Punjab-Haryana High Court
Heena Verma vs State Of Punjab And Ors on 25 October, 2024
Neutral Citation No:=2024:PHHC:139401
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
264
CRWP-2244-20242024 (O&M)
Date of decision: 25.10.2024
.10.2024
Heena Khan ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Jasjit Singh Saini, Advocate
for the petitioner.
Mr. A. S. Samra, AAG, Punjab.
Ms. Promila Nain, Advocate
for respondent No. 4.
MANISHA BATRA, J. (Oral)
1. The present petition has been filed by the petitioner under Article
226 of the Constitution of India
Indi making prayer for issuance of a writ in the
nature of Habeas Corpus directing the officials respondents to get the alleged
detenue, who is son of the petitioner, released from the illegal custody of
respondent No. 4.
2. Brief facts of the case relevant for the purpose of disposal of the
present petition are that the marriage of the petitioner was solemnized with
respondent No. 4-Karanvir Singh on 09.11.2016 and one male child
ld namely
Arman Singh (alleged detenue) was born out of the wedlock on 30.04.2018.
30.04.2018 It
is submitted that the petitioner is a well educated woman holding a Master's
degree in Physical Education. After her marriage, she came to know that
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respondent No. 4 had studied only upto higher secondary. He suffered
paralysis attack after five months of marriage, which affected the left side of
his face. She also came to know that he was addicted to synthetic drugs. He
was even lodged in a rehabilitation centre before and after the marriage.
However, still he did not stop consuming drugs. He also used to quarrel with
the petitioner on trivial issues. The petitioner, on being harassed by him, had
even got registered an FIR bearing No. 78 date
dated
d 25.09.2023, under Sections
323, 341, 354 and 34 of IPC at Police Station Naya Gaon, Mohali against
respondent No. 4 and some other persons. It is her claim that subsequently,
she was ousted from her matrimonial house and was not even allowed to meet
her child.. The petitioner is stated to be residing separately from respondent
No. 4 and her child and respondent No. 4 has filed a divorce petition against
her. She has, thus, prayed for issuance of an appropriate writ directing the
official respondents to get her child released from respondent No. 4, who is
his father.
3. Learned counsel for the petitioner has argued that the petitioner,
being mother of the child, is legally entitled to get his custody. The child has
been forcefully detained by respondent No
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 and others :
2021 (3) RCR (Civil) 451 to submit that a habeas corpus writ petition is
maintainable for seeking custody of a child, who is illegally detained by
someone. With regard to allegations levelled by respondent No. 4 that the
petitioner is having adulterous relation with aforesaid Sukhpreet Singh Saini
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and she is not capable of maintaining the child, learned counsel for the
petitioner, while controverting these allegations, has submitted that even if it
is believed for the sake of arguments that she is in ext
extramarital
ramarital affair with
aforesaid person, it is well established law that any adulterous relationship or
extramarital affair of either spouse cannot be the sole determining factor to
deny him/her the custody of a child, unless it is proved that the adulterous
adulterou
relationship in itself is pernicious/detrimental/injurious to the welfare of the
child,, which is not so in the present case.
case Reliance in this regard is also placed
upon Vineet Gupta vs. Mukta Aggarwal : 2024 NCDHC 782
782.. While
submitting that the petitioner, being natural mother is legally entitled to get
the custody of her son, it is urged that the petition deserves to be allowed.
4. Respondent No. 4 has filed reply controverting the pleas taken in
the petition. It is submitted that he is the nat
natural
ural parent of the child, who is his
son and,, hence, the custody of the child with him cannot be termed as illegal.
He has also raised preliminary objection as to the maintainability of the
present petition by submitting that the appropriate remedy for the petitioner
would be to file a petition under the provisions of Guardians and Wards Act,
1890 to seek custody of the child and not to file a petition before this Court
seeking issuance of a writ of Habeas Corpus for that purpose. While denying
the allegations
allegations as levelled by the petitioner, it is submitted that the petitioner
had left her matrimonial home on 20.09.2023 and since then she had never
tried to meet the child. In fact, the petitioner was having extra marital love
affair with one Sukhpreet Singh Saini
S and when the respondent No. 4 objected
to the same, she threatened to involve him in some false case through
Sukhpreet Singh Saini. Respondent No. 4 has placed on record some
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photographs of the petitioner, wherein she is shown to be in very intimate
position with aforesaid Sukhpreet Singh Saini. It is further submitted that he is
maintaining the child and is bearing all of his expenses to the best of his
capacity and in case the custody of the child is given to the petitioner, the
same will not be in the
the welfare of the child. Hence, it is urged that the petition
is liable to be dismissed.
