Veenus Rani vs State of Punjab and ors

Manisha Batra, J

The present petition has been filed by the petitioner under Articles 226/227 of the Constitution off India read with Section 5288 of Bharatiya Nagarik Suraksha Sanhita, 2023 (FOR SHORT ‘BNSS’) seeking issuance of a writ in the nature of Habeas Corpus for the release of detennues, namely Guurleen Kaur and Ashbeer Singh, who are daughter son of the preesent petitioner, from the illegal custody of respondents No. 4 and 5 and to prodduce them beforre this Court.

Learned counsel for the petitioner has submitted that the marriage of the petitioner was solemnized with respondent No. 4-Banti Singh on 04.07.20133 and two children i.e. daughter Gurleen Kaur and son Ashbeer Singh (alleeged detenues) have born out of the wedlock, who are aged abouut 10 years and 05 years respectively and presenntly, they are studying in a schoool at Abohar. The petitioner is working as Sennior Constable in Punjab Police and presently, she is posted at Fazilka. It is furtther submitted that respondent No. 4 was indulged in wrong activities and has been involved in a case relating to offence unnder Section 376 of IPC. He is also involved in a case under the NDPS Actt. Not only this, he is involved in a murder case also. He was also indulged in adultery as he has developed illicit relationship with a lady. The petitioner is not earning anything. When thhe petitioner stopped her from doing all this, he started extending beatings to heer and ultimately, she was turned out of her maatrimonial home. The petitioner had moved an application under Section 1000 of BNSS before the SDM, Fazilka for handing over the custtody of the children to her but vide order dated 02.01.2025, it was wrongly observed by him that the children were happily residing with responddent. However, a conversation, which took plaace between the petitioner and her children haas been placed on record before this Court in the form of a Compact Disc and it would reveal that in fact respondent No. 4 use abusive languuage with them and also beats them.

Learned counsel for the petitioner has further argued that the petitioner, being mother of the children, is legally entitled to get their custody. The children have been forcefully detaineed by respondent No. 4, who is not taking his proper care and for the welfare and well being of the child,, his custody must be handed over to the petitioner. Learned counsel for the petitioner has relied upon the authority cited as Mandeep Kaur vs. State of Punjab annd others : 2021 (3) RCR (Civil)) 451 to submit that a habeas corpus writ petitioon is maintainable for seeking custody of a child, who is illeggally detained by someone. While alleging thaat the custody of the children with respondent No. 4 is not in their welfare, it is urged that an appropriate writ directing the official respondents to get heer children released from respondent No. 4 be isssued.

Reply has been filed on behaalf of respondents No. 4 and 5, who are husbannd and mother-in-law, respectiveely, of the petitioner. While denying the allegations as levelled by the petitioner, it is submitted therein and learrned counsel for respondents No. 4 and 5 has argued that respondent No. 4 is the natural parrent of the children and, hence, the custody of the children with him cannot be termed as illegal. He has also raaised preliminary objection as too the maintainabbility of the present petition by submitting that the approprriate remedy for the petitioner would be to filee a petition under the provisionns of Guardians and Wards Act, 1890 to seek cuustody of the children and not to file a petition before this Court seeking issuance of a writ of Habeas Corpuss for that purpoose. In the proceedings of the aforesaid application moved by the petitioner under Section 100 of BNSS before the SDM, Fazilka, it had reflected thhat the petitioner herself was not ready to reconcile with respondent No. 4 and was only interested in taking custody of the children. It had also come on record that the children were verry much happy with their father. So far as the criminal cases against respondent No. 4 are concerned, he was falsely impplicated by the brother of the pettitioner in an NDPS case. In another case under Section 376 of IPC, he was initially declared innocent but on allowing of an application under Sectiion 319 of Cr.P.C., he has been summonedd to face trial. It is further submmitted that the petitioner had left her matrimonial home on her own and despite several requests made by respondents No. 4 and 5 to come back, shee did not return. Respondent No. 4 is very muchh capable of maintaining both the children as he is in finaance business and earns a handsome amount of money. He is maintaining the children annd is bearing all their expenses too the best of his capacity and in case the custody of the children is given to thee petitioner, the same will not be in the welfare of the children. Hence, it is urged that the petition is liable to be dismissed.

This Court has heard learned counsel for the partiess at considerabble length and has also gone through the record carefully.

This is an admitted position that the petitioner was married to respondent No. 4-Banti Singh on 04.07.20013 and they were blessed with two children i.e. daughter Gurleen Kaur and son Ashbeer Singh (alleeged detenues), who are aged about 10 years annd 05 years, respectively. The cllaim of the pettitioner is that respondent No. 4 is involved in multiple serious criminal case relating to rape, murder andd smuggling of narcotics and is not earning annything to maintain the children. It is also claimed by her that he is involved in an adulterous relationship. She has taken a stand that she was thrown ouut of her matrimonial house as she objected to the illegal and immoral activities of respondent No. 4. As per the petitioner, respondent No. 4 does not deserve the custody of the childrren as he uses abusive language and even extennds beatings to them. Whereas alll these allegations have been denied by responddent No. 4.

