Gaud and others Vs. Shekhar Jadish Prasad Tewari
and others, judgment dated 06.04.1981 tiled as Veena Kapoor Vs.
Varinder Kumar Kapoor in SLP-1073-1981, judgment dated 23.02.2011
passed by a Coordinate Bench of this Court in CRWP-2403-2010 titled as
Sakina Vs. State of Punjab and others and judgment dated 16.04.2024
passed by the High Court of Allahabad in Habeas Corpus-WP-82-2024
titled as Mithilesh Maurya and another Vs. State of U.P. and others. He
further submits that the petitioner can avail appropriate remedy by filing a
petition under the Hindu Minority & Guardianship Act, 1956, for claiming
the custody of the child.
5. Learned State counsel has not disputed the fact that the custody
of the child is currently with respondent No.4.
6. This Court vide order dated 02.09.2024 had referred the parties
to the Mediation & Conciliation Centre of this Court to enable them to work
out an amicable resolution of their dispute. However, report dated
03.09.2024 of the Mediator has been received, in which it is stated that after
a lengthy joint and single sessions, the parties have not been able to work out
any amicable settlement regarding custody of their son and the matter has
been sent back to this Court.
7. Heard the rival submissions made by learned counsel for the
parties and have perused the record.
Analysis
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8. For the proper consideration of the aforesaid contentions, it is
appropriate to refer to the relevant decisions. The Hon’ble Supreme Court of
India in Yashita Sahu Vs. State of Rajashtan and others 2020 (3) SCC 67
has recognized that a writ of Habeas Corpus can be maintained for the
custody of a child when the child is in custody of one parent, especially, if it
is in the child’s best interest. The Court can invoke the extraordinary
jurisdiction in use to ensure the welfare of the child which is of paramount
consideration in custody matter and to determine if the custody arrangement
is in the child’s best interest. The relevant extract of the said judgment is
reproduced below:-
“9. It is too late in the day to urge that a writ of Habeas
Corpus is not maintainable if the child is in the custody of
another parent. The law in this regard has developed a lot over
a period of time but now it is a settled position that the Court
can invoke its extraordinary writ jurisdiction for the best
interest of the child. This has been done in Elizabeth Dinshaw
Vs. Arvand M. Dinshaw and others (1987) 1 SCC 42, Nithya
Anand Raghavan Vs. State (NCT of Delhi) and another,
(2017) 8SCC 454 and Lahari Sakhamuri Vs. Sobhan Kodali,
(2019) 7 SCC 311 among others. In all these cases, the writ
petitions were entertained. Therefore, we reject the contention
of the appellant-wife that the writ petition before the High
Court of Rajasthan was not maintainable.
10. We need not refer to all decisions in this regard but
it would be apposite to refer to the following observations from
the judgment in Nithya Anand Raghavan (supra):-
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46. The High Court while dealing with the
petition for issuance of a writ of Habeas Corpus concerning a
minor child, in a given case, may direct return of the child or
decline to change the custody of the child keeping in mind all
the attending facts and circumstances including the settled
legal position referred to above. Once again, we may hasten to
add that the decision of the Court, in each case, must depend on
the totality of the facts and circumstances of the case brought
before it whilst considering the welfare of the child which is of
paramount consideration. The order of the foreign Court must
yield to the welfare of the child. Further, the remedy of writ of
Habeas Corpus cannot be used for mere enforcement of the
directions given by the foreign Court against a person within its
jurisdiction and convert that jurisdiction into that of an
executing Court. Indubitably, the writ petitioner can take
recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign Court or to
resort to any other proceedings as may be permissible in law
before the Indian Court for the custody of the child, if so
advised.
47. In a Habeas Corpus petition as aforesaid,
the High Court must examine at the threshold whether the
minor is in lawful or unlawful custody of another person
(private respondent named in the writ petition).
