Himachal Pradesh High Court
Saurav Rattan vs State Of Hp And Others on 9 May, 2025
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Neutral Citation No. ( 2025:HHC:13309 )
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr.WP No. 11 of 2023
Reserved on:10.04.2025.
Pronounced on: 09.05.2025
Saurav Rattan ......Petitioner
Versus
State of HP and others .....Respondents
_________________________________________________________
Coram:
Hon’ble Mr. Justice G.S. Sandhawalila, Chief Justice.
Hon’ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?
For the petitioner : Petitioner in person with Mr.
Shrawan Dogra Senior Advocate
with Mr. Amrinder Singh Rana
and Mr. Tejasvi Dogra,
Advocates.
For the respondents :Mr. Gobind Korla, Additional
Advocate General with Ms.
Priyanka Chauhan, Deputy
Advocate General for
respondents No. 1 to 4-State.
Mr. Neeraj Gupta, Senior
Advocate with Mr. Ajeet Pal
Singh Jaswal and Mr. Vedhant
Ranta, Advocate, for
respondent No. 5 to 9.
G.S. Sandhawalia, Chief Justice.
In the present Habeas Corpus Petition, the
petitioner, who is father of two minor girls, namely, Ms.
2Amyra Rattan (at present aged around 9 years) having
been born on 15.09.2016 and Ms. Anaysha Rattan (at
present aged around 7 years) having been born on
30.10.2018, seeks their custody by way of a writ of
Habeas Corpus, on the ground that they are possibly in
the illegal and unauthorized custody of respondents No.
6 to 9, who are close relatives of his wife- respondent
No. 5 Chery Mohil and in such circumstances seeks
direction for handing over the lawful custody of the
minors’ being father and natural guardian.
2. The pleadings in the Habeas Corpus Petition
goes on to show that the petitioner, who is a practicing
Advocate in this Court was also an exceptional
sportsman having played international cricket and
played Ranji Trophy for Himachal Pradesh and has also
represented North India Cricket team in the year 2004.
The petitioner was also captain of Himachal Pradesh
under-22 team. He was a member of Junior Selection
Committee (under-19, under 16 and Under 14 Teams) of
Himachal Pradesh Cricket Association (HPCA) and
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presently he is the member and selector of Sirmaur
District Cricket Association.
3. The petitioner solemnized marriage with
respondent No. 5 on 10.11.2013 and from the said
wedlock, two minor daughters have been born and
unfortunately, relationship in the year 2020 got strained
between the husband and the wife. As per the
averments contained in the petition, respondent No. 5
wife left the company of the petitioner to live with her
parents, who were living at Nahan and also has taken
the two minor daughters Amyra Rattan and Anaysha
Rattan along with her. It is the case of the petitioner
himself that he has lost both his parents and his elder
brother also, is unmarried and he has no other family
member except the wife and two daughters, who are
emotionally attached with him. At the time when the
wife left the company of the petitioner in 2020, the elder
daughter was admitted in Loreto Convent Shimla (Tara
Hall) and the younger daughter was not going to School.
It is stated that the petitioner was bearing all the
expenses of both the daughters. It is averred that minor
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daughters came back to Shimla and lived with the father
at Shimla for about 25 days without the mother
respondent No. 5 w.e.f. 01.06.2021 to 25.06.2021.
Thereafter respondent No. 5 came back to the
matrimonial home for a brief period and on 04.09.2021,
she again left her matrimonial home along with
daughters to live with her parents at Nahan. The
petitioner is stated to have undergone medical
treatment in IGMC Shimla for Bone Tuberculosis and
surgery for Gall Bladder stone also at IGMC Shimla in
the years 2021-2022. It is stated that on both these
occasions, despite having knowledge, respondent No. 5-
wife never attended the petitioner and he had to take
care of himself alone or through his friends.
4. It is stated that the wife filed a case Under
Domestic Violence Act,2005 (hereinafter referred to as
‘the D.V. Act, 2005‘ for short) on 09.11.2021 at Nahan
which is pending adjudication before the Chief Judicial
Magistrate, Sirmaur at Nahan. It is also the case of the
petitioner that he moved an application under Section
21 of the D.V. Act, 2005, on 18.01.2022 for grant of
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visitation rights to meet his minor daughters but in the
said proceedings no order as prayed was granted or
rejected, for almost 2 years and 9 months and the
application is stated to be still pending and resultantly,
the Guidelines framed by this Court, namely “Child
Access & Custody Guidelines” are being violated.
Similarly, the averment is made that on 15.12.2022, the
petitioner filed a case under Guardians and Wards Act,
1890 only to the extent of visitation rights as prayed in
the earlier application but even after lapse of almost ten
months, the interim application of the petitioner is still
pending in the Court of District Judge, Sirmaur at Nahan
and no interim order having been granted, cause of
action is sought to be arisen as he had filed one more
application under Section 23 of the DV Act, 2005 for
visitation rights on 20.01.2023 and the same is also
pending for the last about 9 months.
