Mrs. Rukma Singh And Another vs Suhaib Ilyasi
2001 Latest Caselaw 156 Del

ORDER

Devinder Gupta, J.

1. The short question for our determination in this appeal is that whether learned Single Judge while deciding application (IA.6576/2000) under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short "the Code") has or has not exercised discretion properly.

2. By the impugned order the defendant/appellants have been restrained from forcibly taking custody of the minor child from the plaintiff/respondent reserving liberty to the appellants to initiate proceedings in accordance with law to take custody of the child.

3. The facts in brief are that on 5.7.2000 suit was filed by the plaintiff seeking a decree for permanent prohibitory injunction against the defendant/ appellants restraining them from forcibly taking away the child Aaliya, the plaintiff's daughter, from his legal and physical custody or in any manner disturbing the peaceful custody of the child Aaliya from the plaintiff. Decree was claimed, inter alia, alleging that the plaintiff was married to Anju Singh, daughter of appellant No.1 and sister of appellant No.2 on 18.11.1993 in London. After marriage they came to India in October, 1994 and stayed at flat No.D-506 UNESCO Apartments, New Delhi, which belonged to the parents of Anju Singh and was lying vacant as her parents often stayed abroad. From the marriage, child Aaliya was born on 24.9.1997. In the first week of December, 1999 the plaintiff and Anju Singh shifted to their own apartment at B-13, IFS Apartments, Mayur Vihar-1, Delhi. Anju died on 10.1.2000 at her Apartment in Mayur Vihar-1. Delhi, During inquest proceedings, appellant No.1 and her son made their statements. None of the close relatives suspected any foul play in the death of the wife of the plaintiff and claimed that the deceased was hot headed and short tempered and had committed suicide. Elder sister of the deceased had also sent her statement through fax message from U.S.A. wherein she did not suspect any foul play.

4. The plaintiff further alleged that appellant No.2, another elder sister of the deceased living in Canada came to India on 14.2.2000 and on 16.3.2000 she submitted a 12 page typed written statement to the Sub Divisional Magistrate levelling allegations of harassment and torture against the plaintiff. On 22.3.2000 another 7 page supplementary statement contrary to the statement, which she had made earlier was submitted. Appellant No.1 also changed her position during this period and thereby supported the version of appellant No.2. On the basis of their statements FIR No.94/2000 was registered at Police Station Trilok Puri under Section 498A/304B/201/34 I.P.C. It is further alleged that appellant No.2, who is aged 37 years is living in Canada. Being a lonely lady she developed a desire of taking Aaliya for her own as a support in her old age and with this motive in mind, she levelled charges against the plaintiff and got the FIR registered against him on false charges. The plaintiff further alleged that Aaliya was and continues to be staying with him and is in his custody, who had been taking proper care of the child. After plaintiff's arrest on 28.3.2000 in connection with the aforementioned FIR, minor child stayed at Kasturba Gandhi Marg. New Delhi with plaintiff's parents. Taking undue advantage of plaintiff's arrest, the appellant came to the residence of the parents of the plaintiff on 28.3.2000 in the forenoon and lured the minor on the pretext of taking her for outing and took her away with them. They did not return the child to the plaintiff's parents. Accordingly, an applicant was sent by the plaintiff from jail to the court or Additional Metropolitan Magistrate, Karkardooma on 6.4.2000. While in judicial custody, the plaintiff apprehended that the appellants had intention to take away Aaliya from the jurisdiction of the Court, which led in filing Habeas Corpus petition (CW.252/2000), in which this Court restrained the appellants from taking away the minor from out of the Court's jurisdiction.

5. The plaintiff further alleged that he was ordered to be released on 2.6.2000 and ever since his release on bail, minor Aaliya has been staying with him. On 3.7.2000, appellant No.2 again came to delhi. On her arrival the plaintiff became apprehensive that the peaceful custody of the minor child might be disturbed by her in collusion and connivance with appellant No.1 who is an old lady and had almost lost her mental equilibrium. Considering her past behavior, the plaintiff alleged that she might go to any extent in disturbing the custody of the minor. Under the threat of getting the bail cancelled appellants had been pressuring the plaintiff to send Aaliya to Canada with appellant No.2. It is alleged that the plaintiff was producer of famous T.V. Programme "India's Most Wanted", which had exposed criminals and had helped in apprehending several most wanted criminals in various crimes. His life was threatened by criminal world. Because of this he has been provided security cover. Making other allegations about his apprehension that the custody of minor Aaliya might be disturbed by the appellants, the plaintiff claimed decree for permanent injunction aforementioned.