11. Further in the case of Kanika Goel Vs. State of
Delhi (2018) 9 SCC 578, it was held as follows:
34. As expounded in the recent decisions of this
Court, the issue ought not to be decided on the basis of rights of
the parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best interest6 of 16
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of the minor child is to return to the native country or
otherwise. The fact that the minor child will have better
prospects upon return to his/her native country, may be
relevant aspect in a substantive proceedings for grant of
custody of the minor child but not decisive to examine the
threshold issues in a Habeas Corpus petition. For the purpose
of Habeas Corpus petition, the Court ought to focus on the
obtaining circumstances of the minor child having been
removed from the native country and taken to a place to
encounter alien environment, language, custom etc. interfering
with his/her overall growth and grooming and whether
continuance there will be harmful.”
9. Recently, a Coordinate Bench of this Court vide order dated
27.08.2024 passed in CRWP-6377-2024 titled as Anju Sharma Vs. State
of Haryana and others has observed as under:-
“6. The law is well settled that a remedy of the writ
petition in the nature of habeas corpus is available when the
minor is illegally and improperly detained. In case Tejaswini
Gaud and others (supra), the Hon’ble Supreme Court, while
deciding whether writ petition is maintainable or not, held that
ordinarily remedy lies only under the Hindu Minority and
Guardianship Act or the Guardians and Wards Act, as the case
may be. It is only in exceptional cases, the rights of parties to
the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus. The
relevant extract from said judgment reads as under:-
“13. Writ of habeas corpus is a prerogative process for
securing the liberty of the subject by affording an effective
means of immediate release from an illegal or improper
detention. The writ also extends its influence to restore the7 of 16
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custody of a minor to his guardian when wrongfully deprived of
it. The detention of a minor by a person who is not entitled to
his legal custody is treated as equivalent to illegal detention for
the purpose of granting writ, directing custody of the minor
child. For restoration of the custody of a minor from a person
who according to the personal law, is not his legal or natural
guardian, in appropriate cases, the writ court has jurisdiction.
14. In Gohar Begum where the mother had, under the
personal law, the legal right to the custody of her illegitimate
minor child, the writ was issued. In Gohar Begum, the Supreme
Court dealt with a petition for habeas corpus for recovery of an
illegitimate female child. Gohar alleged that Kaniz Begum,
Gohar’s mother’s sister was allegedly detaining Gohar’s infant
female child illegally. The Supreme Court took note of the
position under the Mohammedan Law that the mother of an
illegitimate female child is entitled to its custody and refusal to
restore the custody of the child to the mother would result in
illegal custody of the child. The Supreme Court held that Kaniz
having no legal right to the custody of the child and her refusal
to make over the child to the mother resulted in an illegal
detention of the child within the meaning of Section 491 Cr.P.C.
of the old Code. The Supreme Court held that the fact that
Gohar had a right under the Guardians and Wards Act is no
justification for denying her right under Section 491 Cr.P.C.
The Supreme Court observed that Gohar Begum, being the
natural guardian, is entitled to maintain the writ petition and
held as under:-
“7. On these undisputed facts the position in law is
perfectly clear. Under the Mohammedan law which
applies to this case, the appellant is entitled to the
custody of Anjum who is her illegitimate daughter, no8 of 16
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matter who the father of Anjum is. The respondent has no
legal right whatsoever to the custody of the child. Her
refusal to make over the child to the appellant therefore
resulted in an illegal detention of the child within the
meaning of Section 491. This position is clearly
recognised in the English cases concerning writs of
habeas corpus for the production of infants.
In Queen v. Clarke (1857) 7 EL & BL 186: 119,
ER 1217 Lord Campbell, C.J., said at p. 193:
“But with respect to a child under guardianship
for nurture, the child is supposed to be unlawfully
imprisoned when unlawfully detained from the custody of
the guardian; and when delivered to him, the child is
supposed to be set at liberty.” The courts in our country
have consistently taken the same view. For this purpose
the Indian cases hereinafter cited may be referred to. The
terms of Section 491 would clearly be applicable to the
case and the appellant entitled to the order she asked.”
8. We therefore think that the learned Judges of the
High Court were clearly wrong in their view that the
child Anjum was not being illegally or improperly
detained. The learned Judges have not given any reason
in support of their view and we are clear in our mind that
view is unsustainable in law.
