Kulwinder Kaur vs State Of Punjab And Others

CRWP No. 1610 of 2013 (O&M) -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CRWP No. 1610 of 2013 Date of Decision : 24.04.2014

Kulwinder Kaur .......Petitioner

Versus

State of Punjab and others .....Respondents

CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH

1. Whether Reporters of the local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the digest?

Present: Mr. Viren Jain, Advocate for the petitioner.

Ms. Anmol Grewal, AAG, Punjab.

Mr. Harmanjit Singh, Advocate for respondents No. 4 to 8.

Mr. Prit Inder Pal Singh, Advocate for respondent No. 9.

R.P. Nagrath, J.

Petitioner and respondent No. 4 were married on

21.02.2007. Two children were born from the wedlock. The male

child Daljit Singh was about five years and the female child two

years old at the time of filing the instant petition.

2. The petitioner is seeking writ in the nature of habeas

corpus for a direction to respondents No. 4 to 9 to produce the

minor children from their illegal detention and custody.

3. During course of arguments, learned counsel for the

Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -2-

petitioner has confined his prayer with regard to immediate custody

of Jaspreet Kaur the female child born on 03.09.2011 and for the

male child it was submitted that the petitioner would take

appropriate recourse before the Guardian Judge/competent Court.

4. Respondents No. 5 and 6 are the parents of respondent

No. 4, respondent No. 7 his brother and respondent No. 8 the wife

of respondent No. 7. According to the case set up by respondents

Jaspreet Kaur was given in adoption to respondent No. 9 and his

wife.

5. The petitioner alleges that she was subjected to

immense physical and mental cruelty by her in-laws making her life

a hell. Detailed allegations have been made with regard to certain

incidents of maltreatment, on account of demand of dowry. The

petitioner was ultimately turned out of the matrimonial home on

11.11.2011 and was not allowed to take the minor children with her.

The petitioner went to her parents' house. Despite several efforts

respondent Nos. 4 to 6 refused to send back the minor children.

6. The petitioner made a complaint to the police authorities

and on the intervention of respectables and elders, respondent

No. 4 manifested to have realized the mistake and promised not to

repeat his ill deeds. With a hope to get back the children, petitioner

decided to live with respondent No. 4 in her matrimonial home.

However, respondents did not mend their ways and continued to

torture the petitioner. It came as a shock to the petitioner that the

children have been sent to unknown place and left with unknown Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -3-

persons. The respondents threatened to eliminate the petitioner

and warned her not to raise her voice of protest. She could not

bear anymore and went to her parents' house. Father of the

petitioner went to the in-law house of petitioner but he was abused

and insulted. It was learnt by the petitioner that the female child

has been sold in exchange of money to respondent No. 9 without

consent of the petitioner. The petitioner even made a complaint

(Annexure P-3) at the police station but the police has failed to take

any action.

7. Respondents No. 4 to 8 in their joint reply stated that

petitioner is in the habit of frequently leaving the matrimonial home.

She is quarrelsome and hot headed lady. Earlier she had problem

with joint family and to resolve the controversy, respondent No. 4

got a separate accommodation and left his aged parents. For

supporting this contention, the respondents placed on record

Annexure R-4/1, the ration card dated 19.03.2010 of separate unit

of the family comprising of the petitioner, respondent No. 4 and 1½

year old son. The female child was born to the petitioner on

03.09.2011. It is stated that the petitioner was not happy with the

birth of female child whereas that was a matter of great joy to

respondent No. 4 and his family members. However, the things

went wrong as the petitioner left the matrimonial home on

11.11.2011, leaving behind the newly born female child of 1½

month and also the son. Repeated requests were made to the

petitioner and her parents but she refused to join company of the Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -4-

husband. It was further stated that the petitioner in fact suggested

her husband to give the daughter in adoption as she had made up

her mind not to return to the matrimonial home and look after the

children.