6. Simultaneously with the suit, an application under Order 39 Rules 1 and 2 of the Code was filed praying for ex parte ad-interim order of injunction. On being satisfied that prima 'facie' case existed, notice was issued to the appellants and an ad interim order of injunction was passed on 6.7.2000 restraining the appellants not to forcibly take the child from the custody of the plaintiff.

7. The defendants put in appearance and filed their reply on the affidavit of appellant No.2. Besides taking preliminary objection about maintainability of the suit, the appellants alleged that under Mohammedan Law, appellant No.1 is the legal guardian of her grand daughter and it is not correct on the part of plaintiff to say that he being the father is the legal guardian of the child. Appellants alleged that child Aaliya was in legal custody of appellant No.1, who was entitled to have the custody of the child and such right is clearly recognised and protected by an order passed on 14.4.2000 passed this Court in Writ Petition (Criminal) No.252 of 2000. Entitlement to the custody of appellant No.1 is clearly recognised in the said order.

8. The appellants further allege that on or about 4th or 5th June, 2000 Mr. Mannan, Advocate of the plaintiff/respondent contacted appellant No.1 telephonically and requested to allow the plaintiff to see his minor daughter. In view of such request, even though appellant No.1 was fully entitled to have the custody of the child, she allowed her husband to take the child to the plaintiff. Practically on alternate days husband of appellant No.1 would take the child to see the plaintiff, who was released on bail on 3.6.2000. Child was being brought back to her on the same day. After 3.6.2000 minor child must have visited the plaintiff for not less than 10 times. However, on 1.7.2000 as usual the husband of appellant No.1 took the child Aaliya to see her father and in the evening the husband of appellant No.1 did not being the child back. Appellant No.1 was informed by her husband that child would come back the next day. When child did not come back on 2.7.2000 appellant No.1 reminded the plaintiff to bring back the child to her. Despite making request number of times appellant No.1 was not obliged by the plaintiff. She had even to contact Mr. Rajiv Ranjan, A.C.P. telephonically in this regard on which appellant No.1 was assured that he would look into the matter. All steps to get back the custody of the child failed and on 7.7.2000 the appellant received a rude shock. She learnt that the plaintiff had obtained an ex parte order restraining the appellants from taking the custody of the child.

9. On the basis of the aforementioned pleading sand back ground, learned Single Judge in his order after narrating facts somewhat in detail and the respective cases set up by the parties proceeded to observe that for the purpose of deciding the application under Order 39 Rules 1 and 2 of the Code it may not be necessary for him to go into the question whether the parties are governed by Mohammedan Law or by any other law since it was alleged that the plaintiff and Anju had married under the Foreign Marriage Act. He, however, observed that no one can be permitted to take law into his hands and since the child was admittedly in the custody of the plaintiff, the appellants cannot be permitted to use force to take the child away from the plaintiff's custody. It was further observed that at the same time there cannot be any restriction upon the appellants to take proceedings in accordance with law to take the custody of the child.

10. Learned counsel for the plaintiff/respondent contended that learned Single Judge having exercised discretion properly and lawfully by taking into consideration all relevant factors, which are required to be taken while disposing of an application for grant of interim relief, there was no justification in interfering with the order impugned against. Learned counsel for the appellants, however, contended that discretion has not been exercised properly. Learned Single Judge failed to give due credence to the order passed by a Division Bench on 14.4.2000 and failed to examine the conduct of the plaintiff, who had acquired custody of the child contrary to the spirit of the order dated 14.4.2000 and had failed to take out any proceedings in obtaining custody of the minor. Learned Single Judge failed to go into the question of the rights of the respective parties to have the legal custody of the child and above all it was the bounden duty of the Court to have considered the welfare of the child before granting injunction.

