PUNJAB AND HARYANA HIGH COURT
R.P. Nagrath, J.
Kulwinder Kaur —Petitioner
versus
State of Punjab and Ors. —Respondents
C.R. W.P. No. 1610 of 2013
Decided on 24.4.2014

IMPORTANT POINT
When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor.

Headnote:Hindu Adoptions and Maintenance Act, 1956—Sections 6, 7 and 9—Custody of minor child—Habeas corpus—Writ by mother seeking custody of minor 5 years old girl child—Respondent father claimed and pleaded that child had been given in adoption to respondent No. 9 with consent of petitioner when a compromise document had been executed between parties—Compromise document showed that child was given in adoption by husband alone while petitioner had already left matrimonial home—Respondent husband and plea that petitioner had abandoned child appeared prima facie not believable as a mother would not leave her 40 days old child voluntarily unless circumstances compelled her to do so—Prima facie document set up by respondent of adoption was not in accordance with the Act—Welfare and interest of child and not the rights of parents which was the determining factor for deciding the question of custody—Petition deserved to be granted.

       Held: As per the document Annexure R4/2, the female child was given in adoption by respondent No.4 alone while the petitioner had already left the matrimonial home. It was contended for respondents No.4 to 8 that respondent No.9 is a family friend of these respondents. But as per reply of respondents No.4 to 9 and the document of compromise, there is nothing to suggest how respondent No.9 was known or related to the family of respondents No.4 to 8.

       The bone of contention for the respondents is that, it was inhuman act on the part of petitioner to abandon 40 days old child by leaving the matrimonial home. However, from facts it cannot be prima facie believed that mother of a 40 days child would leave it with the father voluntarily unless the circumstances compelled her to do so. It cannot be accepted that a mother would feel unhappy with the birth of a female child. It is primarily due to marital discord or may be the harassment, that the petitioner was forced to leave the matrimonial home. The petitioner and respondent No.4 had started living separate from the other family members in the year 2010 even before the birth of Jaspreet Kaur. The document Annexure R4/3 dated 19.3.2013 seems to have been executed by the petitioner with a hope of restoring martial ties and the promise of getting back the female child.

       A similar question was raised before the Division bench of this Court in Preet Ranjan Kaur v. Harjit Singh and another, 2013(2) HLR 22, wherein reference was made to subsequent decision of Hon’ble Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, 2009(1) SCC42.

       The conclusion in paragraphs No.50, 51 and 52 of Gaurav Nagpal’s case (supra) are reproduced as under.-

        “50. When the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case, the court has to give due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values, have also to be noted. They are equal if not more important than the others.

        51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parents patriae jurisdiction arising in such cases.”

        52. The trump card in the appellant’s argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be beneficiary of his own wrongs. The High Court has referred to these aspects in details in the impugned judgments.”

       It is contended by the learned counsel for respondent No.9 that the child is in custody of respondent No.9 and his wife for more than two years and it would be a great hardship for the respondent No.9 and his wife in case the custody of child is now disturbed when the child has been looked after properly by respondent No.9.

       The above contention, though seems to be attractive, cannot be granted any sanctity in these proceedings when it has been found that the transfer of custody of the child to respondent No.9 and his wife was not legal as claim for adoption has been prima facie found to be violative of the provisions of the Act of 1956. When respondents No.4 to 8 have themselves parted with the company of the child it would be always in the welfare of the child to give custody of the child, who is less than three years of age, to the mother.

       It would be quite useful to briefly refer to the principle of law applicable in such cases while dealing with this kind of sensitive and delicate issue. In Sarita Sharma v. Sushil Sharma, 2000(3) SCC 14, the Hon’ble Supreme Court held that ordinarily a female child should be allowed to remain with the mother, so that, she can be properly looked after. The girl child in that case was 5 years old.

       Once it is found that the child is prima facie in illegal custody of respondent No.9 and his wife the writ in the nature prayed for has to be allowed. In fact the care and warmth of both the parents is required during the infancy of child at impressional age but the scales in the instant petition tilt in favour of the mother who had all along been trying to settle her matrimonial life. If the petitioner has somewhat delayed in coming to this Court that cannot deprive her of the right to get back the child as it seems from the material placed on record, she even made

       serious efforts to resume company of her husband.

       In view of the above, it is found expedient and appropriate that the custody of the female child Jaspreet Kaur is restored to the mother. The instant petition is allowed and it is directed that respondent No.9 and his wife would handover the child to the petitioner within a period of one month of receipt of certified copy of this order. The respondents No.4 to 8 would also assist in implementing this direction. The State through its functionaries especially respondent No.2-Commissioner of Police, Ferozepur would ensure the compliance of this order. Respondent No.4 would have fortnightly visitation right to meet the minor daughter on Saturdays from 11.00 a.m.. to 4.00 p.m. For fixing the date and time of such meeting, respondent No.4 may apply to the Guardian Judge for appropriate directions. Respondent No.4 would also be at liberty to apply to the Guardian Judge for weekly visitation rights after the above arrangement continues satisfactorily for four months continuously. (Paras 13, 14, 25, 26, 28 to 31 & 34)

       Result: Petition allowed.