8. It was further stated that on 05.01.2012, the female

child was adopted by respondent No. 9 and his wife as they were a

issueless couple. This adoption ceremony was held in the

presence of 'Shri Guru Granth Sahib Ji' as per Sikh rites and

ceremonies with the approval of Sangat. The certificate in proof of

the aforesaid ceremony is Annexure R-4/2.

9. After a period of more than one year of the said

adoption, the petitioner joined the company of her husband and the

minor son but again left the matrimonial home in the month of

March, 2013. Till then she never asked for the custody of her

daughter. Thereafter, the petitioner is said to have made a

complaint before Women Cell, Ludhiana where she arrived at a

settlement and admitted that the child had already been adopted by

respondent No. 9. That compromise document dated 19.03.2013 is

Annexures R-4/3. However, due to temperamental differences, the

petitioner is stated to have left the matrimonial home in the moth of

July, 2013. Respondent No. 4 and his family approached the

petitioner but she refused to join their company. Ultimately,

respondent No. 4 filed a petition under Section 9 of Hindu Marriage

Act for restitution of conjugal rights in the Matrimonial Court at

Ludhiana. Notice in that case was issued to the petitioner for Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -5-

19.11.2013 by the Matrimonial Court.

10. Respondent No. 9 has adopted the reply filed by

respondents No. 4 to 8.

11. The petitioner also filed an additional affidavit to give

response to the reply. It is stated that the plea of alleged adoption

is after thought and procured one. It is stated that the petitioner

never arrived at any settlement wherein she gave consent for the

alleged adoption. It was only during the period when the petitioner

resumed company of her husband, that she was informed about

giving of the female child in adoption in her absence and it was

assured to take back the child from respondent No. 9. In the

meantime, respondent No. 7 took responsibility to arrange meeting

of child till the child was taken back. When the petitioner raised

serious protest for the illegal act of respondents No. 4 to 8, she was

threatened with dire consequences for raising voice of protest.

According to the petitioner, she was ultimately turned out of the

matrimonial home sometime in the month of May, 2013.

12. I have heard learned counsel for the petitioner, the

State counsel, counsel for respondents No. 4 to 8 and also the

counsel for respondent No. 9 and given my thoughtful consideration

to the controversy.

13. As per document Annexure R-4/2, the female child was

given in adoption by respondent No. 4 alone while the petitioner

had already left the matrimonial home. It was contended for

respondents No. 4 to 8 that respondent No. 9 is a family friend of Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -6-

these respondents. But as per reply of respondents No. 4 to 9 and

the document of compromise, there is nothing to suggest how

respondent No. 9 was known or related to the family of respondents

No. 4 to 8.

14. The bone of contention for the respondents is that, it

was inhuman act on the part of petitioner to abandon 40 days old

child by leaving the matrimonial home. However, from facts it

cannot be prima facie believed that mother of a 40 days child would

leave it with the father voluntarily unless the circumstances

compelled her to do so. It cannot be accepted that a mother would

feel unhappy with the birth of a female child. It is primarily due to

marital discord or may be the harassment, that the petitioner was

forced to leave the matrimonial home. The petitioner and

respondent No. 4 had started living separate from the other family

members in the year 2010 even before the birth of Jaspreet Kaur.

The document Annexure R-4/3 dated 19.03.2013 seems to have

been executed by the petitioner with a hope of restoring martial ties

and the promise of getting back the female child.

15. Learned counsel for respondents referred to paragraph

Nos. 9 and 10 of the compromise dated 19.03.2013 Annexure

R-4/3, which read as under:-

"9. That Harpinder Singh will be liable to take his wife

to her parental home or other relatives place etc.

in good bad times and Kulwinder Kaur will also

visit her parental house or any other relatives with Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -7-

the prior consent of her husband.

10. That Maninder Singh r/o Jaipur who is brother-in-

law of Kulwinder Kaur took responsibility that

whenever Kulwinder Kaur wants to meet her

daughter then he is liable to meet her who is

given in adoption by Harpinder Singh."

16. Para 10 of Annexure R-4/3 as quoted above does not

indicate that petitioner had consented to the said adoption.

