Kuldip Rai vs Pritam Dass Dutta and anr.

Ajit Singh Bains, J.

Kuldip Rai, petitioner, husband of Smt. Shashi Bala (respondent No. 2) has filed this habeas corpus petition for the custody of his minor son Rinkoo. His allegation is that he was illegally retained by the respondents. According to him, he was married with respondent No. 2 on Ist March, 1978 and resided together till 21st April, 1978 and thereafter respondent No. 2 did not return to the matrimonial house without any justifiable reasons and that their son Rinkoo was born on 5th December, 1978 who is about five years and that he is entitled to the custody of the child.

It is admitted by respondent No. 2 Smt. Shashi Bala (wife) that she was married to the petitioner in the year 1978 and lived together upto 21st April, 1978 as husband and wife and that thereafter she was sent by him to her parents house and did not come to take her back.

I also recorded the statements of the petitioner and respondent No. 2 today. Respondent No. 2 was willing to go with the petitioner even today and live together him, but the petitioner did not agree. I also tried their compromise, but the petitioner was not willing to take his wife, although the wife was willing to go with the husband and also tendered her apology if he was offended. I asked the child if he was willing to go with the petitioner, but he started weeping and, on seeing the petitioner, he clung to his mother. A certificate from Nalanda Public School, Mahan Singh Gate, Amritsar, where the child is studying, has been produced before me. According to this certificate, the child is studying in the Nursery Class. The child is well looked after by her mother and her parents. He was well dressed. The paramount consideration is the welfare of the minor child. In Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, A.I.R. 1982 S.C. 792, their Lordships of the Supreme Court observed as under :

"It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of the child with the respondent cannot be said to be illegal."

In the present case, the father only saw the child today in this Court. Earlier he never bothered for the child either on his birth or thereafter. Thus, in my view, the welfare of the child lies if he continues living with his mother and I hold that Rinkoo is not in illegal custody of the respondents.

For the reasons recorded, no case is made for directing the respondents to hand over the custody of minor child Rinkoo to the petitioner. Accordingly the petition is dismissed. The petitioner is directed to pay Rs. 1000/ (One Thousand) as costs to respondent No. 2, who came to Chandigarh, twice along with the child from Amritsar.