5. It is his case that on 06.9.2023, he came to
know that his wife had come from Doha, Qatar and had
asked for a specific date and therefore, he came to know
that she was staying there on account of her
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employment and became worried about the lawful
custody of his minor daughters. It also came to his
knowledge that the minor daughters are being
unlawfully and illegally kept in the custody of
respondents No. 6 to 9 who are not entitled to have their
lawful custody under law. It has been specifically
averred that before marriage, respondent No. 5 was
working with Qatar Airlines and she left the said job in
the year 2015 after marriage. Thus, apprehending that
his daughters are not being properly looked after in the
absence of their mother and particularly when the family
members of respondents No. 6 to 9 are strangers to
them, the present petition has been filed on 05.10.2023.
It is also averred that he has been directed to pay
maintenance of Rs. 15,000/- w.e.f. 01.04.2022 and has
paid arrears to the tune of Rs. 40,000/- and is ready to
deposit the remaining arrears in one go, provided the
same is utilized for the benefit of the minor daughters
and if they are admitted in a reputed school in Shimla
subject to Mid-Session admission problem. The minor
daughters are being kept in illegal and unauthorized
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custody either in the house of respondent No. 6 or
respondent No. 9. In the house of respondent No. 6, the
other members include her three sons, three children
and two daughter-in-laws, including respondent No. 8,
who is sister of the wife of the petitioner. Since
respondent No. 9 is mother of the wife of the petitioner
and respondent no. 5 who is residing in a separate
house in such circumstances, it cannot be assumed that
the minor daughters of the petitioner would be getting
proper and due care in the absence of their parents who
are not residing with them.
6. Respondent No. 5 is stated to be residing in
Doha, Qatar and therefore, the custody is stated to be
illegal and without authority. It is further averred that
father of the wife of the petitioner had asked the
daughter to live separately from her parental house and
she is occupying separate accommodation with her
mother and minor daughters and are being kept in the
custody of the mother of his wife and it amounts to
illegal custody, since his wife is living in foreign country.
The petitioner has further averred that if he is given
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custody of the minor daughters, he would give visitation
rights to his wife as he has reasonable source of income
since he is practicing Advocate in the High Court as well
as District Court Shimla in addition to other
Tribunal/Courts. Being a cricketer he wishes to guide the
daughters in the said sport and attach them to the said
game. It is further averred that respondent No. 5 is
being impleaded as her address has been given as that
of respondent No. 9 her mother.
7. In the common reply filed by respondents No.
5 to 9, it has been averred that respondent No. 5 mother
in order to sustain herself and also her minor children
had to look for a job and upon having been granted the
same, has kept her children with their maternal
grandmother-respondent No. 9 since the petitioner has
failed to watch the welfare of his wife respondent No. 5
as well as minor children. It is averred that she was
compelled to take the job in Qatar Airways in March,
2023 and the minor children are with maternal
grandmother respondent No. 9. It is further averred that
neither respondent No. 5 has abandoned her minor
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daughters nor has permanently shifted outside the
country and the children are neither in illegal or
wrongful confinement and the petition has been filed
with malafide intention to take away the custody of the
minor children and is an abuse of process of law. The
maintainability of the Habeas Corpus petition as such
itself has been questioned as the minor children were
neither in illegal confinement rather are in the custody
of their mother and natural guardian. Merely because
she is working for gain in Qatar Airways and is
frequently visiting her mother’s house at Nahan where
the minor daughters are residing, the same cannot be
construed to be an act of abandonment or neglect on
the part of the mother. The maternal grandmother of the
minors and other family members are taking good care
of the minors and also watching the welfare of the
minors. It is averred that welfare of the minor children
are being well protected and looked after by respondent
No. 5 as well as by her mother and sister and on
account of matrimonial discord between petitioner and
respondent No. 5 since petitioner has failed to watch the
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welfare of the minor children, thus the welfare of minor
children is not with the father as has been wrongly
projected.