11. We have given due consideration to the respective submissions made at the bar. At the very out set, we may observe that the proceedings taken out by the plaintiff are neither proceedings for declaration of his rights that he is a lawful guardian nor proceedings for custody of the minor. It is a simple suit for prohibitory injunction by a father of the minor seeking decree against the maternal grand mother and her daughter restraining them from removing the minor from his physical custody or in any manner disturbing the peaceful custody of the child, which admittedly is with the plaintiff.

12. There is no dispute that as on the date of filing of the suit the minor child was in the custody of the plaintiff and continues to be so till date. In connection with registration of FIR 94/2000 of P.S. Trilok Puri the plaintiff was arrested on 28.3.2000 and was ordered to be released on 2.6.2000. He was actually enlarged on bail on 3.6.2000. Till 28.3.2000 the child was staying the plaintiff. It is an admitted position that on and from 28.3.2000 the child was with appellant No.1. There is a dispute amongst the parties as regards the actual physical custody of the minor child for the period from 3.6.2000 to 1.7.2000. Version of the appellants is that from 3.6.2000 to 1.7.2000 the child was being taken regularly by the husband of appellant No.1 to the plaintiff on alternate days and would be brought back but on 1.7.2000 the husband of appellant No.1 took the child. It was not brought back and she was told by her husband that the child would come the next day and it never returned back. Version of the plaintiff is that from 3.6.2000 onwards the minor child has stayed with him at Kasturba Gandhi Marg, New Delhi. The plaintiff, however, in his plaint has not furnished details as to the manner in which the child returned to his physical custody after he was released on bail on 3.6.2000. In the writ petition filed by him seeking direction against the appellants not to remove the child away from the jurisdiction of the Court. the plaintiff had admitted that the child was with appellant No.1 from 28.3.2000 onwards. On 14.4.2000 Division Bench while disposing of the said habeas corpus petition had recorded the undertaking of the appellants that in case the child is to be removed from the jurisdiction of the Court, prior permission will be obtained from the appropriate court. Obviously, the Court while disposing of the habeas corpus petition did not examine the question about the custody and welfare of the child. Though learned counsel for the plaintiff while raising a point about the custody and welfare of the child and the admission and studies in a school in Golf Link submitted that he will take appropriate proceedings in law for the custody and welfare of the child. On this the Court observed that it is open for the plaintiff to take such steps as are permissible in law for the custody and welfare of the child. The question of custody and welfare was left open. Purpose of the habeas corpus petition was served when statement was made on behalf of the appellants that the child will not be removed form the jurisdiction of the Court without prior permission.

13. In our view, submission of learned counsel for the appellants that while disposing of the application for interim relief in the suit. It was incumbent for the Court to have gone into the question of the rights of the respective parties as to the entitlement of the custody of the minor and also the question as to the welfare of the minor, in the facts and circumstances, have no force. Court at the stage of considering that whether or not the plaintiff was entitled to an interim injunction against the defendants, who admittedly were not having physical control over the child on the date of filing of the suit was not obliged to go into such disputed and complicated question, since proceedings are not for the custody of the minor, but only to protect the plaintiff against the threatened action of the appellants in removing the child from his care and custody. The question that whether personal law of the minor would or would not be applicable or as to who would be entitled to have the care and custody of the minor up to a particular age, are such questions, which will have to be gone into and decided in appropriate proceedings in a competent court of law, as and when such proceedings are initiated.

14. The plaintiff has not disclosed in the plaint about the manner in which the minor, who in fact during the period of his arrest was with appellant No.1, that how the child came to his care after he was enlarged on bail. This is the appellants grievance. But in our view non-disclosure of this fact is not fatal to the suit. For such like suit for injunction the said fact is not a material fact. It will still be open to the appellants to seek better particulars on this aspect. However, for the sake of deciding this appeal, we may take the facts, as are stated by the appellants in the appeal to be true that the child was under the care of the appellant No.1 during the period the plaintiff was in jail and after he was enlarged on bail the child continued to be with her till 1.7.2000. The child according to appellant No.1 was being taken by her husband on alternate days to the plaintiff at plaintiff's residence and was being brought back to appellant No.1 the same day. In that sequence, it is admitted by the appellants that on 1.7.2000 the child was delivered into the care f the plaintiff by the husband of appellant No.1, who assured appellant No.1 that the child would come back the next day. Ever since the child admittedly is under the care of the plaintiff. In these circumstances it has to be assumed that the plaintiff did not use any force to take away the custody of the child from appellant No.1. Rather the child was voluntarily kept with the plaintiff. As during the period the plaintiff was in jail, he thought that the child was being looked after by maternal grand mother, therefore, he thought of protecting his rights que the child by initiating proceedings that the child may not be removed to a place beyond the jurisdiction of the Court. Beyond that he could not have initiated other appropriate or effective proceedings against the appellants. After the child was brought back to him by the husband of appellant No.1, he retained the child with him and did not return the child to the appellants.

