Punjab-Haryana High Court
Manisha Maheshwari vs State Of Haryana And Others on 11 April, 2023
Neutral Citation No:=2023:PHHC:049627
CRWP-822-2021 -1- 2023:PHHC:049627
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRWP-822-2021 (O & M)
Reserved on: 17.03.2023
Pronounced on: 11.04.2023
Manisha Maheshwari .....Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Argued by: Mr. Bawa Karanveer, Advocate
for Mr. Karunesh Kaushal, Advocate
for the petitioner.
Mr. Pradeep Parkash Chahar, DAG, Haryana.
Mr. P.S.Jammu, Advocate
for respondent No. 4.
Ms. Jannat Duhan, Advocate
for Mr. Sartaj Singh Narula, Advocate
for respondents No. 5 and 6.
****
SURESHWAR THAKUR, J.
Factual Background
1. The petitioner is the biological mother of the minor child
Santosh @ Archit. Undisputedly, at the instant moment, the above
minor child is in the custody of co-respondents No. 5 and 6, who
became impleaded, as such, through an order made by this Court, on
22.02.2021, upon, CRM-W-140-2021.
2. The facts necessary which relate(s) to the assumption(s) of
custody of the minor child Santosh @ Archit are that, co-respondents
No. 5 and 6 assumed the custody of the above minor child, on
May/June,2018 from one Anupam Muni, who is arrayed as co-respondent
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No. 4. The petitioner was at the relevant stage a disciple of co-
respondent No. 4, and, since she had divorced her previous husband,
therefore, co-respondent No. 4 persuaded her to marry his disciple
Jagdish. The said marriage was solemnized on 10.02.2018. At the time
of the petitioner solemnizing second marriage with Jagdish Rai, thus,
she through Annexure R-4/1, handed over the custody of her minor
child, to co-respondent No. 4. Annexure R-4/1 is claimed by co-
respondent No. 4 to be signatured by the present petitioner. However,
in the rejoinder filed by the petitioner to the reply of co-respondent No.
4, she submits that the said document is a false, and a forged document.
She further denies the contents of Annexure R-4/1 being written by her
or the same being signed by her. However, the said denial is left open to
be made before the learned civil Court concerned, whereto, the parties
have been relegated to make a recourse rather for claiming the ultimate/
final custody of the minor child. The contents of Annexure R-4/1 are
extracted hereinafter.
" I, Manisha, am resident of Nepal. Gurdev Sh.
Anupam Muni, got my marriage held with Jagga Jagdish
resident of Kalanwali. Due to this happiness, I give my
son, Santosh to Gurdev Shri Anupam Muni and I am doing
this work without any pressure. Now, I have no
responsibility on it. Now, I have no right on him. Gurudev
Shri Anupam Muni Ji is the owner of the same and after
making him his disciple (son) and by bringing up him and
by giving Dharam Sanskar to him, he will make him Jain
Sant. Sd/- Manisha
Sd/- Anupam Muni.
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3. Moreover, further the delivery of interim custody to co-
respondents No. 5 and 6, has been granted by this Court, but after
interacting with the minor child, and, thereby this Court concluding that
the minor child is happy to reside in the company of co-respondents
No. 5 and 6.
4. Co-respondents No. 5 and 6 plead, that since they were
also disciples of co-respondent No. 4, and, since the present petitioner,
had surrendered the minor child to co-respondent No. 4, through
Annexure R-4/1. Thus, when there was none to take care of the minor
child besides when the health of the minor child was frail. Resultantly
co-respondent No. 4 entrusted the custody of the minor child to them in
about May/June, 2018. They further plead that since then the minor
child is being given the best care by them. Even the best medical care,
is pleaded to be provided to the minor child, but as revealed by
Annexure A-2, Annexure whereof becomes appended with their
impleadment application. Moreover, Annexures R-5/3 and R-5/4, as
appended with their reply, do suggest, that the said child has been
admitted by them in Mango Blossoms Kids School, Begu Road, Sirsa,
Haryana.
4. Co-respondent No. 4 also furnished his reply to the petition
and though in the preliminary objections, he had claimed that the
petition is mis-constituted and requires dismissal. Moreover, though he
supports the above manner of assumption of custody of the minor child
by co-respondents No. 5 and 6. However, he has made speakings
thereins, that he had merely handed over the temporary custody of the
minor child to co-respondents No. 5 and 6, and but with a promise
made by them, to him, that they would hand over his custody to him.
