Gautam Khanna vs State of Punjab - 2022 Supreme(P&H) 1867

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1867

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasgurpreet Singh Puri, J.
Gautam Khanna – Appellant
Versus
State Of Punjab & Ors. – Respondents
CRWP-1068 of 2022 (O&M)
Decided On : 16-05-2022

Advocates appeared:
Mr. Vinod Ghai, Senior Advocate with Mr. Edward George Masih, Advocate and Mr. J.S. Mehndiratta, Advocate, for the Appellant; Mr. Randhir Singh Thind, Deputy Advocate General, Punjab., Mr. A.P.S. Doel, Senior Advocate with Mr. Himmat Deol, Advocate and Mr. Vishal Rattan Lamba, Advocate, for the Respondent.

Headnote:
Habeas Corpus - Custody Dispute - Hindu Minority and Guardianship Act, 1956 - [HABEAS CORPUS] - [CUSTODY DISPUTE] - [Article 226 of the Constitution of India, Hindu Minority and Guardianship Act, 1956] - The court discussed the welfare of the children, the financial status of the parties, and the circumstances of the case to determine the custody of the children. The court emphasized that the welfare of the children is of paramount consideration and should be the dominant factor in determining custody. The court also considered the doctrine of parens patriae and the relationship of the child with the person seeking custody. The judgment allowed the custody of the children to be handed over to the petitioner, with visiting rights granted to the maternal grand-parents.
Fact of the Case:

The petitioner sought a writ of Habeas Corpus to produce his minor children who were in the custody of their maternal grand-parents. The petitioner's wife had passed away, and a dispute arose regarding the custody of the children. The petitioner argued that he was the natural guardian and capable of providing for the children's welfare.
Finding of the Court:

The court found that the welfare of the children is the dominant factor in determining custody. It considered the financial status of the parties, the relationship of the children with the petitioner, and the circumstances of the case. The court concluded that the children's welfare would be best served by granting custody to the petitioner, with visiting rights granted to the maternal grand-parents.
Issues: The main issue was the determination of the custody of the minor children in a dispute between the petitioner and the maternal grand-parents. The court also considered the pendency of a petition under the Hindu Minority and Guardianship Act, 1956 at the Family Court, Agra.
Ratio Decidendi: The court emphasized the welfare of the children as the paramount consideration in determining custody. It considered the financial status of the parties, the relationship of the children with the petitioner, and the circumstances of the case. The court also applied the doctrine of parens patriae and granted visiting rights to the maternal grand-parents.
Final Decision: The court allowed the petition and directed the custody of the children to be handed over to the petitioner, with visiting rights granted to the maternal grand-parents. The court made it clear that the decision would not affect the pending petition under the Hindu Minority and Guardianship Act, 1956 at the Family Court, Agra.

JUDGMENT

Jasgurpreet Singh Puri, J.(Oral) - The present application has been filed for placing on record the affidavits of the petitioner and his parents as Annexure P-11 to P-13.

2. For the reasons mentioned in the application, the same is allowed and Annexure P-11 to P-13 are taken on record subject to just exceptions.

Main case

3. The present petition has been filed under Article 226 of the Constitution of India seeking a writ in the nature of Habeas Corpus to produce minor children of the petitioner i.e. Neil Khanna who is about 51/2 years old and Nivaan Khanna who is about 31/2 years old. The date of birth of Neil Khanna is 24.08.2016 and that of Nivaan Khanna is 27.07.2018. The present petition has been filed by the father of the aforesaid two minor children on the ground that the children are in the custody of their maternal grand-parents who are respondents No.4 and 5 in the present petition.

4. Mr. Vinod Ghai, learned Senior Advocate with Mr. J.S. Mehndiratta, Advocate while giving the factual background of the case has submitted that the petitioner got married to Anshika on 30.11.2012 and it was a love marriage. The petitioner did B.Com from Panjab University, Chandigarh and thereafter did his MBA from San Diego University, USA. They resided happily with each other but thereafter the relations turned sour due to their matrimonial non-compatibility. After the birth of both the sons and after about 8 years of marriage, the wife of the petitioner lodged an FIR dated 20.09.2020, under Sections 498A, 323, 341 and 506 IPC by alleging that the petitioner had treated her with cruelty and some allegations regarding demand of dowry were also made. Thereafter, the matter was sorted out between them for some time and the petitioner and his wife continued to live together despite lodging of the FIR. In the aforesaid FIR challan was presented and the same is still pending before the Court of learned JMIC, SAS Nagar, Mohali.

5. In the last week of October, the wife of the petitioner fell ill and the petitioner took her to Indus Hospital, SAS Nagar, Mohali 3-4 times and initially, she was suffering from influenza for 4 days with shivering and was advised Intravenous Fluid alongwith some other medicines and after the Haematology Examination she was diagnosed as Dengue positive provisionally and thereafter, the doctor recommended ELISA Test for confirmation of Dengue. All the other tests were also conducted including the Liver Function Test etc. and the documents pertaining to the same have been attached with the present petition as Annexure P-1. As per the report of the doctors, the wife of the petitioner was having platelet count of 98000 which was not stated to be alarming despite her being diagnosed as Dengue positive and, therefore, she was sent back home for further care and observation. However, on 03.11.2021 unfortunately she passed away. Learned Senior Counsel submitted that the petitioner had attended to her wife and took her to the hospital 3-4 times and she was given proper treatment by a well reputed hospital namely Indus Hospital at Mohali and she passed away on 03.11.2021. Thereafter, on 04.11.2021 the father of his wife who is respondent No.4 got a DDR registered against the petitioner by alleging that the wife of the petitioner was being harassed for demand of dowry. Thereafter, the present DDR was converted into an FIR and the FIR was registered under Section 304 IPC which is still pending for investigation. The said FIR has been attached by the respondent Nos. 4 and 5 in their reply as Annexure R-8. He further submitted that during investigation of the aforesaid FIR, it has come in the investigation that as per the statement of the doctor of the Indus Hospital, the wife of the petitioner was brought to the hospital by the petitioner on 02.11.2021 at 9.39 P.M. where her blood samples were taken and medicines were given according to the need. At that time Anshika was sent home after giving medicines on the asking of the pet