Jaivir Singh Punia S/O Indiraj ... vs State Of Rajasthan
2022 Latest Caselaw 1094 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

             D.B. Habeas Corpus Petition No. 322/2021

Jaivir Singh Punia S/o Indiraj Singh Punia, Aged About 45 Years,
R/o   162,    Prime    Villa    Clasic,       Mahindra        Sez   Road,   Jaipur,
(Rajasthan)
                                                                     ----Petitioner
                                     Versus


1.     State    Of     Rajasthan,          Through          Principal    Secretary,
       Department         Of     Home,         Government           Of   Rajasthan
       Government Secretariat, Jaipur.
2.     Commissioner Of Police, Jaipur, Commissionerate, Jaipur.
3.     Deputy Commissioner Of Police, Jaipur West.
4.     Station House Officer, Police Station Bhankrota, Jaipur
       West.
5.     Jagdish Rai Choudhary S/o Unknown, R/o 92/210, Gokhle
       Marg Agarwal Farm, Mansarovar, Jaipur.
6.     Guddi Devi W/o Jagdish Rai Choudhary, R/o 92/210,
       Gokhle Marg Agarwal Farm, Mansarovar, Jaipur.


                                                                  ----Respondents

For Petitioner(s) :

Mr. Pratush Choudhary on behalf of Mr. Deepak Chauhan, Advocate

For Respondent(s) : Mr. R.K. Agarwal, Sr. Advocate with Mr.Sandeep Bansiwal, Mr.Mamoon Khalid & Mr. Adhiraj Modhi, Advocate Ms. Rekha Madnani, PP

HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE UMA SHANKER VYAS

Order

Date of Order :: 28th January, 2022

(2 of 9) [HC-322/2021]

This habeas corpus petition has been filed by the

petitioner under Article 226 of the Constitution of India for

restoration of the custody of petitioner's son Rajvir Singh Punia

and daughter Vanya Punia from respondent no. 5 - Jagdish Rai

Choudhary and respondent no. 6 - Guddi Devi, who are father-in-

law and mother-in-law of the petitioner.

Facts of the case, as per petitioner, are that on

23.6.2021, the petitioner approached the Police Station SEZ,

Kalwar for registering a complaint against his father-in-law, who

took his son Rajvir Singh Punia and daughter Vanya Punia on

19.6.2021 without his permission / consent and thereafter his

father-in-law and mother-in-law both disappeared with his

children. Since the case was falling within the jurisdiction of Police

Station, Bhankrota, on being asked, the petitioner got a complaint

registered at Police Station, Bhankrota on 26.6.2021 mentioning

therein that he is working for SIAC-SKH India Cabs Pvt. Ltd and

was residing at 162, Prima Village Classic with his wife and

children. On 1.5.2021, due to Covid-19 his wife passed away and

thereafter both the minor children were residing with the

petitioner in his home. On 19.6.2021, when the petitioner was at

his office, respondent no. 5 had forcibly taken away/ kidnapped

his minor children from his residence without any prior

permission / consent and now both the respondents no. 5 and 6

have disappeared from their residence.

A reply to the petition has been filed by the

respondent-State wherein it has been pleaded that as per the

address given in the complaint, enquiry was made, but the house

was found locked and a tenant named Vijay Poonia was present

(3 of 9) [HC-322/2021]

there, who informed that Jagdish Choudhary i.e. the owner of the

House is residing in village since the death of his daughter.

A reply to the petition has also been filed on behalf of

respondents no. 5 and 6, wherein it has been specifically denied

that the respondents no. 5 had forcibly taken the children. It was

also averred that Section 25 of the Guardianship and Wards Act,

1890 which is complimentary to the Hindu Minority and

Guardianship Act, 1956 provides that the Civil Court having

jurisdiction may make an order for custody of the child looking to

the welfare of the child and further provides machinery for

enforcing the order. There being an efficacious alternative legal

remedy under Hindu Minority and Guardianship Act, 1956 and

Guardianship and Wards Act, 1890, the habeas corpus petition

filed by the petitioner is liable to be dismissed.

Learned counsel for the petitioner submits that the

Hon'ble Apex Court in the case of Yashita Sahu Versus State of

Rajasthan & Ors. reported in (2020) 3 SCC 67 has held that the

Court can invoke its extraordinary writ jurisdiction for the best

interest of the child. Therefore, the habeas corpus petition before

this Court in child custody matters is maintainable.

He has relied upon the judgment passed by the Hon'ble

Apex Court in the case of Tejaswini Gaud and others versus

Shekhar Jagdish Prasad Tewari and others reported in (2019)

7 SCC 42 to contend that the petitioner being the only surviving

natural guardian and father, the custody of the children should be

handed over to him.

He has referred to Section 6 of the Hindu Minority and

Guardianship Act, 1956 (for short, 'the Act of 1956') and submits

(4 of 9) [HC-322/2021]

that in view of Section 6 of the Act of 1956, the custody of minor

children should normally be with the father, therefore, the

petitioner-father is entitled to the custody of minor children.

He has also placed reliance on the judgment passed by

the Coordinate Bench of this Court in the case of Sunita Versus

Additional Chief Secretary, Home Department, Government

of Rajasthan and others (D.B. Habeas Corpus Petition No.

90/2021), wherein it was held:

"In the matter of custody, the paramount consideration is welfare of the child and if the child is desirous to stay with his natural guardian-the mother, who is in position to maintain him, then the custody deserves to be handed over to the mother.

