G.P.Mathur - (1.) IT is an unfortunate case where two minor boys aged about 7 years and 8-1/2 years have not only been deprived of the company of their mother for over two years but they have also become subject matter of litigation. None- else but their own parents are responsible for this unhappy state of affairs. Their father is suffering from the ego of a typical Indian husband and their mother appears to be overconscious of her job and asademic achievements.
(2.) THIS petition under Article 226 of the Constitution has been filed by Smt.Sunita Malik for a writ of habeas corpus directing the opposite parties to produce her sons Pulkit Malik and Ankit Malik in this Court so that their custody may be given to the petitioner, who is their mother. D. V. Singh Malik, who is the father of the children, has been arrayed as opposite party no. 1 and Vikram Singh, their grand father, has been arrayed as opposite party no. 2. The petition is a long one and runs into 54 paragraphs. The main allegations in the petition are that the petitioner Smt. Sunita Malik is M.Sc. Ph.D. and is a lecturer in Dayawati Modi Academy, a public school in Modipuram. Meerut. She was married to D. V. Singh Malik, who is M.Sc. and is working with Modi Rubbers Out of the wedlock she was blessed with two sons Pulkit and Ankit. Initially the petitioner and her husband were living at Meerut 'in various rented accommodations but in June, 1988, they shifted to the newly constructed house of the father of the petitioner, Dr. Chokhe Singh. Both the sons of the petitioner were admitted in the Dayawati Modi Academy and were studying there, ' It is alleged that opposite party no.1 wanted to somehow grab the house of the petitioner's father situate at E-6 Pallavpuram. Meerut, but when it was resented he became very sore, withdrew himself and denied the petitioner of his society. On 12th April, 1989, the opposite party no.1 took the children out on the pretext of taking them to Navchandi fair and then to Muzaffarnagar to enable his parents to meet them. However, subsequently she received a legal notice on 15th April 1989, from her husband informing her that the children had started living with their grand-father at Muzaffarnagar. On 17th April, 1989, O. P. No. 1 filed a suit for injunction in the court of the Civil Judge, Muzaffarnagar, and an injunction order was passed against her, The petitioner filed a petition under the Guardians and Wards Act for appointment of guardian of the person of the minors in the court of the District Judge Meerut but the proceedings of the said case were got stayed by O, P. No. 1 by filing a transfer application in the High Court. It is also averred that the petitioner had not been able to meet her two sons for the last two years except on three or four occasions. The children were greatly attached to their mother but they were being forcibly detained by the opposite parties at Muzaffarnagar against their wishes, It is further averred that the petitioner being a lecturer, is earning good salary and can look after the children better than O. P. No. 1, who being employed in a factory, has long working hours and is not able to devote any time to them The father of the boys, namely, D. V. Singh Malik has filed a detailed counter-affidavit controverting the allegations made by the petitioner and has pleaded that the petitioner was only M.Sc. at the time of her marriage and it was on his pursuation that she got Ph.D: and B;Ed. degrees. The petitioner did not want to live in India and wanted to go to U.S.A. for which she attempted to obtain passport in thick veil of secrecy: She was more interested in her own career than in the welfare of her children: When the petitioner and O. P. No. 1 were living together the petitioner used to go out in the morning and return late in the evening and she was busy in going to parties, tours etc. and had no spare time for the family. The children are being looked after by him and his parents and are receiving good education in a public school at Muzaffarnagar. It is also averred that the petitioner never made any attempt for reapproachment and he is still willing to take back the petitioner to make a new beginning and write off the past: It is emphatically denied that the children were taken away fraudulently and they were being unlawfully detained. It may be mentioned here that the petitioner Smt.Sunita Malik filed a petition on 20-2-1990 under section 7/8 of the Guardians and Wards Act tor appointment of guardian of her minor children Pulkit and Ankit in the court of the District Judge, Meerut, which was registered as Misc. Case No. 53 of 1990. However, the case could not proceed as D. V. Singh Malik, O. P. No. 1, filed a transfer application in the High Court in which the proceedings of the case were stayed: The stay order is still operative. O. P. No,1 D: V. Singh Malik has also filed an injunction suit against the petitioner Smt.Sunita Malik.
(3.) SHRI Ravi Kant, learnned counsel for o.p.no. 1, has contended that the children were not being forcibly or unlawfully detained and a writ of habeas corpus was not maintainable. The argument of the learned counsel is not tenable as it is well settled that a writ of habeas corpus would be maintainable to enforce the legal right to the custody of minors. In the law of Extraordinary Legal Remedies by Ferris and Ferris it has been observed as follows in para 4 of the chapter dealing with habeas corpus :- "The writ has for its object the speedy reliefs, by judicial decree, of persons who are illegally restrained of their liberty. It also lies where a party is held by one person when another is entitled to custody in which case the court is empowered to deliver him from the unlawful imprisonment by committing him to the custody of the person, who is by law entitled thereto, as in the cases of infants and insane persons," In Halsbury's Laws of England, Vol. 11, para 1469, the law has been more succinctly stated as under :- "A parent, guardian or other person who is legally entitled to the custody of a minor can regain that custody, when wrongfully deprived of it, by means of writ of habeas corpus. For the purpose of the issue of the writ the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restrain or force is being used towards the minor by the person in whose custody and control he is for the time being.' Therefore, even if the minor children are not being unlawfully detained, the present habeas corpus petition filed by their mother is maintainable. Learned counsel for the respondent next contended that the petitioner had already instituted a case under the Guardians and Wards Act in the Court of District Judge, Meerut, and as she was pursuing an alternative remedy the present petition filed by her in the High Court under Article 226 of the Constitution was not maintainable. It may be observed here that respondent no.1 D. V. Singh Malik has filed an application in the High Court for transferring the petition under the Guardians and Wards Act, filed by the petitioner, from the court of District Judge, Meerut, to the court of District Judge, Muzaffaranagar, and in this transfer petition the case instituted by the petitioner has been stayed. It is not disputed that o.p. no. 1 filed the transfer application in the High Court even before he filed written statement in the court of District Judge, Meerut, and the stay order is still operative. Therefore, no progress has been made in the petition filed by the petitioner Smt.Sunita Malik under the Guardians and Wards Act. Since o.p. no. 1 has himself got the proceedings of the aforesaid case stayed by filing the transfer application, it does not lie in his mouth to say that the present habeas corpus petition is not maintainable on the ground that the petitioner was pursuing an alternative remedy.;