Yadwinder Singh vs State of Punjab and others

MANISHA BATRA, J. (Oral)

The present petition has been filed under Articles 226/227 of the Constitution of India seeking issuance of a writ in the nature of habeas corpus, directing the official respondents to secure the release of minor child Arpan Kaur, daughter of the petitioner, from the alleged illegal custody of the private respondents and to produce her before this Court. A further prayer has been made for issuance of appropriate directions to respondents No.2 and 3 for protection of the life and liberty of the petitioner, appointment of a Warrant Officer to search and recover the child and hand over her custody to the petitioner.

Brief facts of the case, as emanating from the petition, are that the marriage of the petitioner with respondent No.4-Baljinder Kaur was solemnized on 05.01.2022 according to Sikh rites and rituals. Out of the wedlock, a daughter, namely Arpan Kaur, was born on 25.10.2022. After some time, differences arose between the petitioner and respondent No.4 and their relations became strained. Both the parties, thereafter, decided to live separately and executed a compromise dated 17.01.2023, whereby it was agreed that the minor daughter would remain in the custody of the petitioner and the petitioner would pay Rs.10 lakhs to respondent No.4 as life-time alimony in lieu of divorce. Thereafter, the petitioner and respondent No.4 filed a petition under Section 13-B of the Hindu Marriage Act seeking divorce by mutual consent. As per the settlement, respondent No.4 received Rs.5 lakhs as the first instalment and a further amount of Rs.30,000 in lieu of a gold ring. The remaining amount of Rs.5 lakhs was to be paid at the time of the second motion. However, respondent No.4 subsequently sought withdrawal of the divorce petition on the ground that there was no mutual consent and returned the cheque of Rs.5 lakhs. The divorce petition was consequently dismissed by the learned Family Court vide order dated 28.11.2023. It is further the case of the petitioner that respondent No.4 was having an extra-marital relationship with respondent No.10 and, after withdrawal of the divorce petition, she refused to abide by the compromise and took the minor child away from the petitioner. It is further alleged that respondent No.4 thereafter went abroad, leaving the child with her mother, respondent No.5-Jasvir Kaur. The petitioner alleges that respondent No.5 is an old-aged lady and is not in a position to properly take care of the child. The petitioner has further pleaded that he is working as a Manager in a restaurant at Mohali and is earning Rs.50,000/- per month. He claims to be financially capable of taking proper care of his daughter and has also placed on record receipts/screenshots showing payments allegedly made towards the medical treatment and other expenses of the child. He further alleges that the private respondents have failed to provide proper food, clothes and other basic amenities to the child. The petitioner had approached the concerned police authorities and requested that the child be released from the custody of the private respondents, but no effective action was taken. The petitioner, therefore, has approached this Court seeking the aforesaid reliefs.

It is argued by learned counsel for the petitioner that the custody of minor Arpan Kaur with the private respondents is illegal and unlawful. He has further argued that as per the compromise dated 17.01.2023, the child was to remain in the custody of the petitioner and respondent No.4 subsequently took her away against the terms of the compromise. It is further argued that respondent No.4 is residing abroad and has left the child with her old aged mother, respondent No.5, who is not in a position to properly look after the minor. The petitioner is the father of the minor. He is earning an amount of Rs.50,000/- per month and is capable of providing proper care and treatment to the child. The petitioner has also been bearing expenses towards the medical treatment of the minor. Despite the petitioner approaching the police authorities for securing custody of his daughter, no effective action was taken. Learned counsel for the petitioner has, therefore, argued that the continued custody of the minor with the private respondents amounts to illegal detention and prayed that the child be directed to be produced before this Court and released into the custody of the petitioner. With these submission, it is urged that the petition deserves to be allowed. To fortify his arguments, learned counsel for the petitioner has relied upon Tejaswini Gaud and another v. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42, Somprabha Rana v. State of Madhya Pradesh and others, (2024) 9 SCC 382 and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and others, 2022 SCC OnLine SC 885.