……
10. We further see no reason why the appellant
should have been asked to proceed under the Guardian
and Wards Act for recovering the custody of the child.
She had of course the right to do so. But she had also a
clear right to an order for the custody of the child under
Section 491 of the Code. The fact that she had a right
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under the Guardians and Wards Act is no justification for
denying her the right under Section 491. That is well
established as will appear from the cases hereinafter
cited.”
15. In Veena Kapoor, the issue of custody of child
as between the natural guardians who were not living
together. Veena, the mother of the child, filed the habeas
corpus petition seeking custody of the child from her
husband alleging that her husband was having illegal
custody of the one and a half year old child. The Supreme
Court directed the District Judge concerned to take down
evidence, adduced by the parties, and send a report to
the Supreme Court on the question whether considering
the interest of the minor child, its mother should be given
its custody.
16. In Rajiv Bhatia, the habeas corpus petition
was filed by Priyanka, mother of the girl, alleging that
her daughter was in illegal custody of Rajiv, her
husband’s elder brother. Rajiv relied on an adoption
deed. Priyanka took the plea that it was a fraudulent
document. The Supreme Court held that the High Court
was not entitled to examine the legality of the deed of
adoption and then come to the conclusion one way or the
other with regard to the custody of the child.
17. In Manju Malini where the mother filed a
habeas corpus petition seeking custody of her minor
child Tanishka from her sister and brother-in-law who
refused to hand over the child to the mother, the
Karnataka High Court held as under:-
“24. The moment respondents 1 and 2 refused to
handover the custody of minor Tanishka to the petitioner10 of 16
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the natural and legal guardian, the continuation of her
custody with them becomes illegal detention. Such
intentional act on the part of respondent Nos.1 and 2
even amounts to the offence of kidnapping punishable
under S.361 of IPC. Therefore there is no merit in the
contention that the writ petition is not maintainable and
respondent Nos.1 and 2 are in legal custody of baby
Tanishka.”
18. Habeas corpus proceedings is not to justify or
examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of
the child is addressed to the discretion of the court.
Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy
provided by the law is either not available or is
ineffective; otherwise a writ will not be issued. In child
custody matters, the power of the High Court in granting
the writ is qualified only in cases where the detention of a
minor by a person who is not entitled to his legal
custody. In view of the pronouncement on the issue in
question by the Supreme Court and the High Courts, in
our view, in child custody matters, the writ of habeas
corpus is maintainable where it is proved that the
detention of a minor child by a parent or others was
illegal and without any authority of law.
19. In child custody matters, the ordinary remedy
lies only under the Hindu Minority and Guardianship Act
or the Guardians and Wards Act as the case may be. In
cases arising out of the proceedings under the Guardians
and Wards Act, the jurisdiction of the court is determined
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by whether the minor ordinarily resides within the area
on which the court exercises such jurisdiction. There are
significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by
a writ court which is of summary in nature. What is
important is the welfare of the child. In the writ court,
rights are determined only on the basis of affidavits.
Where the court is of the view that a detailed enquiry is
required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to
approach the civil court. It is only in exceptional cases,
the rights of the parties to the custody of the minor will
be determined in exercise of extraordinary jurisdiction
on a petition for habeas corpus.”
6.1 In case Rajeswari Chandrasekar Ganesh
Versus State of Tamil Nadu and others, Writ Petition
(Criminal) No.402 of 2021, decided on 14.07.2022, it is
held that writ petition of habeas corpus is maintainable
at the instance of one parent against the other and in
child custody matters, the only relevant consideration is
the welfare of the child.
6.2 Section 6 (a) of Hindu Minority and
Guardianship Act, 1956 reads as under:-
“6. Natural guardians of a Hindu minor.–
The natural guardian of a Hindu minor, in respect of the
minor’s person as well as in respect of the minor’s
property (excluding his or her undivided interest in joint
family property), are–
(a) in the case of a boy or an unmarried girl–the
father, and after him, the mother: provided that the12 of 16
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custody of a minor who has not completed the age of five
years shall ordinarily be with the mother;
(b) ……
(c) …… ”
The above said section provides that the custody of minor
who has not completed the age of 5 years, shall ordinarily be
with the mother. Thus, there is a presumption that welfare of a
child of such tender age should be in the custody of mother but
that presumption is rebuttable, which means the father has to
disclose cogent reasons that the welfare of the child is
jeopardized if the custody is retained by the mother.
