M.Wahajuddin - (1.) ONE Jetha Ram has filed this petition on behalf of Rajeev and Km. Arti minors. Rajeev is alleged to be five years' old while Km. Arti is alleged to be 2 1/2 years old. The allegations of Jetha are that opposite party no. 1, Smt. Pushpa Devi had two earlier issues Shailendra and Rajendra and opposite party Pushpa Devi was married with Jetha in 1978 and since then she was living with him renouncing the profession as a dancing girl. But in the year 1963 she has taken away the minor petitioners and has again resumed the profession. The prayer is that the custody of petitioners nos.1 and 2 be given to Jetha Ram and necessary writ be issued in that direction.
(2.) THE prayer has been opposed by the opposite parties. Smt. Pushpa Devi opposite party no. 1 has maintained that she is neither the legally wedded wife of Jetha Ram nor petitioners were born from him. THE opposite party is maintaining all her children including the present petitioners and giving eduction etc. THE opposite party carries a profession of dancing girl and singer and is registered as such as per Annexure I of the counter affidavit. One of the preliminary points raised in opposing the petition was that Jetha Ram has a better altenative remedy and the course open to him is to go to Guardian and Wards forum under the General Law particularly so when various questions of disputed facts are involved and present habeas corpus petition is not maintainable. As learned counsel for the opposite party relied upon a Division Bench case of this Court in support of his stand I deemed it desirable to dispose of this preliminary point. Reliance has been placed by the opposite party upon the habeas Corpus Writ petition no. 9289 of 1982 Tarif Shafiq v. Smt. Imtiaz Bono decided by Honourable B. C. Jauhari, J. on 11th October 1982 in which his Lordship relying upon certain unreported decisions of this Court held that it is not proper to interfere by way of writ while proceedings under Section 25 of the Guardian and Wards Act are pending in which the matter of interim custody can also be ordered. There is another Division Bench decision of this court in the case of Mira Devi v. Adhyakshika Rajkiya Sharnalaya Allahabad, Habeas Corpus Petition no. 6171 of 1978 which was also referred to in the aforesaid case of Tariq Shafiq. In that case it was also held that as a case under Section 25 of the Guardian and Wards Act is already pending the learned Additional District Judge should dispose of that case at the earliest. It is noteworthy that in the Division Bench case of Meera Devi (supra) also it was also held that in a writ of Habeas Corpus the court can order that the custody of the minor may be given to the particular party. His lordship under the circumstances of the particular case do not consider it desirable to interfere while the proceedings under Section 25 of the Guardian and Wards Act is pending. Reliance has also been placed on a number of pronouncements of other courts but once it appears that there are pronouncements of this Court as well as of Honourable Supreme Court I am to be mainly guided by the principles laid down in such rulings. On the other hand the applicant has relied upon a subsequent Division Bench case of this court in Vinayak Goel v. Prem Prakash Goel, 1981 ACrR 257. In that case it was held that the law is well settled that the writ of Habeas Corpus would be maintainable for the custody of a child despite alternative remedy of filing an application under the Guardian and Wards Act. On another point it supports the opposite party, namely where a person is natural guardian and grand parents were holding custody the court will restore the custody to the natural guardian. The stand of the opposite party's counsel is that under Section 6 of the Hindu Guardianship's Act in yiew of the age of the minors the mother is the lawfully entitled to their custody. There is, however, a Supreme Court case also relied upon by the very applicant's counsel, namely the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar, 1982 SC 792, a three Judges pronouncement. In that case Habeas Corpus Petition was filed in Punjab and Haryana High Court asking for the custody of the child and was dismissed. The Supreme Court in that case held that in matters concerning custody of minor children paramount consideration is the welfare of the minor and not legal right of this or that particular party. This case is important from the angle that while holding that the court cannot take evidence itself in Habeas Corpus petition and without evidence the matter of the welfare of the child cannot be satisfactorily determined, so the District Judge was directed to make inquiry on certain points after affording opportunity to adduce evidence then to submit report. This ruling is further important from the angle that notwithstanding that the alternative remedy under the Guardian and Wards Act was available and the questions of facts were involved the Supreme Court held that the matter can be determined in the Habeas Corpus by directing any subordinate court to hold an inquiry. The rules of interpretation of precedents are well settled. The courts are required to make efforts to reconcile the various propositions of law and principles laid down in different rulings and I should not fail in that. The ratio of the aforesaid four rulings is as follows :- (1) If a wrongful detention of minor is alleged the application for Habeas Corpus cannot be thrown out simply because an alternative remedy under Section 25 of the Guardian and Wards Act is available and questions of fact are involved. (2) Where a proceeding under Section 25 of the Guardian and Wards Act is pending regarding that matter already, as the court exercising such jurisdiction is equally competent to give relief, and questions of fact already before that court the habeas corpus petition may be rejected with direction that the court before which the proceeding under Section 25 of the Guardian and Wards Act is pending will determine all controversy involved and give a relief. (3) If no such proceeding is pending the habeas corpus petition would not be rejected simply because another remedy which was not sought is also available and the court exercising habeas corpus jurisdiction can well direct as inquiry into the questions of fact and seek a report from the subordinate court on the relevant points giving an opportunity for evidence there, and (4) While the consideration of legal right to custody is a relevant factor it is the interest of the minors which alone is paramount and has got to be considered.
