Smt. Beena Jaiswal vs Deepak Kumar and Others

G.P. Mathur, J.—Smt. Beena Jaiswal has filed this Habeas Corpus Petition praying that her son Himanshu Kumar alias Lucky be released from the illegal custody of the Respondents and he handed over to her custody. The Respondent No. 1 Deepak Kumar is the husband of the Petitioner, Respondent Nos. 2 and 3, namely, Ram Dulare and Smt. Kunta are her-in-laws and Respondent No. 4 Akkoo is her husband''s brother.

The case of the Petitioner, in brief, is that she was married to Deepak Kumar on 4.12.92 and her parents gave substantial dowry in the marriage. However, the Respondents continued to make further demands of dowry. She gave birth to a male child Lucky alias Himanshu Kumar on 9.5.94 at her parents house who live in the same city of Kanpur. The Respondents tried to forcibly take away the child Lucky on 22.5.94 regarding which a complaint was made at the police station and at the intervention of the incharge, S.I. of the police station, an agreement was arrived at between the parties and thereafter she started living in her husband''s home. The Respondents gave her very cruel treatment regarding which she gave information to her parents who came and took her to their house. The Respondents did not allow her to take her son Lucky and they were illegally detaining him. The case of the Respondents is that there was no demand of dowry and some ordinary gifts were given at the time of marriage which are customary in the family. The Petitioner and her parents tried to create problems soon after the marriage and they wanted that Deepak Kumar should live separately and away from his parents and other family members. Rohit brother of the Petitioner abused and misbehaved with the Respondents on several occasions and even threatened them with regard to the incident which took place on 22.5.94. A First Information Report was lodged on the next day but the matter was got compromised at the intervention of some persons and police officials. The Petitioner left the house of her husband without his consent sometime in July/August, 1994 leaving the child--Lucky and continued to live in her parents house for quite sometime. She came back but again left the house of her husband on 3.12.94 against his wishes leaving her son. A F.I.R. regarding this incident was lodged on the same night. The Petitioner moved an application u/s 97, Code of Criminal Procedure which was dismissed. It is further pleaded that the Petitioner has herself left the house of her husband as she does not want to stay with his parents and other relations and that she has no love or affection or concern for her son Lucky alias Himanshu Kumar.

Shri A. K. Yog learned Counsel for the Respondents has submitted that as the child is living along with his father and paternal grandparents, he is not being forcibly or unlawfully detained and as such, the habeas corpus petition is not maintainable. According to learned Counsel, if the Petitioner wants to get custody of her son, the proper remedy is to file a petition under Guardians and Wards Act. In my opinion, the contention of Sri Yog that a writ of habeas corpus is not maintainable Is not correct. In Extra-ordinary Legal Remedies by Ferris & Ferris in Para 4, it has been observed, while dealing with habeas corpus petitions, that such a writ is maintainable for custody of infants at the instance of the party who is entitled to their custody. In Halsbury''s Laws of England Vol. 11, Para 1469, the law on the point has been stated as under:

A parent, guardian or other person who is legally entitled to the custody of a minor can regain that custody, when wrongfully deprived of it, by means of writ of habeas corpus. For the purpose of the issue of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restrain or force is being used towards the minor by the person in whose custody and control he Is for the time being.

Therefore, even if the custody of Lucky by the Respondents is not unlawful, the present habeas corpus petition filed by his mother is fully maintainable.

It is true that the Petitioner can move an application under Guardians and Wards Act for having the custody of her son but that by itself is no ground to refuse a writ of habeas corpus. It has been observed in Halsbury''s Laws of England Vol. 11, Para 1455 that a writ of habeas corpus may not in general be refused merely because there exists an alternative remedy by which the validity of the detention can be questioned. This question has been examined in considerable detail by a Division Bench of our Court in Vinayak Goyal v. Prem Prakash Goyal 1981 AWC 457, wherein it has been held that a writ of habeas corpus would be maintainable for the custody of the child despite an alternative remedy of filing an application under Guardians and Wards Act. Thus there can be no doubt that the present habeas corpus petition filed by the mother for custody of her son who is at present residing with his father and grand-parents is fully maintainable.