On the other hand, learned Sr. Counsel appearing for

the respondents no. 5 and 6 submits that in the case of

Tejaswini Gaud & Ors. Versus Shekhar Jagdish Prasad

Tewari & Ors. reported in (2019) 7 SCC 42, it has been held by

the Hon'ble Apex Court that in child custody matters, the ordinary

remedy lies only under the Hindu Minority and Guardianship Act,

1956 or the Guardianship and Wards Act, 1890, as the case may

and there are significant differences between the enquiry under

the aforesaid acts and the exercise of power by the writ court,

which is summary in nature.

He has drawn the attention of the Court towards the

relevant paragraphs of the judgment passed by the Hon'ble Apex

Court in the case of Tejaswini Gaud (supra), which are reproduced

as under:

(5 of 9) [HC-322/2021]

"19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardianship and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court, which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the Court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.

(Emphasis supplied by me)

25. Welfare of the minor child is the paramount consideration:- The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court

(6 of 9) [HC-322/2021]

ought to be child interest and welfare of the child.

(Emphasis supplied by me)

26. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.

(Emphasis supplied by me)

Learned Sr. Counsel has also drawn the attention of the

Court towards Section 25 of the Guardianship and Wards Act,

1890 and submits that welfare of the child is the paramount

consideration. The answering respondents are the maternal grand

parents of the children. The children are of the age of 6 years and

9 years and they can express their intelligent preferences.

Heard. Considered.

The facts in the case of Yashita Sahu (supra) are quite

distinct than the facts of the instant case, therefore, the said

judgment does not apply in the facts of the present case.

The facts in the case of Sunita (supra) are also quite

distinct than the facts of the instant case. In the said case, child

was desirous to stay with his natural guardian-the mother, who

was in a position to maintain him, whereas in the instant case,

after the death of their mother, the alleged detenue have been

living with the respondents. During the course of inter-action in

chamber, they categorically stated that they wished to live with

the respondents.

(7 of 9) [HC-322/2021]

In the case of Dr. (Mrs.) Veena Kapoor Versus Shri

Varinder Kumar Kapoor reported in AIR 1982 SC 792, the

Hon'ble Apex Court in paragraph 2 observed as under:

"It is difficult for us in this habeas corpus petition to take evidence without which the question as to what is in the interest of the child cannot satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh."

In the case of Tejaswini Gaud & Ors. (supra), the

custody of the child was handed over to the father in view of the

fact that while mother Zelam was undergoing treatment as she

was detected with breast cancer, child Shikha was with her father

till November, 2017 and unfortunately on 29.11.2017, father was

suddenly hospitalized as he was diagnosed with Tuberculosis

Meningitis and Pulmonary Tuberculosis. While he (the father) was

under treatment, appellant no.1 Tejaswini Gaud, one of the two

sisters of Zelam and appellant no. 4 Dr. Pradeep Gaud, who is the

husband of Tejaswini, took Zelam alongwith Shikha to their

residence at Mahim, Mumbai for continuation of the Zelam's

treatment. Subsequently Zelam succumbed to her illness. In the

facts and circumstances of the case, custody of daughter Shikha

(8 of 9) [HC-322/2021]

was handed over to her father-Shekhar Jagdish Prasad Tewari,

whereas in the present case, it is not an admitted fact that

children were in the custody of the petitioner at the relevant point

of time.

However, in the case of Tejaswini Gaud & Ors.

(supra), it was held by the Hon'ble Apex Court that where

detailed enquiry is required, the Court may decline to exercise the

extraordinary jurisdiction and direct the parties to approach the

Civil Court. It was also held that the Court while deciding the

child custody cases is not bound by the mere legal right of

the parent or guardian. Paramount consideration is the welfare

of the child and due weight should be given to children's ordinary

comfort, contentment, health, education, intellectual development

and favourable surroundings.

It is true that powers of the High Courts under Article

226 of the Constitution are wide and must be invoked to secure

the ends of justice and the issue regarding custody can be

determined if the facts and circumstances of the case so warrant,

but this principle has to be applied to the facts of each case.

Taking into consideration the facts and circumstances of

the case and more particularly when the custody of the children is

admittedly with respondent nos. 5 & 6 and no material has been

brought on record, persuasive and convincing enough to show that

the immediate restoration of the custody of the children is

warranted, we do not think it appropriate to direct respondent

Nos. 5 & 6 to give the custody of the children to the petitioner.

Even though in view of the judgment passed by the Hon'ble Apex

Court in the case of Tejaswini Gaud (supra), we are not inclined to

(9 of 9) [HC-322/2021]

accede to the prayer made by the petitioner. However, since the

Court also has to keep into consideration the best interest of the

children and the warmth and affection of a father is equally

important for the emotional and intellectual development of any

child, we deem it appropriate to grant visitation rights to the

petitioner. The petitioner-father would be entitled to meet the

children on the weekends till the issue regarding the permanent

custody of the children is finally adjudicated by the competent civil

court. For this purpose However, the petitioner-father is granted

liberty to take legal recourse, as available to him, for redressal of

his grievance.

It is made clear that the observations made here-in-

above are limited to the extent of deciding the present habeas

corpus petition.

Accordingly, the instant Habeas Corpus Petition is

disposed of in the above terms.

                                   (UMA SHANKER VYAS),J                                            (PRAKASH GUPTA),J

                                   DILIP KHANDELWAL









Powered by TCPDF (www.tcpdf.org)