Smt. Manjula Jha vs Ravindra Nath Jha

D.S. Sinha, J.—By means of this petition Smt. Manjula Jha, the Petitioner, prays for the issue of a writ, order or direction in the nature of Habeas Corpus directing her husband Sri Ravindra Nath Jha, the Respondent, to produce their minor daughter K.M. Manjari Jha in this Court and for further direction to hand over the custody of the said child to her.

According to the averments made in the petition, K.M. Manjari Jha is aged a little more than 6 years. She was coming back from her school on 15th April, 1987 along with the Petitioner. The Respondent accompanied by some undesirable persons and his associates called the Petitioner to have some talks for a couple of minutes and then suddenly snatched the said child from her hands and fled away on a scooter taking with him the child forcibly.

The Petitioner alleges that the child was prematuraly born and has been ailing since birth. According to her the child is highly anaemic and has periodical attacks of convulsions. The Petitioner asserts that in this state of health it was absolutely necessary that the child should have the mother''s love and affection.

Further allegations of the Petitioner are that the relationship between her and her husband are strained for the last few years; that she is living separate from her husband since last 4.5 months because the Respondent had fallen into bad company, did not provide food and clothes, treated her with cruelty, beat her and did not keep her according to the family status; that the Respondent is living in adulterous life with one Smt. Santosh Jain; that he has off-springs from the adulterous union with Smt. Santosh Jain and is attached to them; and finally that he has no love and affection for K.M. Manjari Jha.

Relying on the circumstances, stated hereinbefore, the Petitioner asserts that it would not be in the interest of the welfare of the child to allow her to remain in the custody of the Respondent.

From the averments it transpires that the Petitioner has filed an application u/s 10 of the Guardians and Wards Act, 1690 in the court of the District Judge, Aligarh. The said application has been registered as Misc. Case No. 103 of 1987. In the application she has prayed for a declaration in her favour as guardian of the child K.M. Manjari Jha. She has further prayed for the custody of the person of the child. This application is still pending.

Along with her application u/s 10 of the Guardians and Wards Act, 1890, the Petitioner has also filed an application u/s 12 of the said Act for a direction to the Respondent to produce K.M. Manjari Jha in court and for necessary order for entrustment of the child to her. In pursuance of this application the District Judge, A Hgaih, appointed a Vakil Commissioner to serve the notice of the said application on the Respondent and also passed an order calling upon him to produce the child on 14th May, 1987 in his court. The notice and the order were served on the Respondent personally. But the Respondent failed to produce the child in the court on 15th May, 1987 and instead, through his counsel, moved for the adjournment of the case on the ground of his illness. The adjournment application of the Respondent was allowed and 31st July, 1987 was fixed for production of the child. Thereafter the Petitioner moved an application for fixing earlier date for production of the child as she a pprehended danger to the life of the child. This application remained undisposed of as the District Judge appears to have proceeded on leave. In the meantime the Petitioner filed this petition on 26th May, 1987. This Court by means of an order dated 26th May, 1987 summoned the opposite-party to appear before it on 26th June, 1987 and to produce the child Manjari Jha on the said date.

On 26th June, 1987 the Respondent appeared and produced the chid before the Court. For him Sri B.D. Mandhyan Advocate put in appearance and prayed for time for filing counter-affidavit. Sri K.N. Tripathi also, who represents the Petitioner, prayed for time for filing rejoinder-affidavit. Learned Counsel agreed that the case be posted for disposal on 29th June, 1987 and in the meantime they would exchange affidavits. Thus, the case was heard on 29th June.

Sri B.D. Mandhyan, learned Counsel appearing for the Respondent, raised two preliminary objections viz.:

(a) Not only that the Petitioner has got an affective alternative remedy before the District Judge, Aligarh under the provisions of the Guardians and Wards Act, 1890, she is actually pursuing the said remedy and in this view of the matter the court should decline to issue the writ prayed for;

(b) Admittedly, the child being more than 6 years of age, the Respondent is natural guardian u/s 6 of the Hindu Minority and Guardianship Act, 1956 and that being so it cannot be held that the custody of the child with the Respondent is illegal. The child is in lawful custody of the Respondent and as such no writ in the nature of Habeas Corpus ought to be issued.

