- (1.) This writ petition in the nature of habeas corpus has been filed on behalf of Km. Ekisha Singhal aged about 6 1/2 years and Km. Khushi Singhal aged about 4 1/2 years through her natural guardian/ father for the following relief:- "(i) Issue a writ in the nature of habeas corpus directing, commanding the opposite party no.3 to produce the detenues/ petitioners before this Hon'ble Court. Further be pleased to order to set the detenues/ petitioners at liberty to go with their father/natural guardian."
(2.) The brief facts are that the marriage of the father of the petitioners Amit Singhal was performed with the opposite party no.3 on 2.12.2008. The father of the petitioners was running a transport business while the father of the opposite party no.3 was store keeper in B.H.E.L. Factory, Haridwar. The petitioners were born on 1.10.2009 and 22.6.2011 respectively. The parties were leading a happy married life at Bahraich but all of a sudden the opposite party no.3 started pressurizing the father of the petitioners to sell off the property, wind up his business and settle along with her at Haridwar. Since the demand of opposite party no.3 was unreasonable, the father of the petitioners tried to persuade the opposite party no.3 but feeling annoyed with the refusal of the father of the petitioners, she left the company of the father of the petitioners and started living at Haridwar with her father. All the efforts made by the father of the petitioners to persuade the opposite party no.3, failed. It has also been submitted in the writ petition that in the month of June, 2013, the in-laws of the father of the petitioners came to Bahraich and took away the petitioners as well as the opposite party no.3 on the pretext that they were being taken to Haridwar during the vacation for only 15 days. However, after 15 days when the opposite party no.3 did not return back along with children the father of the petitioners contacted her on telephone but the opposite party no.3 refused to come back to Bahraich The father of the petitioners, therefore, filed a suit under Section 9 of the Hindu Marriage Act before the Principal Judge, Family Court, Bahraich, which is still pending. The petitioners were studying in a reputed school at Bahraich and on account of the opposite party no.3 leaving the company of her husband their studies are being affected. It has further been pleaded that when the notice of the suit filed under Section 9 of the Hindu Marriage Act was served upon the opposite party no.3, she gave an application to the police for registration of FIR, upon which the police of Haridwar informed the father of the petitioners that an application for registration of FIR has been given and his statement is required, upon which the father of the petitioners went to Haridwar. The Women Help Line Cell of Haridwar also tried to settle the controversy between the parties by way of mediation but that too failed. The report submitted by the Women Help Line Cell reveals that sincere efforts were made for mediation but the opposite party no.3 was not willing to stay with her husband and wanted a divource from him. She also filed an application under Section 125 Cr.P.C. before the Family Court Haridwar claiming maintenance for herself and for the petitioners. In these circumstances when the opposite party no.3 is not able to maintain herself then how she can bear the expenses of the petitioners. The father of opposite party no.3 is also a retired persons while the father of the petitioners is carrying on business of transport and has sufficient means to look after the daily needs of his daughters and also bear the expenses of their studies. The custody of the petitioners, therefore, may be given to their father.
(3.) The opposite party no.3 has filed counter affidavit and has submitted that the father of the petitioners himself started harassing the opposite party no.3 after she gave birth to the second female child and started demanding dowry. It was on account of continuous misbehaviour of the father of the petitioners that the opposite party no.3 was forced to live with her parents. Since the time, the opposite party no.3 was forced to leave the house of the father of the petitioners, no financial assistance was given either to the opposite party no.3 or to the petitioners. The petitioners are studying at Haridwar in a good institution and their expenses is being borne by the opposite party no.3 herself and her father. It has also been submitted that since the opposite party no.3 is the mother of the petitioners, therefore, she can better look after her minor daughters. There is no female member in the family of the father of the petitioners and the father of the petitioners most of the time remains busy in the business, therefore, there is no one to look after and take care of the petitioners. The opposite party no.3 has also filed supplementary counter affidavit showing the copies of the progress report and fees payment receipts in order to demonstrate that the petitioners are studying at Haridwar.;