Learned counsel for respondents, however, referred to the affidavit

of petitioner (Annexure R-4/4) in which she admitted that the female

child was given in adoption to one Abhinav Singh resident of

Meerut. Annexure R-4/4 does not bear any date. From original of

this document on record, it is not disputed that this document in the

nature of affidavit was not attested by any authority. Such a

document, thus, can be safely ignored as manipulated. The

conduct of private respondents in preparing these documents when

the petitioner returned to the matrimonial home and stayed for a

short while seem to be only a clever devise to enable them to set

up a plea of regular adoption by respondent No. 9 and his wife.

17. The document Annexure R-4/2 has no legal sanctity as

such an adoption is in breach of provisions of Hindu Adoptions and

Maintenance Act, 1956 (for short 'the Act'). Sub-section (1) of

Section 9 of the Act says that no person except the father or mother

or the guardian of a child shall have the capacity to give the child in

adoption. Sub-section (2) of Section 9, further says that subject to Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -8-

the provisions of sub-section(4), the father or the mother, if alive,

shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either

of them save with the consent of the other unless one of them has

completely and finally renounced the world or has ceased to be a

Hindu or has been declared by a court of competent jurisdiction to

be of unsound mind.

18. It would be relevant to refer to Section 7 of the Act of

1956, which reads as under:-

"7. Capacity of a male Hindu to take in adoption -

Any male Hindu who is of sound mind and is not a

minor has the capacity to take a son or a daughter

in adoption:

Provided that, if he has a wife living, he shall

not adopt except with the consent of his wife

unless the wife has completely and finally

renounced the world or has ceased to be a Hindu

or has been declared by a court of competent

jurisdiction to be of unsound mind."

19. Hon'ble Supreme Court in Brijendra Singh vs. State of

M.P. and another, AIR 2008 Supreme Court 1056, has held that

for a valid adoption wife's consent must be obtained prior to

adoption and cannot be subsequent to an act of adoption as per

proviso to Section 7 of the Act. The proviso lays down consent as a

condition precedent to an adoption which is mandatory and Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -9-

adoption without wife's consent would be void. Similar, therefore,

should be interpretation of the proviso to sub-section (2) of

Section 9. Therefore, prima faice the document of adoption set up

by private respondents seems to be not in accordance with

provisions of the Act.

20. Having found the custody of female child of petitioner,

with respondent No. 9 and his wife as illegal the petitioner is bound

to be granted the relief prayed for.

21. Section 6 of the Hindu Minority and Guardianship Act,

1956 says that the natural guardian, in respect of the minor's

person as well as in respect of the minor's property are -

(a) in the case of a boy or an unmarried girl - the

father, and after him, the mother: provided that the

custody of a minor who has not completed the

age of five years shall ordinarily be with the

mother;

(b)(c)(d)..........................................................................

22. It was next contended for the respondents that the

petitioner has relied upon a fabricated document and thus not

entitled to invoke the discretionary jurisdiction of this Court. It is

submitted that the complaint (Annexure P-3) statedly made by the

petitioner to the police on 24.07.2013 is for offences under Sections

363, 372 and 373 read with Section 34 and 120-B IPC whereas the

complaint was in fact only under Sections 498-A and 406 read with

Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -10- Section 34 and 120-B IPC. Learned counsel for respondents No. 4

to 8 has placed on record the copy of said application received by

the police on 24.07.2013 during arguments. It is submitted that

copy of the complaint (Annexure P-3) was received by the police

when notice of motion was issued in the instant petition as per

endorsement made thereon. The copy received by the police has

also been placed on record by the learned counsel.

23. I am unable to agree with the above contentions as no

such specific stand was taken in the reply filed by respondents.

Learned petitioner's counsel submitted and rightly so that there

may be some mistake in mentioning the date of complaint

(Annexure P-3) but in the complaint filed under Section 498-A and

406 IPC it was specifically stated that a complaint against the

selling of the minor daughter for ` 5 lacs by respondent No. 4 for

unlawful and immoral purposes, was submitted by the petitioner on

12.06.2013 upon which no action was taken by the police. So in no

way this Annexure P-3 can be said to be a fabricated document.

