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IN THE HIGH COURT OF JAMMU AND KASHMIR
Sanjay Kumar Gupta, J.
Jyoti Khajuria – Appellant
Vs.
State And Others – Respondents
491-A Cr.P.C. No. 01 of 2017, MP No. 01 of 2017
Decided On : 28-09-2017
Habeas Corpus - Child Custody - Section 491 Cr.P.C.
Fact of the Case:
The petitioner, a mother, sought the recovery of her minor children from the custody of the father and alleged illegal confinement by the respondents. She argued that she was the legal guardian and entitled to the custody of the children due to strained relations and the father's threat to harm the children.
Finding of the Court:
The court dismissed the petition, stating that the children in the custody of their father cannot be considered illegally detained or confined as the father is the legal guardian. It also noted that the petitioner had an efficacious remedy under the Guardian and Wards Act to seek custody of the children.
Issues: The main issue was whether the petitioner, as the mother, had the right to seek the recovery of her minor children from the custody of the father and alleged illegal confinement by the respondents.
Ratio Decidendi: The court held that the case did not fall under any category of Section 491 Cr.P.C., which pertains to the power to issue directions of the nature of a habeas corpus.
Final Decision: The petition was dismissed.
1. Learned counsel for the petitioner has submitted that as per Hindu rites and ceremonies, the marriage between the petitioner and respondent No. 6, namely, Sandeep Singh came to be solemnized at Miran Sahib, Jammu on 23rd October, 2008. It has also been submitted that out of the wedlock, a female child, namely, Harleen Kour age 8 years was born on 29th July, 2009 and a male child, namely, Karmvir Singh aged 5 years was born on 29th December, 2011. The petitioner having qualification of B.Sc. (Medical) and MA English took all round care of the minor children and left no stone unturned in their brought up, love and affection. The relations between the petitioner and respondent No. 6 became strained and ultimately, the petitioner was thrown out of matrimonial home by respondent No. 6, 7 and 8, somehow on the intervention o the family and other relations. The children, namely Harleen Kour and Karnvir Singh were handed over to the petitioner in the 1st week of July, 2017. The petitioner is bearing all the expenses of the minor children by imparting tuitions to the students. It is because of strained relations between the petitioner and the respondent Nos. 6 to 8, the private respondents hatched a conspiracy and removed the minor children from the legal custody of the petitioner and despite resistance from the parents of the petitioner, the private respondents succeeded in taking minor children forcibly from the parental house of the petitioner on 07th September, 2017. The petitioner along with her father went to the Police Station, but the police concerned refused to take any action against the respondents because as per them, the respondent No. 6 is the father of the children and has a right to take them away.
2. It is further submitted that despite best efforts, the whereabouts of the children are not known to the petitioner and the petitioner has strong apprehension that because of strained relations of the petitioner with in-laws, the children have been removed with a well planned conspiracy and are kept in an illegal confinement by the private respondents. The petitioner being a helpless lady is unable to locate the whereabouts of the minor children and she being mother of the minor children is a legal guardian and is entitled to the custody of the children because of the age of the minors, the children require more love and affection of the petitioner at this particular age. It is humbly submitted that the minor children are required to be recovered through the Police, so that the life of the children may not be put in danger by the private respondents, who have no source of income to maintain the children. It is further submitted that even the close relations of the parties have also tried their best level to find out the whereabouts of the minor children, but all in vain. The minor children of the petitioner, whose whereabouts to the petitioner are not known since last four days and the petitioner is running from pillar to post to know the whereabouts of the children, but is unable to get any clue about them and under the circumstances. The petitioner has a strong apprehension that the minor children are likely to suffer mentally and physically and the petitioner is also suffering because of depriving from love and affection.
3. In order to live a dignified life, the petitioner is earning her livelihood by providing tuitions to the students and is providing all necessities to the minor children without there being any assistance from the private respondents. The welfare of the children is safe with the petitioner and she can better look after the needs and necessities of the children as compared to the respondent No. 6. The petitioner is being deprived of love and affection of the children. As the life of the children is in danger and the whereabouts are not known to the petitioner and in case, the recovery of the children is not effected through the official respondents, the petitioner will suffer irreparable los
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