- (1.) G. P. Mathur, J. Smt. Beena Jaiswal has filed this habeas corpus petition praying that her son Himanshu Kumar alias Lucky be released from the illegal custody of the respondents and be handed over to her custody. The respondent No. 1 Deepak Kumar is the husband of the peti tioner, respondent Nos. 2 and 3, namely, Ram Dulare and Smt. Kunta are her-in -laws and respondent No. 4 Akkoo is her husband's brother.
(2.) THE case of the petitioner, in brief, in that she was married to Deepak Kumar on 4-12-1992 and her parents gave substantial dowry in the marriage. However, the respondents continued to make further demands of dowry. She give birth to a male child Lucky alias Himanshu Kumar on 9-5-1994 at her parents house who live in the same city of Kanpur. THE respondents tried to forcibly take away the child Lucky on 22-5-1994 re garding which a complaint was made at the police station and at the inter vention of the Incharge, SI of the police station, an agreement was arrived at between the parties and thereafter the started living in her husband's home. THE respondents gave her very cruel treatment regarding which she gave information to her parents who came and took her to their house. THE respondents did not allow her to take her son Lucky and they were illegally detaining him. THE case of the respondents is that there was no demand of dowry and some ordinary gifts were given at the time of marriage which are customary in the family. THE petitioner and her parents triad to create problems soon after the marriage and they wanted that Deepak Kumar should live separately and away from his parents and other family mem bers. Rohit-brother of the petitioner abused and misbehaved with the respondents on several occasions and even threatened them with regard to the incident which took place on 22-5-1994. A First Information Report was lodged on the next day but the matter was got compromised at the intervention of some persons and police official. THE petitioner left the house of her husband without his consent sometime in July/august, 1994 leaving the child-Lucky and continued to live in her parents house for quite sometime. She came back but again left the house of her husband on 3-12-1994 against his wishes leaving her son. A FIR regarding this incident was lodged on the same night. THE petitioner moved an application under Section 97, Cr PC which was dismissed. It is further pleaded that the peti tioner has herself left the house of her husband as she does not want to stay with his parents and other relations and that she has no love or affection or concern for her son Lucky alias Himanshu Kumar. Shri A. K. Yog learned counsel for the respondents has submitted that as the child is living along with his father and paternal grand parents, he is not being forcibly or unlawfully detained and as such the habeas corpus petition is not maintainable. According to learned counsel if the petitioner wants to get custody of her son, the proper remedy is to file a petition under Guardians and Wards Act. In my opinion, the contention of Sri Yog that a writ of habeas corpus is not maintainable is not correct. In Extraordinary Legal Remedies by Ferris and Ferris in para 4 it has been observed while dealing with habeas corpus petitions that such a writ is maintainable for custody of infants at the instance of the party who is entitled to their custody. In Halsbury's Laws of England Vo. 11 para 1469, the law on the point has been 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 it 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 custody of Lucky by the respondents is not unlawful, the present habeas corpus petition filed by his mother is fully main tainable. It is true that the petitioner can move an application under Guardianse and Wards Act for having the custody of her son but that by itself is no ground to refuse a writ of habeas corpus. It has been observed in Halsbury's Laws of England Vol. 11 para 1455 that a writ of habeas corpus may not in general be refused merely because there exists an alter native remedy by which the validity of the detention can be questioned. This question has been examined in considerable detail by a Division Bench of our Court in Vinayak Gopal v. Prem Prakash Goyal, 1981 AWC 457 wherein it has been held that a writ of habeas corpus would be maintain able for the custody of the child despite an alternative remedy of filing an application under Guardians and Wards Act. Thus there can be no doubt that the present habeas corpus petition filed by the mother for custody of her son who is at present residing with his father and grand parents is fully maintainable.
(3.) SRI K. P. Agarwal, learned senior counsel for the petitioner has submitted that at the time of marriage Bina Jaiswal, a substantial dowry was given but on account of greed, the respondent No. 1 and his parents continu ed to harass her by making further demands of colour T. V. , Motor-cycle, besides rupees fifty thousand as cash as the petitioner's father who was working in a Bank had received several lakhs by way of post-retirement benefits. Learned counsel has further urged that as the demand of respon dents was not met, the petitioner was thrown out of the house and under force of circumstances, she is living with her parents and the child has been illegally detained. SRI A. K. Yog has strenously controverted the allega tions made against the respondents regarding demand of dowry or of any ill treatment having been meted out to the petitioner. It is difficult to record any finding on this question only on the basis of affidavits and without taking oral evidence. The copies of the F. I. R. complaints and the petition under Section 97, Crpc which was filed by the petitioner do show that some exaggeration has been done by the petitioner and that she also does not want to stay in the same house in which the parents, brothers and sisters of her husband are living. Probably she wants to live separately along with her husband so that she may be able to lead an independent life. Learned counsel for the petitioner has submitted that as the age of Lucky is only about 2 years, in view of Section 6 (a) of Hindu Minority and Guardianship Act, the mother is entitled to his custody even though the father may be his guardian and therefore the respondents are not entitled to keep him (Lucky) in their custody. It is urged that for an infant of such a young age the mother besides being legally entitled to have the custody is also the most suitable person for keeping the child, [n support of this submission, learned counsel has placed reliance on AIR 1941 Bombay 103; AIR 1948 Awadh 266; AIR 1954 Pat 489; AIR. 1984 Mad. 186; AIR 1987 Delhi 81; AIR 1960 SC 93; AIR 1990 SC 1156 and AIR 1994 All. 250. In this connection, it may be noticed that the dispute here is not between a parson having a legal right and a stranger but basically between a father and mother for the custody of their child. Section 6 (a) of Hindu Minority and Guardianship Act lays down that natural guardian of a Hindu minor in respect of his person and property is father and after him, the mother but the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The question involved cannot however be decided strictly on the basis of the aforesaid statutory provision. The Supreme Court had on occasion to consider this question in Smt. Veena Kapoor v. Varinder Kumar, AIR 1982 SC 792 wherein it has been observed as under: "whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considera tions of the legal rights of parties but on the sole and predomi nant criterion of what would best serve the interest and welfare of the minor. " It is, therefore, clear that the matter regarding custody of the minor boys should not be decided on the basis of the legal rights of the petitioner or respondent No. 1 but on the paramount consideration of their welfare.;