8. Further, it is the case of respondent No. 5 that
petitioner has failed to comply with the order of
maintenance as granted by the Chief Judicial Magistrate
vide order dated 24.9.2022 in an application moved by
mother under Section 23 of the Protection of Women
from Domestic Violence Act, 2005, and thus it does not
lie in the mouth of the petitioner that he has the
intention to take care and watch the interest of the
minors. A reference has also been made to the order
dated 07.10.2023 by the Chief Judicial Magistrate as well
as to the order dated 13.10.2023 by this Court to the
effect that the petitioner has been granted visitation
rights and therefore, the averments have been rebutted
that neither children have been abandoned nor
respondent No. 5 has shifted out of the country. It is
averred that on account of conduct of the petitioner
much prior to the year 2020, the matrimonial relations
had become strained and despite efforts made by
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respondent No. 5, petitioner did not mend his ways and
she was compelled to leave the matrimonial home and
take away the minor with her parents at Nahan since
she had been inflicted with atrocities upon her by the
petitioner and had to take recourse of the provisions of
the Protection of Women from Domestic Violence Act,
2005. It is further contended that since the petitioner is
alone and the minor daughters need the care of their
mother or any other female for the best growth and
development of the children thus, even with such
assertions, petitioner should be sensitive to the
situation to judge himself as regards welfare of his minor
daughters being with her mother “Nani” and it is in the
interest of the minors. There are other female relatives
at the house of “Nani” and nearby who are the best
persons to watch the interest and welfare of the minors
than that of the petitioner who is alone and a practicing
Advocate in Shimla.
9. Reference has been made to the orders
passed by Chief Judicial Magistrate on 24.09.2022 that
the maintenance has not been paid for the welfare of
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the minor children and petition has been filed projecting
a false case and the petitioner has paid some amount in
order to justify his stand that he was allegedly taking
care of the minor children. It is averred that even the
order passed by the Chief Judicial Magistrate, Sirmaur at
Nahan has not been complied with by the petitioner. It
has been further averred that elder daughter was
studying in Loreto Convent School at Shimla and
younger daughter was not school going when
respondent No. 5 left the matrimonial home. It has also
been averred that she has supported the petitioner
financially in the past and has invested her personal
finance to buy property in Shimla. It is further submitted
that petitioner though had taken the minor daughters
with him to Shimla and it was during Covid-19 period
when the judicial work in Courts was not on, she
permitted the petitioner to take the minors temporarily
during such period. However, respondent No. 5 was not
comfortable at all to leave the minor daughters with the
petitioner alone especially when on account of his work
and professional engagements, there is no other person
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to take care for them throughout the day. For such
reasons, the custody, if given to the petitioner, shall not
be in the interest of the minors. The factum of
undergoing medical treatment and surgery has been
admitted but since the relationship had been strained,
there was no occasion for respondent No. 5 to come
back to Shimla and it cannot be construed to be an act
of neglect. The order dated 07.10.2023 whereby
visitation rights were granted as such has been referred
to, and also order dated 24.09.2022 and the replies as
such have been annexed to contend that there was no
occasion to approach this Court when the order had also
been passed on earlier occasion since the visitation
rights have been already granted and there is no denial
as such to the petitioner.
10. The filing of the case under Guardian and
Wards Act is not denied and it is denied that respondent
No. 5 has been playing victim card by crying in the open
Court since she has been made to suffer and has
exposed herself through various judicial proceedings.
Due to the engagement with Qatar Airways on account
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of a contract, the welfare of the children was being
watched by her mother and in her absence by maternal
grandmother Nani as she had not permanently shifted
outside the country. It has been admitted that she was
working with Qatar Airways from 11.12.2010 up to
06.01.2015 even after getting married with petitioner
and had been compelled by the petitioner to leave the
matrimonial home on account of failing to maintain her
and the minor children and to secure herself financially;
and given herself a bright future she tried to fetch a job
as she had no option except to take up a job which may
give her financial independence and also to meet the
financial requirements of the minor children.
11. A reference has been given to various
Educational Institutions at Nahan and other prospective
employers where she had made an attempt to take job,
like Mind Tree School at Nahan, Arihant International
School Nahan Soperia Steria IT Company at NOIDA,
Frankfin Training Institute at Chandigarh, Frankfin
Training Institute at Delhi, Amex Gurgaon and British
Airways Delhi based.
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12. On account of not having secured a job and in
order to secure herself financially and to provide with
adequate comfort to her minor children, she approached
her previous employer Qatar Airways which gave
employment to her from the month of March, 2023
onward. She, under the aforesaid employer took up a
contractual job for five years and is being paid QAR 3800
(which works out to be Rs.87,000/- per month
approximately). It is further averred that intention of the
petitioner was to compel her to leave the said job and
force her to live with him and he cannot be permitted to
raise allegations against her that she has either
abandoned the minor children or has no intention to
watch the welfare of the minor children or has further
shifted permanently outside country. It is further
highlighted that the amount of maintenance has not
been paid by the petitioner for a considerable period and
it was only during the pendency of the present
proceedings that petitioner transferred some amount in
compliance to order passed on 24.09.2022 and thus,
petitioner cannot be heard in projecting that he was
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watching the welfare of the minor children. The
petitioner had no intention to watch the welfare and
interest of the children at any point of time rather he has
taken advantage by filing the present petition.
