Kulwant Kaur vs Senior Supdt. of Police

S.C. Malte, J.—This petition under Article 226 of the Constitution of India has been filed for getting the custody of the child who, allegedly, has been forcibly taken away by respondents 2 and 3 on 29.6.1996. Circumstances giving rise to this petition can be briefly summarised as follows :

One Jaskeerat Kaur was married to Kuljeet Singh. It is claimed that Kuljeet Singh and his parents had a grievance that Jaskeerat Kaur has not brought sufficient dowry at the time of marriage, and had not brought enough amount on the occasion of birth of the child Jiwan, who is .presently the subject matter of this litigation. The allegation further indicates that having been dissatisfied with the dowry, arro. the inadequacy of the amount, as mentioned above, allegedly, on 23.10.1995 the said Kuljeet Singh and Gurmail Singh held the arms of Jaskeerat Kaur and Manjeet Kaur (mother-in-law of Jaskeerat Kaur) poured some pesticide in the glass and it was forcibly made to drink by Jaskeerat Kaur. Gurmail Singh is father of Kuljeet Singh. That is how they allegedly caused the death of Jaskeerat Kaur. It is not necessary to go into the details of the FIR, but suffice it to mention that on the basis of the FIR lodged by Jasbir Singh, the maternal uncle of the deceased, the police registered an offence u/s 304-B read with 34, IPC against these accused. Eventually, Kuljeet Singh and Gurmail Singh were arrested by the police on 22.11.1995. It was followed by the arrest of Manjeet Kaur on 18.1.1996. Under these circumstances, the question of custody of the child Jiwan arose.

In the petition, it is claimed that since the death of the mother of child, the child was in the custody of the petitioners who were maternal grand mother and maternal uncle of the child. As against that, it is claimed by the respondent 2 that the child had been entrusted to him on 15.1.1996 by Manjeet Kaur (grandmother of the child).

It is not necessary to go into the question as to haw the custody of the child passed on to one person or another. The short question before me would be whether the custody of the child would be now granted to the petitioners.

As such, in my opinion, the remedy available to the petitioners was twofold. If they considered that the present custody of the child with the respondents 2 and 3 ia a confinement amounting to an offence, the petitioner could have moved the concerned Magistrate u/s 97 of the Cr.P.C. for issuance of a warrant for the production of the child. The second remedy available was to file a petition under the Guardian and Wards Act for the custody of the child on the ground that would be justifiable for such custody under the said Act. In the given circumstances, even the Court exercising the powers under the Guardian and Wards Act would have issued order of the immediate production of the child before that Court. The petitioners have not opted for either of those remedies and they have rushed to the High Court under Article 226 of the Constitution. I have thought it necessary to get the child produced on realising that the matter ultimately concerned with the young child who is about 3% years. Pursuant to my order dated 30.9.1996, the child is now brought before me.

Reply filed on behalf of the State indicates that the child was with the respondent 2 at Village Padampur in Rajasthan. Respondent 2 is the first cousin of the father of the child. The daughter-in-law of the respondent 2 is Surinder Pal Kaur, resident of Padampur, District Ganganagar. In her affidavit she has stated in para 7 that she undertakes the responsibility and safety of the child Jiwan. She is a teacher in Government School at Padampur and her husband is employed in the Canal Department at Padampur. The couple has two school going children. The child was brought from Surinder Parkash.

In these circumstances, I find that this is not a case in which this Court would exercise powers under Article 226 of the Constitution. Hence, petition is dismissed. The child may be returned to Surinder Pal Kaur who is present in the Court.