Smt Gloria Chauhan @ Pinky Chauhan vs Govt Of Nct Of Delhi & Ors
2015 Latest Caselaw 8302 Del

$~55.

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       W.P.(CRL) 2142/2015

%                                      Judgment dated 3rd November, 2015

        SMT GLORIA CHAUHAN @ PINKY CHAUHAN ..... Petitioner
                     Through : Ms.Antima Bajaj, Adv. along with
                               petitioner.

                           versus

        GOVT OF NCT OF DELHI & ORS               ..... Respondents

Through : Mr.Amrit Singh and Mr.Shekhar Budakoti, Advs. for Mr.Rahul Mehra, Standing Counsel along with Inspr.Bimla Devi and SI Saurabh Kumar, P.S. Tughlak Road.

Mr.Vivek Singh and Mr.Vijay Shankar, Advs. for respondent no.4.

Respondent no.5 in person along with the girl child.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J (ORAL)

1. Present writ petition has been filed by petitioner under Article 226 of the Constitution of India for issuance of an appropriate writ in nature of habeas corpus thereby directing respondents no.1 to 5 to produce her minor daughter, Ms.Kaankshita, who is eight years of age and is in illegal custody of respondents no.4 and 5, before this Court. The petitioner also seeks a direction to protect the life of the minor daughter from

respondents no.4 and 5 and grant interim custody of the minor child to the petitioner.

2. In this case, respondent no.1 and petitioner are husband and wife, respectively. The petitioner is a Masters in Sociology and respondent no.4 is a serving Wing Commander in the Indian Air Force.

3. As per the petition, marriage between the petitioner and respondent no.4 was solemnized on 1.5.2006. Out of their wedlock, one daughter, namely, Kaankshita, was born on 5.9.2007. As per the petition, since the birth of the girl child, she has been under the care and custody of her mother (petitioner) till 12.8.2015. According to the petitioner, respondent no.4 and his family were unhappy with the birth of a female girl. The petition has also disclosed that the petitioner had taken up various projects including a sanitation project and had also worked as Capacity Building State Coordinator at Bihar State Water and Sanitation Mission under PHED through UNICEF on contract basis. A certificate in this regard has been placed on record.

4. Further according to the petitioner, on 11.8.2015 respondent no.4 persuaded the petitioner for a vacation tour to Dudhwa Sanctuary along with their daughter. On the same date, the petitioner informed her mother on „Whats App‟ that she along with her husband and daughter were going to visit Dudhwa Sanctuary. On the way, respondent no.4 informed her that since it was a long journey, they would stay overnight at Bareilly. Accordingly, the petitioner sent a message to her mother informing her that they were going to stay overnight at Regency Hotel. The petitioner was a little alarmed that they were staying in a sub-standard hotel instead of Air Force Guest House despite the fact that respondent no.4 is a serving Wing Commander in the Indian Air Force and has held plum positions including as ADC to the Governor of Bihar. On the next morning i.e.

13.8.2015 the petitioner was asked by respondent no.4 to pack up her luggage so that they could leave the hotel by 9.00 a.m. Suddenly, respondent no.4 removed the girl child from the hotel and returned with respondent no.5 and certain unknown persons, who then manhandled the petitioner and forcibly removed her to a Government Mental Hospital at Bareilly. The petitioner was given multiple injections and medicines, which caused unconsciousness and dizziness. The petitioner was also made to sign innumerable documents. The petitioner learnt that on 18.8.2015 respondent no.4 filed a divorce petition at Family Courts, Bijnor, wherein the brother of the petitioner was arrayed as legal guardian of the petitioner. Summons in the said petition were received by her brother on 1.9.2015. At the mental hospital, the petitioner was sedated thrice a day from 13.8.2015 till 22.8.2015. On 22.8.2015, the petitioner managed to make phone calls to her cousin and her Godmother for help. The brothers of the petitioner managed to reach the Government Hospital at Bareilly, from Navi Mumbai and rescued her. Thereafter the petitioner reached Mumbai. The petitioner sent an email to her lawyer on 23.8.2015 and also reported the matter to Police Station Nabi Mumbai. The petitioner thereafter also made a complaint to Police Station Tughlak Road, New Delhi, on 27.8.2015. The petitioner alleges that respondent no.4 has plotted a plan to kill her by falsely admitting her in a Government Mental Hospital at Bareilly by sedating her through medicines and injections thrice a day. The petitioner has prayed for production of her minor daughter before this Court and handing over her custody to her from the illegal clutches of respondents no.4 and 5, as the petitioner apprehends that there is a danger to the life of her minor daughter as well.