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However, since the said request was not acceded to, by co-respondents
No. 5 and 6, yet resultantly, he appears to endorse the makings of
Annexure R-4/1. Though, obviously also he does not deny the factum
of his handing over the custody of the minor child to co-respondents
No. 5 and 6, but he yet speaks about his merely handing over of the
temporary custody of the said minor child to co-respondents No. 5 and
6, but with a promise by them to him, to return the minor child to him,
yet the promise becoming breached. He further denies that the best
education is being purveyed to the said minor child by co-respondents
No. 5 and 6, and, alleges that the school certificate has been forged.
5. When the matter was listed before this Court, on
27.01.2021, the hereinafter extracted directions were made, upon, the
respondent concerned, to ensure the production of the minor child
before this Court, on 01.02.2021.
"........Let steps be taken to recover the son of the
petitioner and status report be filed before the next date of
hearing.
List on 01.02.2021."
6. On 01.02.2021 when the petition was re-listed before this
Court, then the hereinafter extracted orders were made thereons.
"In compliance of order dated 27.01.2021, the
alleged detenue, namely, Santosh @ Archit, a nine years
old child has been recovered and produced by Mr. Nitish
Aggarwal, Assistant Commissioner of Police, Kalanwali,
District Sirsa. The Officer has informed the Court that he
has made a preliminary enquiry and interacted with the
child, who has told him that he wants to stay with Mr.
Bhim Sain Singla from where he was recovered.
In order to satisfy myself, I have personally
interacted with the child. The child comes across as very
confident for his age. He has expressed a desire to stay
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with Mr. Bhim Sain Singla and his wife, whom he calls as
his parents.
Considering the wish of the child and the fact that
the welfare of the child is of paramount consideration, his
custody is ordered to be handed back to Mr. Bhim Sain
Singla, subject to further orders of this Court.
Let an affidavit on behalf of respondents No.1 to 3
be filed before the next date of hearing.
Notice be issued to respondent No.4.
On a request received, Mr. Bhim Sain Singla and his
wife namely Manju Singla, have been permitted to join the
video conferencing. They have informed the Court that
they have filed an application for being impleaded as
respondents No.5 and 6.
List on 22.02.2021."
Handing over the interim custody through an order made by this
Court on 01.02.2021.
7. A reading of the above extracted orders, does reveal, that
this Court had made references to the paramount consideration or the
sine qua none, rather governing the handing over the interim custody to
the claimants concerned, inasmuch as, it giving the befitting reverence
to the happiness and the best care givings to the minor child besides its
ascertaining the wish of the minor child. The above inference becomes
embeded in the factum of this Court, but graphically recording in the
said order, that it interacting with the minor child, who is spoken
therein to be very confident for his age, and, who also is further spoken
in the said order, to yet express a desire to stay with Mr.Bhim Sain
Singla and his wife, whom he called as his parents. Thus, since only
after the above satisfaction being recorded by this Court, with respect to
the paramount consideration of the welfare, and, best care givings to the
child, that this Court had not handed over the interim custody of the
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minor child to the petitioner, but rather had handed over the interim
custody of the minor child to co-respondents No. 5 and 6.
8. Consequently, the burning issue relates to the confirmation
of the order made by this Court on 01.02.2021, whereby, this Court had
handed over the interim custody of the minor child, to co-respondents
No. 5 and 6. Apparently since then uptil now, there is no material
existing on the record but suggestive that there has been any dereliction
on the part of co-respondents No. 5 and 6, to provide the omnibus
optimum care givings to the minor child, nor also when there is no
material suggestive, that the minor child has expressed his
unwillingness, to yet continue to stay in the company of co-respondents
No. 5 and 6, whom he, upon, his interacting with this Court on
01.02.2021, had called them as his parents. Significantly also when
there is a report, on record, of the Child Welfare Committee, Sirsa
contents whereof are extracted hereinafter.
Action taken report of Child Welfare Committee.
The meeting held today on 31.01.2021 completed in the
presence of Chairperson Anita Kumari and member Sonia
Mittal.