6.3 In case Roxann Sharma (supra), it is held that if
child is below 5 years, the father’s suitability to custody is not
relevant since the mother is per se best suited to care for the
infant during his tender age. It is for the father to plead and
prove the mother’s unsuitability. Section 6(a) of the Hindu
Minority and Guardianship Act preserves the right of the father
to be the guardian of the property of the minor child but not the
guardian of his person whilst the child is less than five years
old.”
10. Coming to the case in hand, it is not in dispute that the parties
i.e petitioner and respondent No.4-Rohit Saini were legally married on
27.09.2022 and from this wedlock one male child, namely, Dhairya Saini
was born on 14.12.2023 who is currently residing with respondent
No.4-father. A matrimonial dispute arose between both the parties in which
the petitioner was allegedly beaten up and thrown out from the matrimonial
house and the child was retained by respondent No.4. Both parties are
currently residing in Gurdaspur.
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11. When the parents are in conflict, the child’s well-being should
remain the paramount concern. The Court must ensure that the child is not
treated as an object to be passed back and forth but rather a person whose
stability and security must carefully be protected.
A child, especially at a tender age, has a fundamental right to
the love, care and protection of both parents. This is not only essential for
the child’s emotional and psychological development but is also recognized
as a basic human right.
12. Given this dynamic, the Court must exercise caution in
assessing the claims made by each parent free from any kind of bias and
motive and must focus on the child’s best interest. The goal of the Court
should be to cut through the conflict and to assess a suitable environment
where the child’s overall well-being is safeguarded.
The primary and paramount consideration is always with the
child’s best interest which encompasses his/her physical and psychological
well-being.
13. In custody battles the children often become the unintended
victim of their parents’ conflict. When the dispute becomes highly
acrimonious, each parent may portray the other in negative right, sometimes
marginally or by misrepresenting the facts to gain advantage. This adverse
approach can create significant emotional and psychological concern of the
child who is caught in the middle of the conflict. The main aim is to
minimize disruption to the child’s life and to ensure continuity with both
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parents unless there are compelling reasons such as evidence of abuse or
severe neglect to limit or deny the contact of one parent.
Conclusion
14. In view of the afore-mentioned discussion and keeping in mind
the fact that the child is of a tender age of 08 months, this Court is of the
considered opinion that till a decision is taken by the competent Court, the
custody of the child shall remain with the petitioner-mother. Respondents
No.2 and 3 are directed to ensure that the custody of the minor child is
handed over by respondent No.4-Rohit Saini to the petitioner-mother-Neelu
Talotra immediately in the presence of Chief Judicial Magistrate-cum-
Secretary District Legal Services Authority, Gurdaspur, Punjab or any other
officer deputed by the District & Sessions Judge, Gurdaspur for this purpose.
Respondent No.4 shall produce the minor child at 11:00 a.m. on 12.09.2024
in the Alternative Dispute Redressal (ADR) Centre, Gurdaspur for
compliance of this order.
15. Further, keeping in view the child’s welfare and best interest
which also includes ensuring that the child is not deprived of the affection
and company of the father, this Court hereby directs that respondent No.4
will be provided access to the minor son by the petitioner at her parental
home between 4:00 p.m. to 6:00 p.m. on 1st & 3rd Saturday of every month.
Respondent No.4 will not, however, take the child out and will not by an act
or omission on his part create any situation which has the direct or indirect
effect of disturbing the sense of security and emotional balance of the child
and the domestic harmony.
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This petition is allowed, accordingly.
(KIRTI SINGH)
JUDGE
10.09.2024
Ramandeep Singh
Whether speaking / reasoned Yes
Whether Reportable Yes
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