Sri K. P. Agarwal, learned Senior Counsel for the Petitioner has submitted that at the time of marriage Beena Jaiswal, a substantial dowry was given but on account of greed, the Respondent No. 1 and his parents continued to harass her by making further demands of colour T.V., Motor cycle, besides Rupees fifty thousand as cash as the Petitioner''s father who was working in a Bank had received several lakhs by way of post-retirement benefits. Learned Counsel has further urged that as the demand of Respondents was not met, the Petitioner was thrown out of the house and under force of circumstances, she is living with her parents and the child has been illegally detained. Sri A. K. Yog has strenuously controverted the allegations made against the Respondents regarding demand of dowry or of any ill-treatment having been meted out to the Petitioner. It is difficult to record any finding on this question only on the basis of affidavits and without taking oral evidence. The copies of the F.I.R., complaints and the petition u/s 97, Code of Criminal Procedure which was filed by the Petitioner do show that some exaggeration has been done by the Petitioner and that she also does not want to stay in the same house in which the parents, brothers and sisters of her husband are living. Probably she wants to live separately alongwith her husband so that she may be able to lead an independent life.

Learned Counsel for the Petitioner has submitted that as the age of Lucky is only about 2 years, in view of Section 6(a) of Hindu Minority and Guardianship Act, the mother is entitled to his custody even though the father may be his guardian and, therefore, the Respondents are not entitled to keep him (Lucky) in their custody. It is urged that for an infant of such a young age, the mother besides being legally entitled to have the custody, is also the most suitable person for keeping the child. In support of this submission, learned Counsel has placed reliance on Saraswatibai Shripad Ved Vs. Shripad Vasanji Ved, ; Suresh Babu Vs. Madhu, ; Smt. Manju Tiwari Vs. Dr. Rajendra Tiwari and another, . In this connection, it may be noticed that the dispute here is not between a person having a legal right and a stranger but basically between a father and mother for the custody of their child. Section 6(a) of Hindu Minority and Guardianship Act lays down that natural guardian of a Hindu Minor in respect of his person and property is father and after him, the mother but the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The question involved cannot, however, be decided strictly on the basis of the aforesaid statutory provision. The Supreme Court had an occasion to consider this question in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, , wherein it has been observed as under:

Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

It is, therefore, clear that the matter regarding custody of the minor boys should not be decided on the basis of the legal rights of the Petitioner or Respondent No. 1 but on the paramount consideration of their welfare.

What will be in the interest and welfare of the child Lucky, namely, whether he should remain with the Petitioner (mother or with the Respondent No. 1 (father) has now to be examined. Welfare means prosperity, health, well being, success, the state of being healthy and happy. In Vinayak Goyal''s case (supra). the Court had an occasion to consider the word ''welfare'' in relation to minors and it was held as follows:

The expression ''welfare'' has to be read in the largest possible sense as meaning that every circumstance must be taken into consideration, and the Court must do what under the circumstances a wise parent acting for the true Interest of the child would or ought to do. In Queen v. Gyngull (1983) 92 QBD 232 Lord Justice Lindley observed:

The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money or by physical comfort only, the word must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as his physical well being. Nor can ties of affection be disregarded.

In order to consider welfare of the child Lucky, in my opinion, there are three basic requirements which have to be weighed and balanced and they are financial capacity of the parties, capacity to provide education and medical care apart from a proper atmosphere which is conducive to the growth and development of the child. The condition of the family of the Petitioner and Respondent No. 1 may now be examined from the aforesaid angle.

Respondent No. 1 Deepak Kumar is working as Clerk in Ordinance Equipment Factory, Kanpur (Ministry of Defence) and is getting Rs. 3,250 per month. His father Ram Dulare (Respondent No. 2) is working as Ward Boy in a Government Hospital in Kanpur and is getting Rs. 2,800 per month while his mother Smt. Kunta Devi (Respondent No. 3) is working as a Nurse in District Hospital and is also getting Rs. 2,800 per month. He has an unmarried brother Milan Kumar who is Development Officer in LJC and gets a salary of Rs. 4,500 per month. So far as the Petitioner is concerned, she has parsed High School and is unemployed. Her father Harish Chandra is a retired Group ''D'' bank employee and her mother is a house wife. Her one brother Rohit is a Group ''D'' employee and is the only working and earning member in the family. This shows that father Deepak Kumar is not only a Central Government employee himself, having security of employment but his parents and brother who are all living together are having a reasonable income. Thus, the financial condition of the family of Respondent No. 1 is far superior to that of the Petitioner.

Regarding education, it is stated in the counter-affidavit that Deepak '' Kumar is B.A., his brother Milan Kumar is M.A., another brother-Amit is studying in B.Sc. Part I, sister Kumari Madhu has passed M.A. and is preparing for Civil Services examination and a younger sister Kumari Suman is studying in High School. So far as the Petitioner''s family is concerned, the Petitioner herself is High School, her mother is uneducated, one brother Rohit is a Group ''D'' employee and another brother Guddu aged about 21 years has passed High School in the year 1995. The Respondent No. 1 himself is a graduate and his brothers and sisters are well-educated. It is surprising that though living in a big city of Kanpur, no one seems to have studied beyond High School in the family of the Petitioner. This shows that scant regard is being paid to education in the family of the Petitioner and without education there can hardly be any progress. In a recent Article by Shri N. A. Palkhivala published on Hindustan Times on 12.5.1996 regarding Agenda for the new Government, the eminent jurist has put education at the foremost in the following words:

Education is the rock on which India must build political salvation. Our country will be built not on bricks but on brains : not on cement but on enlightenment. If we cannot afford education, we cannot afford to remain a civilised society.

