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DELHI HIGH COURT
PRAKASH NARAIN, C. J. AND S. S. CHADHA, J.
SMT. NANDITA VIRMANI
VERSUS
RAMAN VIRMANI
Criminal Writ No.82 of 1982.
Decided on : 19-2-1982.
CUSTODY OF MINOR CHILD - WRIT OF HABEAS CORPUS - MAINTAINABILITY - WELFARE OF THE CHILD - GUARDIANSHIP AND WARDS ACT, 1890 - HINDU MINORITY AND GUARDIANSHIP ACT, 1956 - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, a mother, filed a petition under Article 226 of the Constitution of India seeking a writ of habeas corpus or in the nature of habeas corpus to get custody of her minor child from the respondent, her husband. The parties had been married in 1975 and had a son born in 1977. The couple had a stormy married life and the petitioner alleged physical and mental cruelty by the respondent. The respondent, on the other hand, alleged that the petitioner neglected her duties as a wife and mother. In July 1981, the petitioner left the matrimonial home with the child. The respondent filed a suit for injunction in the civil court to restrain the petitioner from removing the child from his custody. The petitioner gave an undertaking in the civil court not to remove the child without due process of law. The parties made several attempts at reconciliation, but all efforts failed. The petitioner then filed the present petition under Article 226.
Finding of the Court:
The court held that a petition under Article 226 of the Constitution is maintainable for the custody of a minor child, even though the remedy under the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, is available. The court observed that the dominant factor in such petitions is not the enforcement of the rights of warring parties but the protection of the rights of a child as a human being. The court further held that the paramount consideration in deciding the custody of a minor child is the welfare of the child, and not the legal rights of the parents. The court also held that the father being the natural guardian of his son, the custody of the father cannot be termed as illegal or unlawful restraint on the minor. However, the court held that the father can be removed from the guardianship of the child and can be prevented from discharging his duty and trust only if he is removed from guardianship under Sec.7 of the Guardians and Wards Act.
Issues: 1. Whether a petition under Article 226 of the Constitution of India for custody of a minor child is maintainable or should be entertained, particularly in view of the fact that the remedy under the Guardians and Wards Act and the Hindu Minority and Guardianship Act is available? 2. If a petition is maintainable, then in what circumstances can a writ of habeas corpus or in the nature of habeas corpus be issued? 3. If a petition under Article 226 of the Constitution is maintainable, whether it is the legal right of either parent or the interest and welfare of the minor which should be the predominant factor in deciding the matter 4. Whether mala fides of the petitioner in the circumstances of the present case disentitle her to relief by invoking Article 226 of the Constitution?
Ratio Decidendi: 1. The court held that a petition under Article 226 of the Constitution is maintainable for the custody of a minor child, even though the remedy under the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, is available. The court observed that the dominant factor in such petitions is not the enforcement of the rights of warring parties but the protection of the rights of a child as a human being. 2. The court held that a writ of habeas corpus or in the nature of habeas corpus can be issued if it is shown that there is either unlawful detention or custody or there is imminent or serious danger to the person detained, particularly if he is minor. 3. The court held that the paramount consideration in deciding the custody of a minor child is the welfare of the child, and not the legal rights of the parents. 4. The court held that the mala fides of the petitioner in the circumstances of the present case did not disentitle her to relief by invoking Article 226 of the Constitution.
Final Decision: The court made the rule absolute and directed that pending the decision of the guardianship case instituted by the petitioner, custody of the minor child would remain with the petitioner. The respondent was free to arrive at some arrangement with the petitioner to meet his son as often as possible, or seek direction from the District Judge, Delhi.
Prakash Narain, C.J.:- The petitioner and the respondent were married on Jan. 1, 1975 at Delhi. For some time they lived abroad but since Sept. 1976 have been living at Delhi. A son was born out of the wedlock on Jan. 24, 1977. It seems that the married life of the parties has been a stormy one. According to the petitioner she has been subjected to physical and mental cruelty by the respondent, that the respondent loses his temper and, in the words of the petitioner, he "works himself up to a state of frenzy using foul language" against the petitioner and her parents. According to the respondent the petitioner completely neglects the normal duties expected of a wife or a mother which results in friction between the parties. It is neither necessary nor desirable that we go into the allegations and counter-allegations. Suffice it to say that the couple is unable to lead a peaceful normal married life. The petitioner alleges that she had often been given corporal beating by the respondent which the respondent denies. In any case it is obvious that on July 12, 1981 some incident took place, and we do not say who was at fault, resulting in a grave situation arising between the husband and wife. On July 13, 1981, according to the petitioner, she was turned out of the house by the respondent but, according to the respondent, the petitioner left the house to stay with her parents. Their son remained in the custody of the respondent. We say that the son remained in the custody of the respondent without, in any way, dealing with the rival contentions of the parties as to why the son remained with the respondent. The petitioner wanted the custody of the child but the respondent was not willing to allow that. The child was as on July 13, 1981 under 5 years of age but was going to school. It appears that the respondent either under a genuine belief and having genuine apprehension or a misguided belief and ill-founded apprehension came to the conclusion that the petitioner may forcibly take her son away with her from the school. The relationship between the parties had deteriorated to such an extent that instead of acting in any other acceptable manner the respondent filed a suit for injunction in the civil courts at Delhi on July 20, 1981 seeking a permanent injunction against the petitioner for restraining her from removing the child and taking him away with her. An application under O.39, Rr.1 and 2 C.P.C. was also moved seeking a temporary injunction restraining the petitioner from removing the child from the custody of the respondent till the final decision of the suit. Notice of the application was ordered for July 24, 1981. On that date the petitioner put in appearance in the court of Shri V.K. Jain, Sub Judge 1st Class, Delhi, and made a statement to the effect that she will not remove the child physically without due process of law during the pendency of the suit. Shri V.K. Jain, Sub Judge 1st Class tried to have the dispute reconciled in chamber but the efforts were not fruitful. The respondent, however, in view of the undertaking given by the petitioner in the civil court did not press his application for temporary injunction. An interim arrangement to enable the petitioner to see her son and collect her clothings from her husband's house was worked out by Shri V.K. Jain on July 31, 1981 and it was duly recorded. Issues were also framed in the suit on the same date by the Sub Judge. According to the petitioner when she went to the respondent's house to meet her child, she was virtually prevented from meeting him and she came back unhappy and frustrated. It is in these circumstances that she has moved this court under Art.226 of the Constitution for issue of a writ of habeas corpus or in the nature of habeas corpus to get custody of her minor child.
2. The petition came up before us on Aug. 12, 1981 when we issued notice to the respondent in show cause why rule be not issued, as prayed by the petitioner, and also directed
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