Criminal Writ Petition No.166 of 1996

7th October, 1996

Petitioner Counsel: Shri N.W.SAMBRE
Respondent Counsel: Shri M.B.BADIYE

Cases Cited:
AIR 1948 Mad 294 [Para 5]
AIR 1960 SC 93 [Para 5]

JUDGMENT

GHODESWAR, J. - Rule made returnable forthwith. Heard the parties through their learned Counsel.

2. The petitioner-father of a minor girl Kum. Swati aged 5 years, has filed this petition for the issuance of writ of habeaus corpus under Article 226 of the Constitution of India seeking direction to the Respondent nos. 1 and 2 for handing over the custody of minor daughter Swati to the present petitioner who is a natural guardian.

3. The daughter of Respondents no.1 and 2-Sunita was married to the petitioners and she gave birth to two daughters - Kum.Swati and Kum. Shruti. Said Sunita died at Nagpur on 09-11-1994. Sunita was the only issue of Respondents no.1 and 2. After death of Sunita, out of love and affection, Respondents no.1 and 2 were allowed by the petitioner to take Kum. Swati with them to Dehradun. Kum. Swati is now residing with Respondents no.1 and 2 and taking education. Lateron, some dispute is started regarding the custody of Swati, and the petitioner has filed this petition on 24th July 1996.

4. The learned Counsel for the petitioner has submitted that though the initial custody of Kum. Swati with Respondents no.1 and 2 was legal, but when the petitioner as a natural guardian of Kum. Swati insisted for her custody,the Respondents no.1 and 2 have not acceded to his request, and therefore the custody of Kum. Swati with respondents no.1 and 2 becomes illegal and therefore this petition for writ of habeaus corpus is maintainable.

5. The learned Counsel for the petitioner further submitted that though there is an efficacious remedy for filing the petition for custody under Guardian and Wards Act, still this Court has jurisdiction to issue writ of habeaus corpus. He, therefore, relied upon two authorities, (i) In the case of S.Rama Iyer Vs. K.V.Nataraja Iyer, reported in AIR (35) 1948, Madras, page 294 (C.N.148). In this case, the custody of a boy aged about 13 years, on an application under Section 491 of the Criminal Procedure Code (Old ) was given to the natural guardian father, but after taking evidence of the parties. The facts of this case are different from the instant case.

The reliance is also placed upon the decision in the case of, Gohar Begum Vs. Suggi alias Nazma Begum and others, reported in AIR 1960, SC page 93. In para 10 of the said decision, the Supreme Court has observed as under :

" We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under S.491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under S.491. That is well established as will appear from the cases hereinafter cited."

6. It is true that, there is no bar to entertain the petition for habeaus corpus for giving the custody of the child. The Court is empowered to exercise the discretion under the extra ordinary writ jurisdiction in an appropriate case.

7. In this case, as observed earlier, the custody of minor Swati was given to the Respondent no.1 willingly by the petitioner. But, there are some disputed facts in the petition and this Court cannot go into the disputed facts in the writ jurisdiction. The Respondents no.1 and 2 have stated in the submission that the Respondent no.1 has filed an application for declaration under Section 10 of the Guardian and Wards Act, on 02-07-1996 for the custody of Kum. Swati in district Court at Dehradun.

8. The learned Counsel for the petitioner has submitted that in this application for declaration filed at Dehradun, the Respondent no.1 has prayed for an interim relief, but till date that is not granted by the District Court at Dehradun.

9. As there is alternative efficacious remedy under the Guardian and Wards Act and it is open for the petitioner to take recourse to this alternative remedy we do not want to exercise the discretion under the extra ordinary writ jurisdiction.

10. In the result, petition is dismissed. Rule is discharged.

11. The observations made herein shall not come in way of the petitioner in any proceedings.

Petition dismissed.