Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 411

SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Nirmala – Appellant
Versus
Kulwant Singh & Ors. – Respondents
Criminal Appeal No. 2194 of 2022
Decided On : 03-05-2024

Advocates appeared:
For the Appellant(s) : Mr. Narender Hooda, Sr. Adv. Mr. Shaurya Lamba, Adv. Mr. Shiv Bhatnagar, Adv. Ms. Rashi Choudhary, Adv. Dr. Surender Singh Hooda, AOR
For the Respondent(s): Ms. Rukhmini Bobde, Adv. Mr. Kanwar Udai Bhan Singh Sehrawat, Adv. Mr. Kailashi Uday Kapoor, Adv. Ms. Neelam Singh, AOR Ms. Soumya Priyadarshinee, Adv. Mr. Amit Kumar Srivastava, Adv. Mr. Amlaan Kumar, Adv. Dr. Hemant Gupta, A.A.G. Ms. Payal Gupta, Adv. Mr. Shivang Jain, Adv. Ms. Nitikaa Guptha, Adv. Ms. Monica Anand Kumar, Adv. Dr. Monika Gusain, AOR

IMPORTANT POINT
Custody of child – No hard and fast rule can be laid down insofar as maintainability of a habeas corpus petition in matters of custody of a minor child is concerned – As to whether writ court should exercise its extraordinary jurisdiction under Article 226 of Constitution of India or not will depend on facts and circumstances of each case.

Headnote:
Constitution of India – Article 226/227 – Guardians and Wards Act, 1890 – Section 7 – Habeas Corpus Petition – Respondent-father seeking release of minor child from alleged illegal custody of appellant-grandmother – High Court held that welfare of child will be best in hands of father – High Court further directed that appellant-grandmother and her husband shall also have visiting rights – No hard and fast rule can be laid down insofar as maintainability of a habeas corpus petition in matters of custody of a minor child is concerned – As to whether writ court should exercise its extraordinary jurisdiction under Article 226 of Constitution of India or not will depend on facts and circumstances of each case – It is not a case that appellant-grandmother had illegally kept custody of minor child – It is respondent-father who had placed custody of minor child with appellant-grandmother – In peculiar facts and circumstances of case, High Court ought not to have entertained habeas corpus petition under Article 226 of Constitution of India – Since a detailed enquiry including welfare of minor child and his preference would have been involved, such an exercise could be done only in a proceeding under provisions of Guardians and Wards Act, 1890 – Compelling a minor child at tender age of 7 years to withdraw from custody of his grandparents with whom he has been living for last about 5 years may cause psychological disturbances – Exercise for promoting bond between minor child and respondent-father in a graded manner and thereafter considering grant of custody of minor child to respondent-father taking into consideration paramount interest of welfare of minor child would be required to be done in present matter – Such an exercise would not be permissible in extraordinary jurisdiction under Article 226 of Constitution of India – High Court was not justified in entertaining petition under Article 226 of Constitution of India – Impugned judgment and order of High Court quashed and set aside and writ petition filed by respondent-father dismissed. (Paras 3.12, 16, 18, 19, 20, 21 and 22)
Facts of the case:
Present appeal is filed against final judgment and order of Punjab and Haryana High Court dated 23rd August, 2022. High Court vide impugned judgment allowed petition filed under Article 226/227 of Constitution of India, by respondent No. 1 who is father of detenu/minor child and directed appellant herein, maternal grandmother to hand over custody of minor child to respondent-father.
Findings of Court:
No observation in impugned judgment and order and in present judgment and order would be binding on proceedings if taken by respondent-father under the Guardians and Wards Act, 1890 and the proceedings would be decided in accordance with law on its own merits. In the event respondent-father files an application under provisions of Guardians and Wards Act, 1890, competent Court shall decide the same expeditiously.
Result : Appeal allowed.

1. The present appeal is filed against the final judgment and order of the Punjab and Haryana High Court,¹[Hereinafter, High Court] dated 23rd August, 2022. The High Court vide the impugned judgment allowed the petition filed under Article 226/227 of the Constitution of India, by the respondent No. 1 herein,²[Hereinafter, respondent-father] who is the father of the detenu/minor child and directed the appellant herein,³[Hereinafter, appellant-grandmother] i.e., the maternal grandmother to hand over the custody of the minor child to respondent-father.

2. Aggrieved by the impugned judgment, the appellant-grandmother has filed the present petition. Notice was issued by this Court on 23rd September, 2022 and it was directed that in the meantime, the child shall remain in the custody of the appellant-grandmother. Thereafter, leave was granted by this Court on 21st November, 2022 and the interim order was confirmed to last until the decision of this appeal.

3. The facts, in brief, giving rise to the present appeal, are as follows:

3.1 The marriage took place between Dr. Kulwant Singh (respondent-father) and one Sangeeta on 5th July, 2014. This marriage was the second marriage for both of them.

3.2 From the marriage, one child, namely Garvit,⁴[Hereinafter, minor child] was born on 5th July, 2015.

3.3 In 2019, the mother of the minor child, Sangeeta, went missing and so, on 5th April, 2019, a First Information Report,⁵[FIR No. 108 @ P.S. Civil Lines, Rohtak dated 5th April, 2019 (hereinafter, FIR)] was registered under Section 346 of the Indian Penal Code, 1860.,⁶[Hereinafter, IPC] On the next day, i.e., 6th April, 2019, father of Sangeeta (who is the husband of the appellant-grandmother), lodged a complaint at the Women police Station, Rohtak, stating that his daughter was continuously harassed by her husband and in-laws, and that since his daughter is missing since yesterday, he fears that her husband and in-laws have done something wrong with her.

3.4 On 9th April, 2019, Sangeeta’s body was found in a canal and so, Section 304B IPC was added in the FIR. The matter was further investigated by the police and thereafter, ultimately the police prepared a cancellation report in the FIR in the year 2019, and the said cancellation report was submitted to the competent Court on 31st August, 2021.

3.5 During the investigation phase, the respondent-father had voluntarily handed over the minor child to the appellant-grandmother. Not only that, but the respondent-father had by way of an affidavit dated 1st May, 2019, appointed the appellant-grandmother as “Guardian” of the minor child and the “Caretaker” of a property,⁷[Plot No. D-102 situated at Anantpuram, Jind Road, The Indraprastha Cooperative House Building Society Ltd., Rohtak] that was gifted by the Aunt of respondent-father (Birmi Devi) to the minor child. Since then, the custody of the minor child has been with the appellant-grandmother.

3.6 On 29th July, 2019, the respondent-father filed an application/complaint,⁸[No. 3312] with the Child Welfare Committee, Rohtak,⁹[Hereinafter, CWC] and sought the custody of the minor child on the ground that the appellant-grandmother took the minor child by cheating and fraud.

3.7 The CWC took note of the affidavit recording the interaction with the minor child in the counselling session and recorded the statement of the appellant-grandmother, respondent-father, Uncle and Aunt of the respondent-father and Aunt of the minor child/sister of the respondent-father (one Sunita Devi).

3.8 Based on the statements/counselling affidavits and other documents available on record, the CWC vide order dated 5th February, 2020, decided that the minor child is “a child in need of care and protection” as defined under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015,¹⁰[Hereinafter, JJ Act] and the respondent-father being the biological father and employed in a reputed government post, is able to take care and nurture the child, in result, it d