5. Learned counsel for the petitioner submits that the custody of the minor

daughter of petitioner, who has been produced in Court today, should be handed over to the petitioner-mother as the custody of the minor daughter was illegally removed by the respondent no.4 from the custody of the petitioner and by admitting the petitioner in a mental hospital in Bareilly. Counsel further submits that the sequence of events and conduct of respondent no.4 would show that it was a well planed operation of respondent no.4 firstly by misleading the petitioner that they would be going for a vacation, secondly, tricking her and admitting her into a Government Mental Hospital in Bareilly, and, thirdly, simultaneously filing a divorce petition in a Court at Bijnor, a court which patently lacks jurisdiction, as the parties admittedly resided within the territorial jurisdiction of this Court and, thus, to harass the petitioner a petition for grant of divorce was filed at Bijnor. Counsel also contends that it was highly unusual for a senior officer of Indian Air Force to admit his wife in a mental hospital in Bareilly when all the privileges were available in the RR Hospital in Delhi where the parties were residing and that too in a general ward which is evident from a communication addressed to the Chief Judicial Magistrate, North-Eastern Railway Bareilly, dated 20.8.2015 by the respondent no.4. Counsel further contends that the conduct of respondent no.4 would show that he had no regard for the welfare of their only child, who was removed from Air Force Jubilee School, Subroto Park, and admitted to a School in Bijnor.

6. Learned counsel for respondent no.4 has submitted that being a dutiful husband and looking at the mental condition of his wife and since they were visiting Bareilly she was admitted at Bareilly Mental Hospital. Counsel further submits that the divorce petition was filed at Bijnor as the marriage had taken place at Bijnor and upon decree received by him that such a petition would be maintainable in either a place where the parties

last resided or where the marriage took place between the parties.

7. Learned counsel for respondent no.4 submits that the certificate filed by the petitioner along with the petition showing that she is normal can be of no aid and benefit to her as her past history would show that there is always a potential risk and in case the custody of the child is handed over to the petitioner, it would not serve the benefit of the child and, thus, the respondent was forced to take the custody of the child and also to get her admitted at a school at Bijnor. Reliance is placed by the counsel on the annexure filed along with the divorce petition filed by respondent no.4 to show that abusive language was used by the petitioner in the presence of the child. It is, thus, contended that the petitioner would have a poor impact on the impressionable age of the child at this stage.

8. We have heard learned counsel for the parties, considered their rival submissions and also gone through the pleadings. On the very first date of hearing i.e. 28.9.2015, the petitioner and respondent no.4 were present in court along with their counsel. We had taken up the matter in the Chamber. The following order was passed on 28.9.2015:

"By the present writ petition, the petitioner seeks a writ of habeas corpus for production of her minor daughter, who is stated to be eight years of age.

As per the petition, petitioner along with her husband had gone for a vacation when she was forcibly admitted in a mental hospital at Bareli on 13.8.2013. Thereafter her daughter was forcibly removed by respondents no.4 and 5 from the custody of the petitioner. The petitioner managed to escape from the hospital with the help of her brothers. After the petitioner was admitted to the mental hospital a petition for grant of divorce has been filed by respondent no.4 in the Family Courts at Bijnor on 18.8.2015. We are informed by counsel for the petitioner that the child has also been admitted to a school at Bijnor.

Mr.Mehra, learned Standing Counsel for respondents no.1 to 3, and Mr.Vivek Singh, learned counsel for respondents no.4 and 5, enter appearance on an advance copy and accept notice. Both, the petitioner (wife) and respondent no.4 (husband), are also present in Court. A copy of status report has been handed over by Mr.Mehra in Court, which is seen and returned to Mr.Mehra to enable him to file the same in the Registry, after serving an advance copy of the same to counsel for other parties, if not already supplied.

We find it unusual that respondent no.4, who is the husband of the petitioner and a Wing Commander in the Indian Air Force, stationed at Delhi, would have to admit his wife at a hospital in Bareli. We also find it unusual that the child would be removed from an Air Force School at Subroto Park, New Delhi, to a school at Bijnor. We also find it unusual for the petitioner to file a divorce petition at Bijnor whereas the parties last resided at Delhi.

