Amita Gautam vs Ramesh Gautam and Others

S.S. Dewan, J.—This is a petition by mother for issuance of a writ of habeas corpus for the custody of her minor son Mandeep Gautam alias Michael aged about five years, who is for the time being in custody of respondents Nos. 1 to 3.

The facts relevant as emerging from the pleadings of the parties may be taken note of :--

"The petitioner Mrs. Amita Gautam was married to Sandeep Gautam (respondent No. 3) in India on 12th December, 1982. The child whose custody is sought, was born to the couple on 10th October, 1984, in Calgary, Alberta, Canada. It is alleged in the petition that in the month of March, 1985, the petitioner was duped by the husband Sandeep Gautam by telling her that his ailing mother wanted to see the petitioner''s son and then they both alongwith the child came to India and after about two months of miserable period of stay at the respondents'' house at Nawan Shehar, in/around May, 1985, she had to leave for Canada without her child and that her husband had played fraud on her as be failed to fulfil his undertaking given at the time when the child was retained by the grand-parents that the former would be brought to Canada alongwith the father. Unfortunate differences having arisen between the two spouses, the petitioner had filed an application for interim custody of the child and the same was granted to her by the Queen''s Bench of Alberta on 9th August, 1985. Thereafter, the husband moved a divorce petition against the petitioner in the Canadian Court in the year 1985 but later on he withdrew the same. The petitioner then moved an application for divorce in the Court of Queen''s Bench of Alberta and the same was decreed in her favour on 1-3-1989. It is alleged that on the advice given by the Solicitors in Canada that the remedy for the release of her son lay in Indian Courts, she tried to come to India but the disturbed conditions in Punjab hampered her efforts in this direction. The Indian Embassy in Canada was not inclined to give permits for entry into Punjab and that when the restrictions were relaxed, the petitioner alongwith her parents came to India. On 29th July, 1989, she alongwith the police approached the respondents to meet her minor son but she was treated roughly and she was also refused access to her minor son. The petitioner finding herself totally helpless to receive back the custody of her child, filed this writ petition seeking direction to the respondents to handover the custody of her minor son under the order of a competent foreign Court."

On the other hand, the respondents have come out with the various allegations in their returns -against the petitioner which I need not repeat here being irrelevant to the issues involved. According to the husband, the child is being well looked after by his mother (respondent No. 2). The husband has further pleaded that the handing over of the child to the petitioner would not be in the interest of the child. He has, therefore, pleaded for the rejection of the petition.

Having heard learned counsel for the parties, I am of the opinion that this petition must be allowed. At the outset, I would like to mention that in the nature of the present case, it is not at all necessary for me to go into the details of the allegations and counter allegations of the parties''. I am required to decide this petition on the sole consideration in whose custody the welfare of the minor lies. u/s 6(a) of the Hindu Minority and Guardianship Act, 1956, it is provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The clause gives legislative sanction to the principle which is now well established that although the father is the natural guardian of the minor child and entitled as such to his custody, the prime and paramount consideration is the welfare of the minor and the custody of a child of tender years should, therefore, remain with the mother unless there are grave and weighty considerations which require that the mother should not be permitted to have the minor with her. For applying the aforesaid rule, I will have to look to the facts emerging from the petition and the returns filed before me. The fact that the petitioner belongs to a respectable family is not in dispute and also that her father is drawing a handsome salary. The petitioner is now staying with her parents. She herself is highly educated lady and employed with a Solicitors firm getting about 1600 Dollars per month. Therefore, it cannot be said that if the custody of the male child is given to her, she will not be able to look after him and the welfare of the child would in any manner; be in jeopardy. As regards the contention advanced on behalf of the husband that even he can look after the child, cannot be a ground for depriving the mother of the custody of the child in view of the provisions of Section 6(a) of the Hindu Minority and Guardianship Act. Even the basis stated by the husband that he would be in a position to look after the child is not convincing. The husband is hardly a Matriculate and he is stated to be running two taxies and earning about 700 Dollars per month. He claims to be getting about 1600 Dollars from a shopkeeper but be has not produced any authentic documentary evidence in support of this assertion. He has recently remarried. His mother is employed in the Education Department. The contention advanced on his behalf is that the child would be looked after by his mother and his second wife. His mother being an employee and his second wife being a step mother, would-act be able to properly look after the child. I am, therefore, not convinced that the husband is in a position to look after the child in preference to that of the mother.

The present writ petition is filed under Articles 226 and 227 of the Constitution of India. It is an admitted fact that the petitioner has come here all the way from Canada for a short term visa. This extraordinary remedy is always contemplated to give speedy, effective and efficacious remedy to the aggrieved party. If there is no such urgency, the ordinary Courts of law must take effect and this extraordinary jurisdiction cannot be resorted to. A Division Bench of Madhya Pradesh High Court in Bhagwati Bai Vs. Yadav Krishna Awadhiya and Others, , has held as under :--

"The writ of habeas corpus ad subjiciendum i.e. you have the body to submit or answer, is commonly known as the writ of habeas corpus. It 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 the 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, for the purpose of granting the writ, as equivalent to imprisonment of the minor. It is, therefore, not necessary to show that any force or restraint is being used against the minor by the respondent. In Gohar Begum v. Sougi Begum AIR I960 SC 93 where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued."

