G.P. Singh, C.J. - (1.)This is a petition by a mother for issuance of a writ of habeas corpus for custody of her minor son Vivek who is, for the time being, in the custody of the respondent, his father.
(2.)The parties come from well-to-do families. They were married at Indore on 12th Dec., 1976. The child was born on 23rd Dec., 1977 at Jabalpur in a nursing home. The petitioner's parents reside at Jabalpur. The petitioner's father is a M. E. S. Contractor. The petitioner and the child went to Indore sometime in Feb., 1978. The case of the petitioner is that she and the respondent went to Delhi in Oct., 1978. The respondent on 23rd Oct., 1978 disappeared with the child and came back to Indore. The petitioner returned to Indore on 26th Oct., 1978, but she was not allowed to enter the respondent's house. This story is denied by the respondent. According to him, the petitioner on her own left the matrimonial home with her brother on 21st Oct., 1978 without caring for the child who was then eleven months old. According to the respondent, the petitioner left for good and she came a few days thereafter and stayed in a hotel only with a view to get back her jewellery and woollen clothes. In our opinion, it is not necessary to decide the controversial facts here; very likely, there is a considerable overstatement by both the parties. There are two letters (Annexures 5 and 6) written by the petitioner to the respondent in Oct. and Nov., 1978. These letters appear to be normal letters. There is no complaint in them that the child was removed by the respondent when the parties were at Delhi. There is also nothing in them to show that the petitioner had left for good her matrimonial home at Indore and that she had no concern either for her child or her husband. It appears that from Dec., 1978 to June 1981 the relations of the parties met on various dates and efforts were made for reconciliation, but nothing came out of them. In Dec., 1978 and Oct., 1979, the petitioner sent parcels of woollen clothes for the child which showed continuing concern for the child. In November, 1979 she also sent some medicines for her father-in-law which he refused to accept. On 9th July, 1980 the respondent applied at Indore for divorce under Section 13 of the Hindu Marriage Act. The petitioner on 3rd July, 1981 applied in a Delhi Court for restitution of conjugal rights. On 9th July, 1981, the petitioner filed the present petition for custody of the child.
(3.)We tried our best that the parties should reconcile. Learned counsel for the petitioner made a statement before us that the petitioner is prepared to go unconditionally to the respondent. We were also informed that the petitioner withdrew her application for restitution of conjugal rights pending in Delhi Court on 13th Oct., 1981 as a step towards reconciliation. The respondent, however, was not that co-operative and we failed in our efforts to bring about reconciliation. We still hope that the parties who are well educated will for the sake of the child, if not for themselves, forget the past and will turn a new leaf and start living together. However, at this stage when the parties have not reconciled, we have to decide their dispute about the custody of the child.