Due to inaction of police on the complaint, Annexure P-3, the

respondents cannot claim any advantage.

24. Learned counsel for the contesting respondents,

however, placed reliance upon Sumedha Nagpal vs. State of

Delhi and others, 2000 (9) SCC 745, where the mother was found

to have abandoned the child and went to her parent's house and

the child remained in custody of the husband to her exclusion for

nearly seven months. It was held that any disturbance by changing Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -11-

the custody would not be conducive for the welfare of the child and

the petitioner before Hon'ble Supreme Court was relegated to the

remedy to file appropriate proceedings leaving all the matters

arising in the case to be decided by appropriate forum irrespective

of whatever was stated during the course of order passed by the

Hon'ble Supreme Court.

25. A similar question was raised before the Division bench

of this Court in Preet Ranjan Kaur vs. Harjit Singh and another,

2013 (2) HLR 22, wherein reference was made to subsequent

decision of Hon'ble Supreme Court in Gaurav Nagpal vs.

Sumedha Nagpal, (2009) 1 SCC 42.

26. The conclusion in paragraphs No. 50, 51 and 52 of

Gaurav Nagpal's case (supra) are reproduced as under:-

"50. When the Court is confronted with conflicting

demands made by the parents, each time it has

to justify the demands. The Court has not only to

look at the issue on legalistic basis, in such

matters human angles are relevant for deciding

those issues. The Court then does not give

emphasis on what the parties say, it has to

exercise a jurisdiction which is aimed at the

welfare of the minor. As observed recently in

Mausami Moitra Ganguli case, the court has to

give due weightage to the child's ordinary

contentment, health, education, intellectual Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -12-

development and favourable surroundings but

over and above physical comforts, the moral and

ethical values have also to be noted. They are

equal if not more important than the others.

51. The word "welfare" used in section 13 of the Act

has to be construed literally and must be taken in

its widest sense. The moral and ethical welfare of

the child must also weigh with the Court as well

as its physical well being. Though the provisions

of the special statutes which govern the rights of

the parents or guardians may be taken into

consideration, there is nothing which can stand in

the way of the Court exercising its parents patriae

jurisdiction arising in such cases."

52. The trump card in the appellant's argument is that

the child is living since long with the father. The

argument is attractive. But the same overlooks a

very significant factor. By flouting various orders,

leading even to initiation of contempt

proceedings, the appellant has managed to keep

custody of the child. He cannot be beneficiary of

his own wrongs. The High Court has referred to

these aspects in details in the impugned

judgments."

Hon'ble Supreme Court in that case also referred to Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -13-

Howarth v. Northcott, 152 Conn 460, on the following

observations:-

"The employment of the forms of habeas

corpus in a child custody case is not for the

purpose of testing the legality of a confinement or

restraint as contemplated by the ancient common

law writ, or by statute, but the primary purpose

is to furnish a means by which the court, in

the exercise of its judicial discretion, may

determine what is best for the welfare of the

child, and the decision is reached by a

consideration of the equities involved in the

welfare of the child, against which the legal

rights of no one, including the parents, are

allowed to militate.

It was also indicated that ordinarily, the

basis for issuance of a writ of habeas corpus is an

illegal detention; but in the case of such a writ

sued out for the detention of a child, the law is

concerned not so much with the illegality of the

detention as with the welfare of the child."

27. The Apex Court in Mausami Moitra Ganguli v. Jayant

Ganguli, (2008) 7 SCC 673, held that it is the welfare and interest

of the child and not the rights of the parents which is the

determining factor for deciding the question of custody. The Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -14-

question of welfare of the child has to be considered in the context

of the facts of each case and decided cases on the issue may not

be appropriate to be considered as binding precedents.