Today, SI Rampal Singh informed the CWC on
phone about child Santosh @ Archit, aged 9 years, diary
No.216, PO dated 28.01.2021, Mandi Kalanwali. The
child had been recovered from Jain Muni-Anupam Muni.
but, since Anupam Muni does not come by sitting on any
vehicle. Therefore, soon after getting the information on
phone during noon hours, CWC Chairman Anita Kumari
and member Sonia Mittal reached to Kalanwali at 01.30
P.M. At there, the CWC made discussion with child
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Santosh @ Archit, Manisha (biological mother of child),
Manisha's husband Jagdish, Anupam Muni and the
present family members of the child. According to child
Santosh @ Archit, he has given all satisfactory replies
about his present mother Manju Singla and father Bhim
Singla. While behaving very polity with the child, he has
been asked about the upbringing, behavior and education
being provided by his present parents. At that, the child
expressed his satisfaction towards them. Further, the child
was expressing his full affection and happiness towards
his parents. The child had completely forgotten his past
time. Child Santosh @ Archit was willing to live with his
present family. On making discussion with the biological
mother of child, Jain muni and other members of family,
the matter has not been found of selling of child. Further,
no legal responsibility has been given to anyone with
regard to the custody of child. On next day, the VC of child
was fixed at High Court and Anupam Jain Muni had
himself handed over the child to the police officials....."
Sd/- Anita Kumari Sd/- Sonia Mittal
Chairperson Member
9. Thus, cumulatively and prima facie, given the surrendering
of the custody of the minor child, as revealed by Annexure R-4/1 by the
petitioner to co-respondent No. 4, who thereafter, handed over, as
expressed by him, merely a temporary custody of the minor child to co-
respondents No. 5 and 6, but on a promise made by them to him, that
they shall on his request, return the said custody to him, yet the said
promise becoming breached. Thus, thereby the purportedly abandoned
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minor child did, prima facie, become a child who was in need of care
and protection. Resultantly the report of the Child Welfare Committee,
Sirsa, contents whereof are extracted above, assume a dire importance.
Since in terms of Section 31 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short 'the Act'), provisions
whereof are extracted hereinafter, rather the report (supra), does make
expressions therein, that the minor child was happily residing in the
company of co-respondents No.5 and 6. Thus, may be the said extracted
contents, do support the handing over the temporary custody of minor
child to co-respondents No. 5 and 6, and, also does support the
hereafter drawn conclusion that the said handing over of the temporary
custody of the minor child is but to be confirmed.
10. Be that as it may, though a reading of the above extracted
contents, do also manifest, that the parting of the custody of the minor
child by co-respondent No. 4 to co-respondents No. 5 and 6, was not
made on any monetary consideration, but yet since the instant habeas
corpus writ petition, was filed before this Court, and directions were
made to produce the minor child in Court. Therefore, the Child Welfare
Committee, Sirsa did not make any declaration in terms of Section 31
of 'the Act', qua the child being in need of care and protection.
Nonetheless, since this Court on 01.02.2021, but for the self
explanatory reasons, as made thereins, had handed over the temporary
custody of the minor child to co-respondents No. 5 and 6. Thus, prima
facie, it is to be concluded, that this Court inferred that the child, is in
need of care and protection, and that such care and protection, can be
provided to him, only by co-respondents No. 5 and 6, both of whom are
candidly expressed in the orders made by this Court on 01.02.2021, to
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be spoken by the minor child to be his parents.
"31. Production before Committee. (1) Any child in need
of care and protection may be produced before the
Committee by any of the following persons, namely:-- (i)
any police officer or special juvenile police unit or a
designated Child Welfare Police Officer or any officer of
District Child Protection Unit or inspector appointed
under any labour law for the time being in force; (ii) any
public servant; (iii) Childline Services or any voluntary or
non-governmental organisation or any agency as may be
recognised by the State Government; (iv) Child Welfare
Officer or probation officer; (v) any social worker or a
public spirited citizen; (vi) by the child himself; or (vii)
any nurse, doctor or management of a nursing home,
hospital or maternity home: Provided that the child shall
be produced before the Committee without any loss of time
but within a period of twenty-four hours excluding the time
necessary for the journey. (2) The State Government may
make rules consistent with this Act, to provide for the
manner of submitting the report to the Committee and the
manner of sending and entrusting the child to children's
home or fit facility or fit person, as the case may be,
during the period of the inquiry."