With regard to the first objection Sri K.N. Tripathi, learned Counsel for the Petitioner, submitted that the rule of alternative remedy was a rule of discretion and the petition could not be thrown out on the ground that there existed an effective alternative remedy and the Petitioner was pursuing the same. To the second objection Sri Tripathi replied that in the matter of custody of minors, the consideration of legal guardianship and lawful custody was irrelevant and the: paramount consideration in such cases ought to be welfare of the minor.

In support of his first contention Sri Mandhyan placed reliance on a decision of this Court in Rajeev v. Smt. Pushpa Devi, 1984 ALJ 358 wherein this Court, after considering various decisions of Supreme Court, this Court and other High Courts, ruled asunder:

Where a proceeding u/s 25 of the Guardians and Wards Act is pending regarding that matter already, as the court exercising such jurisdiction is equally competent to give relief, and questions of fact are already before that court the habeas corpus petition may be rejected with a direction that the court before which the proceeding u/s 25 of the Guardians and Wards Act is pending will determine all controversy involved and give a relief.

This decision has not been shown to have been overruled and I am not pursuaded to disagree with the dictum laid down in the case. The first objection raised by Sri Mandhyan has considerable force and cannot be overruled.

Sri K.N. Tripathi, learned Counsel for the Petitioner, cited following decisions in support of his contention that existence of alternative remedy is no Bar Iqbal Ahmad v. Shabaq Ali Khan, 1985 ALR 526 (FB); Vinayak Goyal v. Prem Prakash Goyal, 1981 AWC 457 (DB), Smt. Imtiaz Bano Vs. Masood Ahmad Jafri and Others, and Shoib alias Shebu v. Sabir Ali alias Shaboo, 1987

All the authorities cited by Sri Tripathi lay down that existence of an effective alternative remedy is no bar for issuing a writ of Habeas Corpus. The proposition is well settled and no exception can be taken to it.

Existence of availability of an effective alternative remedy is one thing and pursuing the remedy another. The cases where there is more availability of effective alternative remedy and the cases where such remedy is being actually pursued also cannot be equated with each other. They stand on two different footings. In all the cases cited by Sri Tripathi there was more existence of alternative remedy but in none of them such remedy was being pursued. These authorities, therefore, do not help the Petitioner.

The second objection of Sri Mandhyan does not appear to have much substance. Sri Tripathi is right in submitting that in such cases the paramount consideration should be the welfare of the minor and not the legal right of any party to have the custody of the minor. This submission of Sri Tripathi is fortified by a decision of the Hon''ble Supreme Court in Dr. (Mrs.) Veena Kapoor Vs. Shri Varinder Kumar Kapoor, .

But the question with regard to the welfare of the child is basically a question of fact requiring investigation and proof. It cannot be decided merely on the basis of the averments made in the petition, counter-affidavit or rejoinder-affidavit. Determination of the issue with regard to the welfare of the minor necessarily involves consideration of oral or documentary evidence or both and, in the absence of any extra-ordinary circumstance it may not be proper for this Court, in exercise of its jurisdiction Under Article 226 of the Constitution, to decide questions of fact proof whereof may require evidence.

In the instant case parties are at variance on the question of their respective capability of looking after the welfare of the minor. Both parties assert that it would not be in the interest of the welfare of the minor to allo-v custody of the child to the other side. The matter in relation to the welfare of the minor can appropriately and effectively be investigated and adjudicated upon by the District Judge before whom the application of the Petitioner under the provisions of the Guardians and Wards Act, 1890 is pending.

Having regard to what has been discussed above, the objection raised by Sri Mandhyan, learned Counsel for the Respondent succeeds. The Petitioner should pursue her remedy before the District Judge, Aligarh, for which she has already initiated proceedings under the provisions of the Guardians and Wards Act, 1890. Keeping in view the exigency of the situation the District Judge, Aligarh, is directed to dispose of the application of the Petitioner for interim custody of the child on 31st July, 19S7 on which date the Respondent shall appear and produce the child before the District Judge, Aligarh.

In the result the petition fails and is hereby dismissed. Parties are directed to bear their own cost.