28. It is contended by the learned counsel for respondent

No. 9 that the child is in custody of respondent No. 9 and his wife

for more than two years and it would be a great hardship for the

respondent No. 9 and his wife in case the custody of child is now

disturbed when the child has been looked after properly by

respondent No. 9.

29. The above contention, though seems to be attractive,

cannot be granted any sanctity in these proceedings when it has

been found that the transfer of custody of the child to respondent

No. 9 and his wife was not legal as claim for adoption has been

prima facie found to be violative of the provisions of the Act of

1956. When respondents No. 4 to 8 have themselves parted with

the company of the child it would be always in the welfare of the

child to give custody of the child, who is less than three years of

age, to the mother.

30. It would be quite useful to briefly refer to the principle of

law applicable in such cases while dealing with this kind of sensitive

and delicate issue. In Sarita Sharma v. Sushil Sharma, (2000) 3

SCC 14, the Hon'ble Supreme Court held that ordinarily a female

child should be allowed to remain with the mother, so that, she can

be properly looked after. The girl child in that case was 5 years old.

31. Once it is found that the child is prima facie in illegal Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -15-

custody of respondent No. 9 and his wife the writ in the nature

prayed for has to be allowed. In fact the care and warmth of both

the parents is required during the infancy of child at impressional

age but the scales in the instant petition till in favour of the mother

who had all along been trying to settle her matrimonial life. If the

petitioner has somewhat delayed in coming to this Court that

cannot deprive her of the right to get back the child as it seems

from the material placed on record, she even made serious efforts

to resume company of her husband.

32. Learned counsel for respondents No. 4 to 8 submitted

that a petition for restitution of conjugal rights (Annexure R-4/5) was

filed by respondent No. 4 on 24.08.2013, in which there was a

specific plea that the female child was given in adoption with the

consent of petitioner. That will not in any way impute any

knowledge of adoption given to respondent No. 9 and his wife as

the instant petition was filed on 30.08.2013 i.e. just few days

therefrom.

33. The other contention by the contesting respondents is

that wife of respondent No. 9 has not been impleaded as

respondent. This contention is untenable because when this matter

was listed on 03.10.2013, it was stated that the child is in custody

of respondent No. 9, who is being represented in this case and was

directed to produce the child in the Court. The child was produced

by the wife of respondent No. 9 on 10.10.2013. In the

circumstances of the case the wife of respondent No. 9 is Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -16-

effectively represented in the instant petition.

34. In view of the above, it is found expedient and

appropriate that the custody of the female child Jaspreet kaur is

restored to the mother. The instant petition is allowed and it is

directed that respondent No. 9 and his wife would hand over the

child to the petitioner within a period of one month of receipt of

certified copy of this order. The respondents No. 4 to 8 would also

assist in implementing this direction. The State through its

functionaries especially respondent No. 2-Commissioner of Police,

Ferozepur would ensure the compliance of this order. Respondent

No. 4 would have fortnightly visitation right to meet the minor

daughter on Saturdays from 11.00 a.m. to 04.00 p.m. For fixing the

date and time of such meeting, respondent No. 4 may apply to the

Guardian Judge for appropriate directions. Respondent No. 4

would also be at liberty to apply to the Guardian Judge for weekly

visitation rights after the above arrangement continues satisfactorily

for four months continuously.

35. The aforesaid arrangement is, however, temporary

measure till the matter is finally decided on an application that may

be filed before the Guardian Judge/competent Court. The

petitioner would also be at liberty to seek custody of the male child

before the competent Court.

36. This Court is quite sanguine that on moving such

application(s) by the petitioner or respondent No. 4, the Guardian

Judge/competent Court would dispose of the matter expeditiously. Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh CRWP No. 1610 of 2013 (O&M) -17-

37. Respondent No. 9 and his wife would also be at liberty

to seek appropriate remedy before the competent Court for

establishing a valid adoption.

April 24, 2014 ( R.P. NAGRATH ) jk JUDGE

Jitender kumar 2014.05.01 17:08 I attest to the accuracy and integrity of this document Chandigarh