The contention of the learned counsel for the respondents that in view of the facts and circumstances or the present case, an inquiry was necessary into the allegations made by the respondents to judge whether the welfare of the child lies in handing over the custody of the child to his father or mother, in my opinion, is fallacious. To buttress this argument the learned counsel cited Swa Lay Teong v. Yeo Boon Lay AIR 1926 Rang 76; Mt. Haidari Begum v. Jawad Ali AIR 1935 AWC ; Gopal Ji and Ors. v. Shree Chand and Anr. AIR 1955 AWC 28 ; Smt. Veena Agrawal Vs. Shri Prahlad Das Agarwal, ; Mrs. Premila Devi v. R. Jayachandran, (1981) 1 MLJ 497 ; Smt. Satya Vs. Shri Teja Singh, and Roshanlal Kuthalia and Others Vs. R.B. Mohan Singh Oberoi, . It is needless to go into these authorities because the same are distinguishable and the ratio thereof is not at all applicable to the facts and circumstances of this case. In the present proceedings, I do not find anything for which an elaborate enquiry is necessary by recording evidence etc. The facts on record speak for themselves. The underlying principle is that guardian''s claim to the custody of the child, is not right in the nature Of property but indeed it is a right in the nature of trust for the benefit of the minor. For the reasons stated above, I feel satisfied that it is not in the interest of the minor that the husband should be allowed to take his custody and I am not in a slightest doubt that the care of this child will be taken much better if he is kept with his mother-petitioner.

The mother of the child is indisputably armed with order of foreign Court (Annexure P. 9) granting her custody the child, which is being opposed by the husband. Two questions have cropped up. The first is Whether this Court should respect the order of the foreign Court granting custody of the child to the mother and the second question is whether this Court should grant the prayer in this petition and give the custody of the child to the mother who undoubtedly is all set to take the child back to Canada. The matter is not res Integra. In Mrs. Kuldeep Sidhu Vs. Chanan Singh and Others, , it has been observed as under:--

"It is in the fitness of things too that the children should go hack to the country whose citizens they are and the dispute regarding their custody be finally settled by the Courts there. In the meanwhile the petitioner has in her favour an order of the competent Court in Canada granting her custody of the children. This order must be honoured and respected, as observed by M.M. Punchhi, J. in Marilynn Anita Dhillon Gilmore v. Margaret Nijjar ILR (1984) 1 P & H 1 as under :--

"Courts all over the world frown on the attitude of parents running away from their legal obligations. The prevailing view in private International Law is that the Courts all over the world should, other thing being equal, set its pace against the conduct of unilateral movement of children and they should be careful not to do anything to encourage this tendency. The predominant view also is that a Judge should pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child. ..."

A similar view was expressed by the Supreme Court in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, , where it was observed, "the modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping."

In dealing with somewhat similar situation as has arisen in the present case namely of an order having been passed by the competent Court in the United States granting custody of the minor to the mother and the father in disobedience of it bringing the child to India, the Supreme Court in Mrs. Elzabeth Dinshaw v. Arvand M. Dinshaw, : AIR 1987 SC 3 expressly approved the judgment of the Court of Appeal in England in Re H. (Infants) (1966) 1 All ER 886, Willmer, LJ there observed :--

"The sudden and unauthorised removal of children from one country to another is far too frequent now-a-day''s, and as it seems to me, it is the duty of all Courts in all countries to do all they can to ensure that the wrongdoer does not again an advantage by this wrongdoing.

XX XX XX XX The Courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally and a Judge should as I see it, pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."

That being the settled position in law, the order passed by the Court of Queen''s Bench of Alberts on August 1, 1985, granting interim custody of the child to Mrs. Amita Gautam deserves due regard and nothing has been brought out in this case by the husband to justify it not being complied with. I am also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper up-bringing.

I allow the writ petition and direct that the minor boy Mandeep Gautam alias Michael be restored forthwith to the custody of the petitioner i e. mother with liberty to the petitioner to take him to Canada. The child will be ward of the concerned Court in Alberta and it will be open to the father (respondent No. 3 herein) to move that Court for the review of the custody of the child if he is so advised. The passport of the child and the other documents pertaining to him shall be handed over to the Registrar of this Court by Sandeep Gautam (respondent No. 3) within a week from today to facilitate the petitioner to take her child back to Canada. A direction is also issued to the Foreigners Regional Registration Officer, New Delhi to revalidate the visa granted to Mandeep Gautam or to grant a fresh visa as may be appropriate in order to enable the petitioner to take him out of India in pursuance of this Court''s order. As regards the High Commission of Canada a request is made that all possible assistance be given to the petitioner to leave this country with her child to get to Canada.