Jasbir Kaur vs State of Punjab

R.L. Anand, J.

Jasbir Kaur has filed the present petition u/s 482, Cr.P.C. read with Article 226 of the Constitution of India, seeking the directions of this court for the custody of her minor daughterHarpreet aged about 21/2 years, who is presently in the custody of respondents 3 to 5.

The prayer of Jasbir Kaur has been resisted by respondents 3 to 5 on the plea that as per the arrangement, Jasbir Kaur willingly parted the custody of the child to her husband Saran Singh. She is a lady of bad character and has no financial means to look after and bring up the child. Smt. Jasbir Kaur, on the contrary, has alleged that her husband is keeping a woman by the name of Ashok Kumari, who was earlier the wife of Jainti. She submits that she can well maintain the child in the house of her parents. Mother of the petitioner is also present and I have also interviewed her separately. The father of the petitioner is an employee in H.M.T. Of course, he has 3 daughters and one son. The question in these circumstances, would always arise what is in the welfare of the child. Harpreet is a child of 21/2 years. As per section 6 of the Hindu Minority and Guardianship Act, ordinarily, the custody of a child below 5 years should be with the mother. It was stated before me by the learned counsel for respondents 3 to 5 that for the last about one year the child is in the custody of her father and she is not even in a position to recognise her mother. This stand of the respondents is not tenable because the child is too tender of age of 21/2 years and, in these circumstances, naturally, at this stage, she will not be able to identify her mother. There is no prima facie proof at this juncture produced by the respondenthusband that Jasbir Kaur is a lady of loose character. There is no finding against the petitioner nor any FIR has been registered against the petitioner that she is carrying on immoral activities. The fact has also come to the notice of the court that Jasbir Kaur has filed a petition u/s 125, Cr.P.C. against her husband and that litigation is pending before the court of Judicial Magistrate 1st Class, Kharar. This court has also made efforts to bring about reconciliation between the petitioner and Swaran Singh but both the parties are adamant and level allegations versus conterallegations. Be that as it may, I have to see the welfare of the child. The child is of a very tender age and, in these circumstances, I consider it appropriate to temporarily hand over the custody of the child to her mother. Swaran Singh has been directed to hand over the child to Jasbir Kaur and the child has been handed over to her in the presence of the court.

Admittedly, Swaran Singh is the father of the child. Where the ultimate custody of the child should remain is a matter which is in the domain of the Guardian Court. Swaran Singh can file a separate petition before the Guardian Court and can claim the custody of the child and he can also make an application that the immediate custody of the child should remain with him. This point is left to the Guardian Court itself. If the petition is made by Swaran Singh before the Guardian Court and in the eventuality of his making an application for the immediate custody of the child directions are given to the Guardian Court to decide the said application within one month from the receipt of the application. Directions are also given to Jasbir Kaur to appear before the Guardian Court and she will not evade service.

Till the fate of Harpreet is adjudicated by the Guardian Court, further directions are given to Jasbir Kaur to allow access to Swaran Singh to visit the child for two hours per day. Swaran Singh will have to go to the house of his wife if he wants to see the child. Directions are also given to Jasbir Kaur to bring up the child properly.

Nothing stated above shall amount to an expression of my opinion on the merits of the litigation which might be launched by Swaran Singh against the petitioner.

The petition stands disposed of.