Submissions of the learned counsel for the petitioner.
11. 1) The learned counsel for the petitioner, has placed
reliance upon the judgment rendered by the Hon'ble Apex Court, in
case titled as Tejaswini Gaud and others Vs. Shekhar Jagdish
Prasad Tewari and others (SC) : 2019(3) R.C.R.(Civil) 104 to which
SLP (Crl.) No. 1675 of 2019 became assigned, and thereby submits that
the petitioner is entitled to the restoration of the custody of her
biological child from co-respondents No. 5 and 6, whom he speaks to
be not his legal or natural guardians.
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2) Moreover, he also submits that the petitioner, who is
the biological mother of the minor child, and whom he submits to have
never abandoned the child, is entitled to the custody of her biological
child, as she alone can impart parental love and affection to him, and,
which bestowments he submits are imperative for the grooming of his
personality.
However, for the reasons to be assigned hereinafter this Court does
not agree with the above submissions.
12. The reason for rejecting the above submission is firmly
embeded in the hereinafter counts.
1) Though there being a denial on behalf of the
petitioner qua hers signaturing Annexure R-4/1, and or, she alleges that
Annexure R-4/1 is a false and forged document, prepared by co-
respondent No. 4. However, the said denial is left open to be made
before the learned civil Court concerned, whereto, the parties have been
relegated to make a recourse for claiming the ultimate/final custody of
the minor child.
2) Moreover, yet since co-respondent No. 4, does not
deny the makings of Annexure R-4/1, as such, the minor child is
deemed to be purportedly abandoned or surrendered by the petitioner,
obviously to co-respondent No. 4, who thereafter did temporarily hand
over the custody of the minor child to co-respondents No. 5 and 6.
Though it is contended by co-respondent No. 4, that such handing over
by him, qua the custody of the minor child to co-respondents No. 5 and
6, was under a promise made to him, by the said respondents, that on
his asking for returning the custody of the minor child to him, they shall
do so, but yet the said promise becoming breached.
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3) In addition also, though co-respondent No. 4 alleges
that the best education is not being provided to the minor child, nor the
best medical care is being provided to him by the said respondents
despite his being frail in health. However, since co-respondents No. 5
and 6 alongwith their impleadment application have appended
Annexures A-2 to A-4, as proof in respect of the best medical care
being provided to the minor child, besides when also, in respect of their
providing the best education to the minor child, rather prima facie
sound proof becomes adduced. Thus, prima facie, sanctity is to be
assigned to the above Annexures.
4) Moreover, when on the production of the minor
child before this Court, on 01.02.2021, the above extracted inferences
were drawn, thus, leading this Court to hand over the temporary
custody of minor child to co-respondents No. 5 and 6. Consequently,
this Court does not have any occassion to grant the custody of the
minor child to the petitioner, especially when there is no further
evidence existing at this stage, but suggestive that co-respondents No. 5
and 6 have been derelicting, in performing their duties purportedly as
parents rather towards the minor child. Further, the expressions made
by the minor child on 01.02.2021, about his being happy in the
company of co-respondents No. 5 and 6, besides when the said
expressions are endorsed by the report of the Child Welfare Committee,
Sirsa. Therefore, at this stage, this Court, rather becomes constrained to
confirm the order made earlier by this Court, on 01.02.2021, whereby
this Court had handed over the interim custody of the biological child
of the petitioner rather to co-respondents No. 5 and 6.
13. The reason for making the above conclusion, is firmly
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rooted in the factum, that in verdict (supra), clear underlinings have
been made, that the welfare and upkeep, and, the necessity of purveying
the best care givings, to the minor child are but the imperative or
paramount consideration, for determining the rival contestants claim,
for theirs' assuming either the interim or the ultimate custody of the
minor child. Moreover, since in paragraph 34 of the verdict (supra),
para whereof, becomes extracted hereinafter, it has been categorically
spelt, that unless there is proof that the biological parents, had
abandoned the child or had deprived the child of his right, to love and
affection, thereupon, the biological parents of the minor child cannot be
deprived of the custody of the said child.