15. May be that under Mohammedan Law the maternal grand mother be entitled to the custody of the person of the minor up a to certain age but even according to Mohammedan Law, she is not the natural guardian in presence of the father, who alone is the natural guardian. Under the Guardian and Wards Act, the word "guardian" has been defined to mean a person having the care of the person of a minor or of his property or of both his person and property. The word "guardian" is used in a very wide sense. It does not necessarily mean a guardian duly appointed or declared by the Court. Any person who has the care of the person of the minor is the guardian of the person and any person who has the care of the property of the minor, is the guardian of the property of the minor within the meaning of Guardian and Wards Act. May be fr the duration during which child remained with appellant No.1 during plaintiff's period of arrest, the said period cannot be said to be depriving the plaintiff of the lawful guardianship. Learned Single Judge while deciding application under Order 39 Rules 1 and 2 C.P.C. was obliged to take into consideration the fact that in whose custody the child was as on the date of filing of the suit or that whether or not the plaintiff had the custody lawfully. The child was in his care ever since he was enlarged on bail, which fat was not disputed by the appellants in their reply. The appellants also did not allege that the plaintiff had forcibly removed the child from appellant No.1 Rather the version of appellant No.1 was that her husband had delivered the child to the plaintiff, who despite requests did not return the child to her care. Under these circumstances, and as admittedly the plaintiff is the father of the minor, learned Single Judge was justified in observing that nothing would come in the way of the appellants in taking out appropriate proceedings for custody of the child. It will be the function of that Court in which proceedings for the custody of the minor are taken out to take into consideration the principle of law in relation to the custody of a minor. In considering the question of custody of the minor, this Court has to be guided only by considering the welfare of the minor. But the scope of the present suit cannot be enlarged to convert it into a guardianship suit.

16. Learned counsel for the appellants submitted that trial court did not give due credence to the order passed on 14.4.2000 under which it was undertaken on behalf of the plaintiff that he would take out proceedings for the custody and welfare of the minor. Such proceedings were not taken out by him. Instead he was unlawfully retaining the custody of the minor. Admittedly, on the date the order dated 14/4/2000 was passed, appellant No.1 was having care of the child but after the plaintiff was enlarged on bail, appellant No.1 herself started sending the child through her husband on alternate days to the plaintiff and on 1.7.2000 the child was admittedly kept with the plaintiff, who continued to retain care of the child. In view of these disputed facts, learned Single Judge was perfectly justified in proceeding to restrain the appellants not to remove the child from the plaintiff's custody and also make it clear that this order of restraint will not prevent the appellant from taking out such proceedings as are permissible in law, for obtaining custody of the child. Obviously, it is not the case of the appellants that the plaintiff used force in taking over custody of the child. Had such been the situation, different considerations might have prevailed with the Court while deciding the application and may be that order dated 14.4.2000 would have been taken into consideration.

17. Considering the facts and circumstances, we are of the view that learned Single Judge while deciding the application exercised discretion by taking into consideration all relevant factors, Discretion exercised cannot be said to be arbitrary or perverse. The Court took into consideration the settled principles of law in the exercise of such discretion in terms of the ratio of the decision in Wander Ltd. and another v. Antox India P.Ltd. 1990 (Supp) S.C.C. 727. No interference is called for by us in this appeal, which is hereby dismissed leaving the parties to bear their respective costs.

18. Needless to add that any observation made while disposing of this appeal by us or in the application by learned Single Judge, will not come in the way of the Court dealing with the question of the custody of the minor.