The material on record shows that considerable attention is being paid to education in the family of the Respondents and obviously, exists better academic atmosphere there.

Regarding health care as already noticed, Ram Dulare (father of Deepak Kumar) is working as Ward Boy in the Medical College Hospital while Smt. Kunta Devi (mother of Deepak Kumar) is working as Nurse in U.H.M. Hospital, Kanpur. Thus both the grand-father and grand mother being employed and working in big hospitals, cannot only themselves take good care of the child but will also be in a position to get expert medical advice from competent doctors which may be difficult to get for an ordinary person. Thus, there can be no doubt that Lucky will get better medical care and aid if he stays with the Respondents.

All the three factors enumerated above, weigh heavily in favour of father Deepak Kumar.

Learned Counsel for (he Petitioner has strenuously urged that the child being aged about 2 years only, he needs breast-feeding which can only be provided by the mother and, therefore, this consideration alone outweighs all other factors and consequently, his custody should be given to the Petitioner. In this connection, it may be noticed that the precise date on which the Petitioner is alleged to have been turned out of the house and since when the child is being allegedly detained has not been given in the petition. The allegations In this regard are absolutely vague. On the contrary, it is asserted by the Respondents that the Petitioner herself left the house on 3.12.1994. Copies of two First Information Report lodged by Deepak Kumar Respondent No. 1, one at 20.00 hours on 3.12.1994 and the other on 20.2.1995 have been filed alongwith counter-affidavit wherein it was mentioned that the Petitioner Beena Jaiswal left the house on 3,12.1994. This corroborated the version of the Respondents that the Petitioner left the house of her own on 3.12.1994. Therefore, since 3.12.1994 when Lucky was aged about 7 months, he is living with the Respondents and he is now aged about two years. He has not been getting mother''s milk for all this period. Along with supplementary counter-affidavit, copies of some articles and medical Journals have been filed which show that breast-milk is sufficient for feeding of the baby until he is five months old but thereafter it has to be supplemented with cereals and other type of foods. After the age of eight months, usual foods cooked at home can be used like bread or chapati soaked in dal, rice and curd and by his first birth day, baby should be eating the usual household diet (page 43). They further show that if the breast-feeding is not done for some period, lactation stops. It is not the case of the Petitioner that Lucky is not having proper growtn or that he is not having normal health. If he has survived for 1 1/2 years without mother''s milk, there will be no difficulty now as he is old enough to eat the normal home cooked food.

There is another aspect of the matter which should not be ignored. Though there is no substitute for mother''s love and affection but the fact remains that the child Lucky is living away from his mother since he was aged about seven months. In this period of 1 1/2 years, he must have completely forgotten his mother and the only people he would be knowing is his father and members of his family. The family members of his mother would be total stranger for him. If he is uprooted from the family of his father at this stage and is forced to live with his mother''s family, he is likely to take a long time to get over the shock which he may get in this process.

Having given my careful consideration to the submissions made by the learned Counsel and the material on record, 1 am clearly of the opinion that it is in the welfare of the child Lucky to continue to stay with his father (Respondent No. 1). The Petitioner is undoubtedly be entitled to meet her son and have his company. It is accordingly directed that the Respondents will permit the Petitioner to meet her son Lucky for a reasonable period twice in a week, the timings for which may be adjusted according to the convenience of the parties. If a proper arrangement cannot be arrived at by the parties themselves, it will be open to the Petitioner to move an application in this regard before the District Judge, Kanpur Nagar, who may pass appropriate orders for this purpose after hearing the parties. It will be open to learned District Judge, Kanpur Nagar to assign this matter to any oilier Additional District Judge in his Judgeship.

Before parting with the case, I would like to observe that the parties must realise that for a healthy growth and development, a child needs company of both of his parents, namely, father and mother. One cannot be a substitute for another. If the parties really desire the welfare of the child, they must patch up their differences and live together. I hope and trust that Lucky would act as a uniting factor which would bring his parents together so that he is brought up in a happy and proper atmosphere conducive to his development and growth.

For the reasons mentioned above, the habeas corpus petition is dismissed.