Be that as it may, we direct respondent no.4, who is present in Court and is also represented through his counsel, to produce the child on the next date of hearing. Parties are also directed to remain present in Court on the next date of hearing.

List on 30.9.2015 at 4.00 p.m."

9. The matter was adjourned to 30.9.2015, 6.10.2015, 14.10.2015, 20.10.2015 and 2.11.2015. On 30.9.2015 the child was produced in Court, however, the matter was adjourned as the counter affidavit filed by respondent no.4 was not on record. On 6.10.2015 it was adjourned as the arguing counsel for the petitioner was not available. On 14.10.2015 it was observed that the child was not produced in Court and the matter was adjourned to 20.10.2015. On 20.10.2015, counsel for respondent no.4 had sought time to file reply to the application filed by petitioner seeking permission of the Court to place additional documents on record. On 2.11.2015 again the matter was adjourned for today at the request of counsel for respondent no.4.

10.Counter affidavit has been filed by respondent no.4. According to respondent no.4, the present petition is misconceived. The main thrust of arguments of learned counsel for respondent no.4 is that the petitioner is a chronic patient of paranoid Schizophrenia for the past eight to nine years. The petitioner has a history of violent and abnormal behaviour, suicidal tendency, slitting her writs, harming others, becoming violent, beating respondent no.4 and their daughter, other family members, domestic helps, and she has been under treatment from time to time. The action of respondent no.4 is justified on the ground that at the overnight stay of the petitioner and respondent no.4, keeping in view the mental behaviour of the petitioner, respondent no.4, being a dutiful husband, removed the petitioner to the mental hospital so that she could be given medical attention and the child was sent to respondent‟s no.4 parents where she has been staying so that there is no break in the education of the child. Attention of the Court is also drawn to a document, which is filed along with the counter affidavit, to show that in the year 2007 the petitioner had visited the Army hospital, Delhi Cantt., and her condition was reviewed in Psychiatric OPD. The observations made by Classified Specialist (Psy.) reads as under:

"Risks of drugs use in pregnancy discussed with husband and patient. In view of two week almost total insomnia, constant bickering and history of slitting wrist, last week ante depression are an inescapable need."

11. In the counter affidavit, it has further been stated that on account of violent behaviour of the petitioner, one of the garden workers was forced to make a complaint on 25.10.2011 wherein she had alleged that she had been assaulted by the petitioner with a sharp plate. Reliance is also placed

in the counter affidavit on a document dated 13.8.2015 of OPD of mental Hospital, Bareilly, showing admission of the petitioner in the Hospital. In the said document, the past history of the petitioner has also been recorded.

12. We find the conduct of respondent no.4 to be highly unusual and absolutely unbecoming of a senior Air Force officer. The sequence of events which unfolded and as has been noted hereinabove would show that the conduct of respondent no.4 is not above board. Although copies of medical record of the petitioner have been placed on record to show that the petitioner is suffering from a mental disorder yet we find that the first document pertains to the year 2007 i.e. prior to the birth of the child. This document would show that the diagnosis in column no.23 was Jaundice and in the Column of details it has been recorded that the patient was stressed about relationship with in-laws and husband‟s attitude towards her. It has also been stated that she was agitated sometimes, low and depressed and also suicidal. There is not a single document, which has been filed by respondent no.4, to show that after 2007 upto 12.8.2015 the petitioner was either on medicine or taking any treatment from a mental hospital or visiting any Psychiatric. To the contrary the petitioner has placed on record documents to show that she was working in the year 2013 on contract basis, she had performed all her duties to the satisfaction of the employer and she had also participated in the Farewell Functions, which is evident from a copy of the News Item dated 9.10.2013 from the Times of India, relevant portion of which reads as under:

"Governor ADC Kavi Raj Chauhan's gang of friends recently organized a farewell party in his honour, ahead of his transfer to Delhi. And even though it was a party organized by Chauhan's friends, we spotted him only playing the perfect host.

While Chauhan looked after the arrangements, his wife Pinky was busy welcoming the guests."

13. More so, the petitioner continued to perform her duties, if not as a wife on account of marital discord, but at least as a mother of the child, as she stayed in the same house along with the child upto 12.8.2015.

