Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1547

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Ashok Kumar Verma, J.
Anita Dangi – Appellant
Versus
State Of Haryana & Ors. – Respondents
CRWP-8230-2022
Decided On : 07-09-2022

Advocates appeared:
Mr.Mandeep Kalra and Ms.Kanak Malik, Advocate, for the Appellant; Mr.Himmat Singh, DAG, Haryana with Mr.Tanuj Sharma, AAG, Haryana, Mr.Pankaj Gupta, Advocate, for the Respondent.

The welfare of the child is paramount in custody matters, and the jurisdiction of the Family Court is crucial in adjudicating custody disputes.

Headnote:
Habeas Corpus - Custody Dispute - Hindu Minority and Guardianship Act, 1956, Guardian and Wards Act, 1890 - The court discussed the provisions of Hindu Minority and Guardianship Act, 1956 and Guardian and Wards Act, 1890 in the context of a custody dispute. The court emphasized the importance of the welfare of the child and the jurisdiction of the Family Court in determining custody matters. The court also highlighted the limited scope of habeas corpus proceedings in child custody matters.
Fact of the Case:

The petitioner, maternal grandmother of the minor child, filed a habeas corpus petition seeking the release of the child from the illegal custody of the respondents. The custody dispute arose from the marital discord between the parents of the child, resulting in multiple litigations. The father had filed a petition seeking custody of the child, and the mother had sought permission to take the child abroad, both of which were pending adjudication before the Family Court. The child was allegedly kidnapped by the respondents during the pendency of the legal proceedings.
Finding of the Court:

The court found that the matter of custody was pending before the Family Court and had been the subject of revision petitions, which were dismissed by the court. The court emphasized the importance of the welfare of the child and the jurisdiction of the Family Court in adjudicating custody matters. The court directed the Family Court to expeditiously conclude the matter within six months.
Issues: The issues involved the legality of the custody of the minor child, the jurisdiction of the Family Court, and the maintainability of the habeas corpus petition in the context of the pending legal proceedings.
Ratio Decidendi: The court held that the matter of custody was within the jurisdiction of the Family Court, and the welfare of the child was paramount. The court emphasized the limited scope of habeas corpus proceedings in child custody matters and the importance of the ordinary remedies provided by the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890.
Final Decision: The petition was dismissed, and the Family Court was directed to expeditiously conclude the custody matter within six months.

JUDGMENT / ORDER

Ashok Kumar Verma, J. - Petitioner-Anita Dangi, who is maternal grand-mother of detenue-Lavyansh Dhankhar aged about 6 years (hereinafter referred to as the 'minor child') has approached this Court by filing this habeas corpus petition under Article 226 of the Constitution of India, for releasing the aforesaid minor child from the illegal custody of respondents No.4-Manoj Dhankhar (father of the minor child), respondent No.5- Rekha Malik (sister of respondent No.4), respondent No.6-Yogesh Malik (husband of respondent No.5), respondent No.7- Mukesh Dhankhar (brother of respondent No.4), respondent No.8-Manju (sister-in-law of respondent No.4) and respondent No.9 Sumitra (mother of respondent No.4).

2. The brief facts as culled out from the paper-book are that the daughter of the petitioner namely, Niharika Dangi was married to Manoj Dhankhar, respondent No.4 and out of this wedlock, one son who is the detenue in the present case, was born on 18.01.2016. The marriage ran into rough weather resulting into grappling with multiplicity of litigations between the parties. Respondent No.4 filed Petition under the provisions of Hindu Minority and Guardianship Act, 1956 and Guardian and Wards Act, 1890 before the Family Court, Rohtak seeking custody of the minor child which is pending adjudication before the Family Court, Rohtak for 7.9.2022. During the pendency of the aforesaid petition, mother of the child moved an application for seeking necessary permission from the Family Court to take the minor child abroad which has been dismissed by the Family Court vide its order dated 3.2.2022. The father of the minor child also moved an application for modification of visiting rights which has been allowed by the Family Court vide its order dated 3.2.2022. Thereafter, mother of the minor child filed CR Nos.646 and 647 of 2022 before this Court challenging the aforesaid two orders of the Family Court which have been dismissed by this Court vide its order dated 25.4.2022. It is the case of the petitioner that during the pendency of the aforesaid petition, respondents No.4 and 5 have kidnapped the minor child from his school at Rohtak on 25.08.2022, which resulted into registration of FIR No.335 dated 25.08.2022 under Sections 323, 341, 365 and 506 IPC at Police Station Urban Estate Rohtak by the husband of the petitioner against respondent No.4 and 5. It is alleged that respondents No.4 and 5 in connivance with respondents No.6 to 9 kidnapped the minor child when the daughter of the petitioner was abroad in Ireland. The petitioner finding no other such effective and efficacious remedy, has approached this Court by filing this habeas corpus petition.

3. When this matter came up for hearing before this Court on 26.08.2022, notice of motion was issued only to respondents No.1 to 3, at that stage. Vide order dated 30.08.2022 passed by this Court, notices were also issued to respondents no.4 to 9 and the Police was directed to produce the minor child before this Court on or before 02.09.2022. As per office report, notices could not be issued to respondents no.4 to 9 for 2.9.2022 as the petitioner did not file process fee.

4. Pursuant thereto, the matter has been finally heard on 2.9.2022. State of Haryana filed status report by way of affidavit of Udai Singh Meena, IPS, Superintendent of Police, Rohtak-respondent No.2 and none appeared on behalf of respondent no.4 whereas Mr.Pankaj Gupta, Advocate appeared on behalf of respondents No.5 to 9. Mr.Pankaj Gupta filed written submissions and compilation of documents under his signatures on behalf of respondents no. 5 to 9, though no written statement and affidavit(s) duly authenticated by respondents No.5 to 9 have been filed.

5. Learned counsel for the petitioner, inter alia, contends that respondents no.4 and 5 in connivance with respondents no.6 to 9 have kidnapped the minor child. He submits that the petitioner has a legitimate fear that respondent no.4 may flee away to abroad alongwith t

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