"34. The welfare of the child has to be determined owing
to the facts and circumstances of each case and the court
cannot take a pedantic approach. In the present case, the
first respondent has neither abandoned the child nor has
deprived the child of a right to his love and affection. The
circumstances were such that due to illness of the parents,
the appellants had to take care of the child for some time.
Merely because, the appellants being the relatives took
care of the child for some time, they cannot retain the
custody of the child. It is not the case of the appellants that
the first respondent is unfit to take care of the child except
contending that he has no female support to take care of
the child. The first respondent is fully recovered from his
illness and is now healthy and having the support of his
mother and is able to take care of the child."
14. Therefore, the ratio decidendi of the verdict (supra), is that,
if evidence prima facie surges forth but demonstrative qua the minor
child becoming abandoned or becoming deprived of love and affection,
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by his biological parents, and, or obviously, upon, interactions being
made by the Court with the minor child, he reveals his unwillingness to
join the company of his bilogical parents, rather expresses his desire to
stay in the company of those persons, who on his purported
abandonment have assumed custody over him. Thus, in that situation
may be, the biological parents becoming not entitled to receive the
interim custody of the minor child.
15. The foundational facts necessitating the application of
ratio decidendi, as made in the verdict (supra), are but not only pleaded
by co-respondents No.5 and 6, but also when prima facie evidence,
rather to support the requisite foundational facts hence also do appear.
Thus, the foundational facts of the instant case, and, also the prima
facie evidence in support of such foundational facts, do require, the
applications thereons, of the above underlinings, as, made by the
Hon'ble Apex Court in judgment (supra). The foundational facts
relating to the prima facie purported abandonment of the minor child by
the petitioner, who is his biological mother, to co-respondent No. 4,
who thereafter handed over the custody of the minor child, to co-
respondents No. 5 and 6, is but, borne out from the reply furnished to
the petition by co-respondent No. 4. Resultantly, at this stage, prima
facie, the petitioner is not entitled to the interim custody of the minor
child, rather the co-respondets No. 5 and 6, who are jointly expressed
by the Child Welfare Committee, Sirsa and, also by this Court, to give
the maximum care givings to the minor child, who but has also
accepted them to be his parents. Thus, when the wish and aspirations of
the child, is but, the paramount consideration for determining the issue
of the custody of the minor child, thereupon the said expressed
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aspiration(s) is but to be revered. Preimminently when the said
pramount consideration, may countervail the claim of the biological
parent to assume the temporary custody over the minor child.
16. However, yet in terms of the mandates/judgments
carried/pronounced in (1) Manju Tiwari versus Dr. Rajendra Tiwari,
(SC) AIR 1990 SC 1156, (2) Syed Saleemuddin Versus Dr. Rukhsana
2001(2) RCR (Criminal) 591, (3) Roxan Sharma versus Arun
Sharma (SC) 2015(2) RCR (Civil) 93, (4) Eugenia Archetti Abdullah
versus State of Kerala 2005(1) RCR (Civil) 259, (5) Surabhai
Ravikumar Minawala versus State of Gujarat 2005(2) RCR (Civil)
822, (6) CRWP No. 68 of 2017 titled as Kirandeep Kaur versus State
of Punjab and others' decided on 7.3.2017, and, (7) Gippy Arora
versus State of Punjab and others 2012(4) RCR (Civil) 397 (PHHC)
and which but cast therein an expostulation of law that restoration of
interim custody of the minor child to the ablest person, is yet to last
only till a decision with respect to his/her ultimate custody rather is
made by the Family Court concerned.
17. Thus, the handing over the interim custody of the minor
child but after confirming the order made by this Court on 01.02.2021,
is made subject to the determination of the ultimate custody of the
minor child rather being made by the Courts or authority hence holding
the able vested jurisdiction to do so.
18. Disposed of with the above observations.
19. Nothing in this order shall be treated as an expression of
any opinion on the merits of the case, so as to bind or influence the
Courts or authority rather holding the able vested jurisdiction to make
an adjudication on the relevant suit or petition, if any, so filed hereafter
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by the petitioner.
(SURESHWAR THAKUR)
JUDGE
11.04.2023
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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