5. I have heard learned counsel for the parties at considerable length
and have also gone through the record carefully.
6. This is an admitted position that the petitioner was married to
respondent No. 4-Karanvir Singh on 09.11.2016 and they were blessed with a
son, namely Arman Singh, who being born on 30.04.2018 is of the age of 06
years, 05 months and 25 days as on today. The
he claim of the petitioner is that
respondent No. 4 was a drug addict and used to misbehave and mistreat her
and had ousted her from the matrimonial house, while keeping the custody of
the minor child with him. She has also alleged that since respondent No.. 4 is a
drug addict, he along with respondents No. 5 and 66,, who are his brother and
sister-in-law,
law, is not able to take care of the minor child.
7. No doubt, this Court while dealing with a petition for issuance of
a writ of habeas corpus with regard to custody of a minor child may direct
return of the child or decline to change the custody of the child keeping in
mind all the attending facts and circumstances
circumstances. However, such decision must
depend on the totality of the facts and circumstance
circumstances of each case brought
before the Court. A writ of habeas corpus in child custody matters can be
invoked only in those cases where the person having th
thee child is not entitled to
his/her
her legal custody. In child custody matters remedy lies only under
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Guardianship
nship and Wards Act and it cannot be bypassed by filing a habeas
corpus petition unless the corpus of the child is in illegal or unauthorized
custody. Reliance in this can be placed upon Pavan Kumar Kathuroju v 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,
23445, wherein Hon'ble Supreme Court, while relying upon
Yashita Sahu vs. State of Rajasthan and others : 2020 AIR (Supreme Court)
577 has held that the habeas corpus is a prerogative writ which is an
extraordinary remedy and recourse to such a remedy should not be permitted
unless the ordinary remedy
remedy provided by the law is either not available or is
ineffective. It has been held that in child custody matters, the power of the
High Court in granting the writ is qualified only in cases where the detention
of a minor is by a person who is not entitled to his legal custody and in child
custody matters, the writ of habeas corpus is maintainable only where it is
proved that the detention of a minor child by a parent or others was illegal and
without any authority of law. Similar view was expressed by Hon'ble
Hon'
Supreme Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu
and others 2022 SCC OnLine SC 885.
8. In the present case, there is no dispute about the fact that
respondent No. 4 is the biological father of alleged detenue,, who was born out
of the wedlock of the petitioner and respondent No. 4.. Hence, it cannot be
stated that his custody with respondent No. 4 is illegal in any manner. There is
nothing on record to show that after the petitioner separated from respondent
No. 4, she
he had filed any appropriate petition before a competent Court of law
seeking custody of the minor child and was either given his custody or was
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given some visitation rights,
rights, so that it can be stated that by separating the
child from the petitioner or denying her vis
visitation
itation rights, respondent No. 4 has
defied the said order. So far as the ratio of law laid down in Mandeep Kaur's
Kaur
case (supra) and Vineet Gupta's case (supra) is concerned, the same is not
disputed at all. However, the same is not applicab
applicable to the peculiar facts and
circumstances of the present case as in Mandeep Kaur
Kaur's
's case (supra), the age
of the child was found to be below 05 years. T
Therefore, in view of Section 6
of the Hindu Minority and Guardianship Act, 1956, as per which, the custody
of a minor who has not completed the age of 05 years should ordinarily be
with the mother,
mother, the custody of the child was directed to be given to her
mother by issuing a writ of Habeas Corpus. Similarly, the ratio of law laid
down in Vineet
V Gupta's
's case (supra) that the adulterous spouse is not the
incompetent parent and such fact cannot be made a sole ground for denying
custody of the child is also not disputed but the petitioner can take this plea in
a petition filed under the Guardians
Guardians and Wards Act and not in the present
petition as in a petition filed under Article 226 of the Constitution of India,
this Court is only required to see whether the child is detained by a person
who is not entitled to his legal custody,
custody, which cannot be ssaid
aid in the present
case as respondent No. 4 is admittedly natural father of the child.
9. Certain allegations and counter allegations with regard to
misbehavior and conduct of the parties to lis have also been made by them.
the
However, at this stage, there is no need to dilate upon the same and without
casting any aspersion on the moral
moral character of the petitioner or respondent
No. 4 and considering the position of law as laid down in aforecited
judgments, this Court is of thee view that the remedy available to the petitioner
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for obtaining
btaining custody of the child is to file an appropriate petition under the
Guardianship and Wards Act, 1890 and not to seek grant of writ of habeas
corpus. Accordingly,
Accordingly, the present is dismissed, being devoid of any merit.
25.10.2024
.10.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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