The welfare of the minor child is the paramount consideration in custody disputes, and evidence should be led to determine the better position to take care of the minor children.

JUDGMENT

Ashok Kumar Verma, J. (Oral) -

CRM-W-1726-2022

1. Prayer in this application filed under Section 482 Cr.P.C. is for placing on record coloured copies of FDRs of Rs.1,00,000/- each in the names of minor daughters, namely, Manvi Sharma and Chancy Sharma, as Annexures R-3/5 and R-3/6.

2. Application is allowed as prayed for. Coloured copies of both the FDRs are taken on record as Annexures R-3/5 and R-3/6, subject to all just exceptions.

CRWP-3093-2022

3. Prayer in this criminal writ petition filed under Articles 226/227 of the Constitution of India, is for issuance of a writ in the nature of habeas corpus directing respondent No. 1 to get released the minor daughters (detenues) of the petitioner, namely, Chancy Sharma, aged around 04 years and Manvi Sharma, aged around 07 years from the illegal custody of respondent No. 3-Raj Sharma.

4. Learned counsel for the petitioner, inter alia, contends that petitioner-Sonia is the wife of respondent No. 3-Raj Sharma. Marriage of the petitioner with respondent No. 3 was solemnized on 23.01.2013 and two children, namely, Manvi Sharma and Chancy Sharma, were born out of the said wedlock. The petitioner along with minor daughter-Chancy Sharma was thrown out of the matrimonial home by respondent No. 3 and, thereafter, she is residing with her parents at Khuda Ali Shar (U.T., Chandigarh). It is alleged that on 21.03.2022, respondent No. 3 forcibly took Chancy Sharma along without her consent. Since then the petitioner is not permitted to meet her minor daughters. Petitioner is working as data entry operator in some private company and is earning around Rs.15,000/- per month. He further submits that both the detenues are minor aged around 07 and 04 years, therefore, the petitioner being biological mother is entitled to their custody.

5. Learned counsel for respondent No. 3 taking through the contents of reply filed on his behalf submits that if, the petitioner is aggrieved of having the custody of detenues, namely, Manvi Sharma and Chancy Sharma, then she can avail appropriate remedy available to her under the law and filing of the present petition is nothing but an abuse of the process of law. The petitioner has equally efficacious remedy of filing petition under the Guardians and Wards Act, 1890, for custody of the minor children. Therefore, the present habeas corpus petition is not maintainable. Respondent No. 3 is well off economically as he is owner of Dairy Farm, shops and is also running a Dhaba/hotel at his native place. He has sufficient sources to maintain the children and is not involved in any criminal activity. In support of her contentions, learned counsel for respondent No. 3 has relied upon judgment in (i) Sumedha Nagpal vs. State of Delhi and others, 2000 (9) SCC 745; Dr. Mrs. Veena Kapoor vs. Varinder Kumar Kapoor; 1981(3) SCC 92; Vishwanath vs. The State of U.P., 1960 AIR (Supreme Court) 67; CRWP-7913-2020, Poonam Kalsi vs. State of Punjab and others, decided on 20.04.2022; Ruby Devi vs. State of Bihar, 2020(2) PLJR 529; Rashmi Sharma vs. State of Rajasthan and others, 2021(2) RLW 1447; Sufla Zameer vs. The State of Jharkhand and others; 2021(4) J.C.R. 305; Dr. Sabyasachi Dutt vs. State of Maghalaya and others; 2015(43) RCR (Criminal) 375; Jyoti Khajuria vs. State and others, 2018 (2) RCR (Criminal) 991 and Smali Bagga vs. State of Punjab and others 1996(2) R.R.R. 202.

I have heard learned counsel for the parties and gone through the record.

6. Admittedly, the parties are husband and wife, having two minor daughters, namely, Manvi Sharma and Chancy Sharma, aged around 07 and 04 years, respectively. There is matrimonial discord between the parties and the minor children are in the custody of respondent No. 3-father. The instant petition has been filed by the petitioner-wife seeking custody of minor children on the ground that she being their biological mother is entitled to their custody. Vide order dated 16.05.2022, the matter was referred to Mediation and Conciliation Centre