CRWP No. 3758 of 2022 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRWP No. 3758 of 2022 (O&M)

DECIDED ON:25^th April, 2022

Mohan Singh

.....PETITIONER

VERSUS

State of Punjab and others

.....RESPONDENTS

CORAM:

HON'BLE MR. JUSTICE AVNEESH JHINGAN.

Present:

Mr. Preeti Manderna, Advocate for petitioner.

Mr. Sandeep Kumar, DAG Punjab.

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AVNEESH JHINGAN, J (ORAL)

This petition in the nature of Habeas Corpus is filed for

production and handing over custody of minor children namely Gurtoj Singh

and Anandveer Kaur.

The facts as pleaded are that marriage of daughter of the

petitioner was solemnised in 2009 with respondent No.4. The couple was

blessed with two children. On 8.4.2022 daughter of the petitioner died due to

burn injury. FIR No. 16 dated 27.2.2022 was registered at Police Station

Khanauri, District Sangrur. FIR was cancelled as in one of the statement the

deceased stated that the incident took place due to leakage of gas pipe.

As per the pleadings in the writ petition, the minor children are

in illegal custody of respondents No. 4, 5, and 6 i.e. their father and

grandparents.

Learned counsel for the petitioner on pointed query from the

Court as to how the custody of the minor children with their father and

grandparents can be termed as illegal custody, submits that initially FIR was

registered though it was cancelled later, the welfare of the children can only

REEMA SAINI

2022.04.26 16:55

I attest to the accuracy and

authencity of this document

High Court, Chandigarh

CRWP No. 3758 of 2022 (O&M)

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be look afterward by the petitioner.

Before proceeding further, it would be relevant at this stage to

quote Sections 4(b), 6 and 13 of the Hindu Minority and Guardianship Act,

1956 (for short, 'the 1956 Act') and Section 7 of the Guardians and Wards

Act, 1890 (for short, 'the 1890 Act'):

“Sections 4(b) and 6 of the 1956 Act 4.

Definitions.- In this Act,--

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(b) “guardian” means a person having the care of the person of

a minor or of his property or of both his person and property, and

includes--

(i) a natural guardian,

(ii) a guardian appointed by the Will of the minor's father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment

relating to any court of wards;

6. Natural Guardians of a Hindu minor:-

The natural guardians of a Hindu minor, in respect of the minor’s

person as well as in respect of the minor’s property (excluding his

or her undivided interest in joint family property,) are:––

(a) in the case of a boy or an unmarried girl—the father, and after

him the mother; provided that the custody of a minor who has not

completed the age of five years shall ordinarily be with the mother ;

(b) in the case of an illegitimate boy or an illegitimate unmarried

girl—the mother, and after her, the father ;

(c) in the case of a married girl.— the husband :

Provided that no person shall be entitled to act as the natural

guardian of a minor under the provisions of this section:––

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by

REEMA SAINI

2022.04.26 16:55

I attest to the accuracy and

authencity of this document

High Court, Chandigarh

CRWP No. 3758 of 2022 (O&M)

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becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation :—In this section, the expressions ‘father’ and ‘mother’

do not include a step-father and a step-mother.

13. Welfare of minor to be paramount consideration.—

(1)In the appointment of declaration of any person as guardian of a

Hindu minor by a court, the welfare of the minor shall be the

paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the

provisions of this Act or of any law relating to guardianship in

marriage among Hindus, if the court is of opinion that his or her

guardianship will not be for the welfare of the minor.

Se