(3.) RELIANCE was placed upon the case of Capt. Dushvant Somal v. Smt. Sushma Somal, 1981 SC Cases 414. In this case also actually the order of the High Court issuing a writ of Habeas Corpus was granted. It was, no doubt, in that case observed that an alternative remedy, that is, remedy available under the Guardian and Wards Act and Code of Criminal Procedure ordinarily inhibits a prerogative writ ; it was at the same time observed 'it is . not an impassable hurdle'. I have referred to a later pronouncement of the Supreme Court and even the entire observations in this pronouncement read together would indicate that there is no such absolute bar to granting relief in habeas corpus and I have already laid down the ratios of the latest pronouncements on this point. In the case of Gohar Begum v. Suggi alias Nazama Begum, AIR 1960 SC 93 a three Judges' pronouncement, also it was held that a remedy under the Guardian and Wards Act is no bar to writ of habeas corpus and High Court has power to (order delivery of child. In that case the High Court had held that the question of the paternity of the child was disputed and it was not the function of that court in application under Section 491 to record finding on such controversial facts but the Supreme Court did not agree with such observations and held that the welfare of the child is the main criterion. In that case it was further held that Gohar Begum was entitled to the custody of her illegitimate; daughter no matter who her father was. RELIANCE was also placed upon the case of Madras Division Bench in KMR Sultan Akbarsha v. Sultanasofia Begum, 1982 CrLJ 1617. The learned, counsel for the opposite party relied upon the observations that 'the proper and correct view is that the prerogative writ of habeas corpus is an extraordinary remedy and is generally sought for upon sufficient cause, only in cases where the ordinary remedy provided by law is not available or is inadequate or ineffective. RELIANCE was further placed upon certain observations made in paragraphs 10 to 14 of the ruling. This ruling was cited because in this case some earlier Madras pronouncement, as well as pronouncements of some High Courts were considered. [ have referred to two Supreme Court pronouncements in the case of Gohar Begum (Supra) and in the case of Dr. Veena Kapoor (supra) and in view of these two pronouncements of the highest courts as well as in view of ratio of the rulings of Allahabad and Supreme Court laid down earlier and reconciling them I hold that the present habeas corpus petition is maintainable and simply because there is an alternative remedy under the Guardian and Wards Act which has not been availed of this petition cannot be rejected. On the following three questions of fact an enquiry and report is required which I formulate : (1) Whether Smt. Pushpa Devi is the legally wedded wife of Jetha Ram son of Ramlal and the children Rajeev and Km. Arti were born in such legal wedlock ? (2) Whether the applicants Rajeev and Km. Arti are illegitimate Children of Smt. Pushpa Devi. If so, whether they are born from Jetha Ram or not ? (3) What will be in the best interest of the children and interest of the minors and whether in such interest they should reside with Smt. Pushpa Devi from whom they are admittedly born or it will be in their best interest to deliver their custody to Jetha Ram.;