14. The sequence of events in our view, are rather disturbing for the reasons that the same very mental hospital, which has so called treated the petitioner has given a Mental Test Report dated 7.10.2015, wherein it has been stated that at the present no sign of mental illness has been found upon the petitioner.

15. We may also notice that the case history noted by the Mental hospital Bareilly reads as under:

"MENTAL HOSPITAL BAREILLY

OUT PATIENT CASE-SHEET

Sl No. 36219 Dated 13.8.15.

1-Name in full Pinki Chauhan 2-W/of Kavi Raj Chauhan 3-Age 41 yr. 4- Sex: Female 5-Religion ......... (a) Caste ............. (b) Sub Caste ...... 6- Marital Status : M M/W/D/NK/O Married 7-Name, relation and address for the information Husband of Pt. H.n. 15, Civil Lain-I, AnO. Tehsil Bijnore Distt. Bijnore,

8. Present address in Full ...................................................... .............................. 9 - Duration of Stay ............................. 10-Permanent Home Address ................................................ ......................................................................................... 11:Education ........... 12. Occupation ...... 13-Income .............. 14-Worked upto ........... Year ......... months ...... days .............. 15-Income of the guardian, land and property

Business etc (specify in detail) : ...........................................

                                           HISTORY

               1-Chief complaints and their duration


               Informant = Husband            -        Over talkative
                                              -        Stubborn
                                              -        Over demanding
                                              -        Attention seeking
                                              -         Sleep
                                              -        Irritable."

16. We are also surprised that the case history, which was given by the husband, which shows over talkative, stubborn, over demanding, attention seeker, sleep and irritable, would actually require admission of such a person. The manner in which the petitioner has been admitted to the hospital, the manner in which the custody of the child has been removed from her and the manner in which respondent on.4 has filed a divorce petition in the Courts at Bijnor, prima facie, gives an impression that respondent no.4 in a pre-planned manner had removed the custody of the child from her mother-petitioner herein in an illegal manner.

17. It may be noticed that the petitioner has also made a complaint to the Police Station Tughlak Road in which we are told that due to the influence of the respondent no.4 no action is being taken. We direct SHO, Police Station, Tughlak Road, to investigate into the matter.

18. We may also note that respondent no.4 did not act in the benefit of the child as she was removed from a public school at the National Capital Territory of Delhi and admitted to a school in Bijnor. Respondent no.4 also showed scant regard to the welfare and emotions of the child. The

child was displaced from her mother, her friends and neighbours in the locality and physically removed from Delhi to Bijnor. This is also extremely unusual and strange that respondent no.4 while posted at Delhi and residing at Maulana Azad Road in Delhi has removed the custody of the child from the mother and handed over her to the grandparents, which are again the canons of the well settled law with regard to the custody of a child.

19. It has been held in the case of Vikram Vir Vohra Vs. Shalini Bhalla, reported at (2010) 4 SCC 409:

"12. In a matter relating to the custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.

13. In Rosy Jacob v. Jacob A. Chakramakkal1 a three-Judge Bench of this Court held that all orders relating to the custody of minors were considered to be temporary orders. The learned Judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.

14. The aforesaid principle has again been followed in Dhanwanti Joshi v. Madhav Unde2.

15. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890 these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two

(1973) 1 SCC 840

(1998) 1 SCC 112

things are common; the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a straitjacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.

16. In this connection, the principles laid down by this Court in Gaurav Nagpal v. Sumedha Nagpal3 are very pertinent. Those principles in paras 42 and 43 are set out below: (SCC p. 55)

"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the „welfare of the child‟ and not rights of the parents under a statute for the time being in force."

That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the court‟s discretion in custody order. (See Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka4, AIR p. 1289, para 17.)"

20. Having regard to the facts of this case, we direct respondent no.4 to hand over the custody of the child to the petitioner forthwith. However, we make it clear that it would be open for respondent no.4 to seek such remedy as may be available to him in accordance with law and seek custody of the child should the Family Court reach such a conclusion.

21. Accordingly, present petition is disposed of in above terms. We make it

(2009) 1 SCC 42

(1982) 2 SCC 544

clear that in case any petition is filed before the family Court, the same will be decided on merits unaffected by the orders passed by this Court today.

22. Let a copy of this order be sent to Commanding Officer of respondent no.4.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J rd November 3 , 2015 msr