Reply has been filed on behalf of respondent No.4. It is argued by learned counsel for respondent No.4 that the present petition is not maintainable as the minor child is in the lawful custody of her biological mother. It is further argued that the petitioner has failed to show any illegal detention, unlawful restraint, neglect or danger to the child. Mere paternity does not give the petitioner an automatic right to seek a writ of habeas corpus. It is further submitted that after the first motion statements were recorded on 06.03.2023, the petitioner himself requested respondent No.4 to keep the child with her, stating that the child was of tender age and that he was unable to take proper care of her. Thereafter, he neither took custody of the child nor made any genuine arrangement for her care and maintenance. Respondent No.4 had disclosed before the Family Court that the child was in her custody and, therefore, the allegation that she had forcibly taken away or illegally detained the child is false. No competent Court has passed any order granting custody of the child to the petitioner. The minor is presently below five years of age. She is studying in school and has continuously remained in the care of respondent No.4 and her maternal family. The child is settled in her present environment and is receiving proper food, education, medical care, love and affection. Shifting her custody to the petitioner would not be in her welfare and best interests.

Learned counsel for respondent No. 4 has further argued that the petitioner has suppressed material facts, including the Family Court proceedings and the order dated 06.01.2026, whereby the custody of the minor with respondent No.4 was recorded and the petitioner was directed to pay interim maintenance and litigation expenses. It was submitted that the petitioner has failed to comply with the said order. The petitioner has an efficacious remedy before the competent Family Court/Guardianship Court, where the question of custody can be decided on the basis of the welfare and best interests of the child. It is, therefore, prayed that the petition be dismissed.

This Court has heard the rival submissions of learned counsel for the parties.

The child is admittedly of tender age and the dispute between the parties is essentially one relating to custody, which requires a proper assessment of the welfare and best interests of the minor. The mere fact that the petitioner is the father of the child or that a compromise dated 17.01.2023 was entered into between the parties per se does not warrant handing over custody of the child to the petitioner in the present proceedings, particularly when the matrimonial dispute and the question of custody have remained contested. The allegations regarding the respondent No.4's conduct and the alleged inability of respondent No.5 to take care of the child are disputed questions which cannot appropriately be adjudicated in the limited jurisdiction exercised in a petition for habeas corpus. This Court, therefore, finds no ground to exercise its extraordinary jurisdiction for disturbing the existing custody of the minor.

The judgments relied upon by learned counsel for the petitioner do not advance his case. Tejaswini Gaud’s case (supra) recognises the jurisdiction of the High Court in appropriate cases where the custody of a minor is with a person having no legal authority to retain such custody. Hence, the facts of the said case were materially different. Somprabha Rana’s case (supra), on the other hand, reiterates that in matters of child custody, the welfare of the minor is paramount and that the extraordinary jurisdiction of the High Court should not ordinarily be exercised to disturb settled custody where a detailed inquiry is required. Likewise, Rajeswari Chandrasekar Ganesh’s case (supra) does not lay down that custody is to be transferred merely on the basis of the legal right of a parent, particularly where the welfare of the child requires a detailed examination by the competent forum.

However, keeping in view the tender age of the minor and the fact that the petitioner is her father, this Court considers it appropriate to ensure that the petitioner is not deprived of meaningful contact with his daughter. Accordingly, the petitioner shall be entitled to visitation rights to meet the minor child at a mutually convenient place and time, to be arranged by the parties, at least once every fortnight, subject to the comfort and routine of the minor. The respondent No.4 shall extend necessary cooperation in facilitating such interaction and shall not unnecessarily obstruct the same.

It is clarified that the observations made herein are confined to the adjudication of the present habeas corpus petition and shall not be construed as an expression of opinion on the merits of the rival claims for permanent custody. The petitioner shall be at liberty to approach the appropriate Family Court/Guardianship Court for seeking custody of the minor child or any further or enhanced visitation/access in accordance with law. The competent Court shall decide such proceedings independently, on the basis of the material placed before it and keeping the welfare and best interests of the minor as the paramount consideration.

For the reasons recorded above, no case for issuance of a writ of habeas corpus is made out. The present petition is, accordingly, dismissed, with the aforesaid visitation rights and liberty to the petitioner to avail his appropriate remedy in accordance with law.