The matter was referred by this Court to Mediation and Conciliatioon Centre of this Court for exploring the possibility of some amicable settlement. However, the same could not be materialized but it was agreed bettween them that for a few dayys, the children will remain in the custody off the petitioner and will be brought back before this Court on the next date of hearing. Since then they are in the custody of the petitioner.

Now the question that needs consideration before this Court is as to whether this Court, in a habeas corppus petition, can issue direction to respondent No. 4, who is biological father of the children, to hand over their custody too the petitioner, being their mother? No doubt, this Court while dealing wiith a petition for issuance of a writ of habeas corpus with regarrd to custody off a minor child may direct returrn of the child or decline to chaange the custoddy of the child keeping in mind all the attending facts and circumstannces. However, such decision must depend on the totality of the facts and circumstances of each case brought before the Court. A wriit of habeas corrpus in child custody matters can be invoked only in those cases where the person having the child is not entitled to his/her legal custodyy. In child custoody matters remedy lies only under Guardianship and Wards Act and it cannnot be bypassed by filing a habeeas corpus petition unless the corpus of the chiild is in illegal or unauthorizedd custody. Reliance in this cann be placed upoon Pavan Kumar Kathuroju vs. State of Telangana : 2024 SCC OnLine SC 31. Reliance can also be placed upon the authority cited as Nirmala vs. Kulwant Singh and others : 2024 AIR Supreme Court 23445, wherein Hon’ble Supreme Court, while reelying upon Yashita Sahu vs. State of Rajasthhan and others : 2020 AIR (Suppreme Court) 577 has held that the habeas corpus is a prerogative writ whicch is an extraordinary remedy and recourse too such a remedy should not be permitted unless the ordinary remmedy provided by the law is either not availablle or is ineffective. It has been held that in chilld custody matters, the power off the High Court in granting the writ is qualifiedd only in cases where the detentiion of a minor is by a person whho is not entitleed to his legal custody and in child custody matters, the wriit of habeas corrpus is maintainable only where it is proved that the detention of a minor child by a parent or others was illeggal and without any authority of law. Similar view was expressed by Hon’bble Supreme Court in Rajeswari Chandraseekar Ganesh vs. State of Tammil Nadu and others : 2022 SCC OnLine SCC 885.

In the present case, there is no dispute about the fact that the petitioner and respondent No. 4 are the bioological parents of alleged detennues, who were born out of their wedlock. Hennce, their custody with either off the parents cannot be stated to be illegal in any manner. The children were earlier in the custody of respondent No. 4. Howevver, as per wishes of the parties, they were handded over to the petitioner on 23.01.2025 and thereafter, on the direction of this Court, they are continuing to be with the petitioner. This Court has been apprised that none off the parties has approached the appropriate forum by filing a petition undder the provisions of the Guardians and Wardss Act, 1890 seeking custody of the children. Hence, it is explicit that none of the parties has any authority of laaw to have exclusive custody off the children. So it can be stated that by having custody of the children, respondent No. 4 or thhe petitioner has not defied any order, which was operative agaainst them. Hennce, the petition is not the propper remedy to seek custody of the children. So far as the ratio of law laid down in Mandeep Kaur’s case (supra) is concernned, the same is not disputed at all. However, the same is not applicable to the peculiar facts and circuumstances of the present case as in Mandeep Kaur’s case (supra), the age of the child was found to be below 05 years. Therefore, in view of Section 6 of the Hindu Minority and Guardianship Act, 1956, as per which, thhe custody of a minor who has not completed the age of 05 years should ordinarily be with the mother, the custody of the child was directed to be given to her mother by issuing a wrrit of Habeas Corpus. Certain allegations and counter allegations with regard to misbehavior and conduct of the parties too LIS have also been made by thhem. However, at this stage, there is no need to dilate upon the same and without casting any aspersion on the moral character of the petitioner or respondent No. 4 and considering the position of law as laid down in aforeccited judgments, this Court is of the view that thhe remedy available to the petitioner for obtainiing custody of the children is to file an appropriate petition underr the Guardianship and Wards Act, 1890 and not to seek grant of writ of habeas corpus. However, at the moment, thhe children of the petitioner and respondent No. 4 are staying with the petitioner. During the coursee of interaction with this Court in the chamberr, they have stated that they wannt to live with their mother and not with the fathher. It has also been informed to this Court that the school examinations of the children are to take place till miid of March, 20025. Both the children appear to be quite comfortable with their mother.

Keeping in view the entire facts and circumstances of the case, this Court considers it appropriate that thhe custody of the children remains with the petitioner during the month of March, 2025 i.e. till their examinaation is over, so that they are not disturbed durinng that period. Ordered accordinngly. The petitioner shall thereafter hand oveer the custody of the childrenn to respondent No. 4 on 01.04.2025. Both thee parties shall be at liberty to file an appropriate petition to seek permanent cuustody of the children. At the same time, it is expected from respondent No. 4 that he will not deny the rightts of meeting her children to the petitioner after 01.04.2025. By way of inteerim arrangement, it is directed that till the righhts of the custody of the childrenn are decided byy the competent Court, the petitiooner shall have visitation right too the children, which she will exercise on everyy Saturday from 04:00 PM to 06:00 PM. Respoondent No. 4 shall make the chilldren available at a neutral placee for the said puurpose, without fail.

With the above observations, the present petition stands dispoosed of.