Orders passed by Courts below:
13. Faced with the pleadings as such regarding
the fact that wife of the petitioner has taken up an
engagement with her earlier employer to sustain herself
and her children and the fact that there is no dispute
that only an amount of Rs.15,000/- has been awarded as
maintenance coupled with the fact that while contesting
the petition under Section 23 of the Protection of
Women from Domestic Violence Act, 2005, the stand of
the petitioner was that he was earning Rs.20,000/- only.
The Chief Judicial Magistrate as such directed payment
of Rs.15,000/-per month for the two minor daughters
w.e.f. 01.04.2022. It was as such noticed that the
petitioner has celebrated the first three birthdays of his
daughters in top hotels and resorts and apparently is
living a luxurious life and the wife had to maintain two
minor daughters and he had paid Rs.61,990/- for the
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elder daughter during the sessions 2021-2022 and he
had shown his readiness and willingness and keeping in
view the standard of living.
14. It is also the admitted case as such of the
petitioner himself that he is in arrears as such of the said
amount also which has been asserted by respondent No.
5 also as would be clear from paragraphs 2.25 that he
has paid arrears to the extent of Rs.40,000/- and is
ready to pay the remaining arrears in one go with the
condition that the same is utilized for the welfare of the
minor children. It is specific averment of the wife also
that the petitioner has not cleared the arrears and on
such account she has been forced to seek employment
to sustain herself and minor daughters and the present
petition has been filed without payment of maintenance
amount.
Question of maintainability.
15. It is in such circumstances, we put to the
learned Senior counsel as to maintainability of the
present Habeas Corpus petition. From the pleadings, it is
clear that respondents No. 5 to 9 are close relatives of
respondent No. 5 wife and it would be apparent that the
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children are in a secure environment with maternal
grandmother. The wife having taken employment
temporary to sustain herself cannot be put on weak
pedestal as such that she has abandoned her minor
children specially on account of the fact that sustenance
is not forth coming from the petitioner himself.
16. Learned Senior Counsel for the petitioner has
relied on plethora of judgments in support his case that
being the father, he has preferential right of custody
since the mother had abandoned the minor children. The
judgments relied upon are: Gohar Begum versus
Suggi AIR 1960 SC 93, Tejasvi Gaud versus
Shekhar Jagdish (2019) 7 SCC 42, Yashita Sahu
versus State of Rajasthan (2020) 3 SCC 67,
Sandeep Kumar versus State of Punjab Cr.W.P No.
8954 of 2021 decided on 16.11.2021, Amol Ramesh
Pawar versus State of Maharashtra Cr. W.P No.
1698 of 2013 decided on 27.02.2014, Anushree
Goyal versus State of Madhya Pradesh WP No.
7739 of 2020 decided on 08.06.2024, Smt. Manju
Singh and others versus State of Madhya Pradesh
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and others WP No. 1104 of 2023 decided on
23.06.2023, Lajwanti and others versus Priti Devi
and others, Cr.MMO No. 1164 of 2022 decided on
02.06.2023, Master Samarjeet Singh vs. State of UP
and others Special Appeal No. 597 of 2019 decided
on 19.10.2019, Kulwant Singh versus State of
Haryana and others Cr.WP No. 1485 of 2021
decided on 23.08.2022 which has been set aside in
Nirmala vs. Kulwant Singh and others (2024) 10
SCC 595 and Saksham Pathak (minor) versus
Vishal Dubey and other Habeas Corpus petition
No. 467 of 2020 decided on 15.12.2020, apart from
the Child Access & Custody Guidelines framed by this
Court.
17. The aforesaid judgments relied upon are
distinguishable. In Gohar Begum‘s case the dispute
was between mother and her associate and both the
contesting parties were singing girls and it was in such
circumstances the Apex Court had allowed the petition
for recovery of the custody of the child which had been
denied by the High Court. The position, as noticed in the
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present case is between the wife and the husband’s
contesting claims and there are no third parties as such,
who have exclusive custody of the children and there is
only a living arrangement as such with close relatives
and it is only account of tacit consent with respondent
No. 5. Similarly, in Tejasvi Gaud‘s case the minor as
such was 1 ½ years old and the sister had the custody.
In such circumstances, the Apex Court held that the
sister of the mother of the minor had no authority under
law by giving reference to Section 6 of the Hindu
Minority and Guardianship Act and had given preference
to the father.
18. In Yashita Sahu‘s case, directions were
issued by the Apex Court in peculiar facts where the wife
had run away with the minor from the jurisdiction of the
US Court without the consent of the husband and there
were also interim orders as such passed by the US Court
for joint legal custody of the minor child. Resultantly
directions were issued that the jurisdictional Court in
USA would pass an order and directions were given to
the husband to maintain the wife and personal
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maintenance and for upkeep of the minor children,
which is not the case herein. Reliance upon the
judgment in Sandeep Kumar’s case, supra is also
misplaced since the child was with maternal grand
parents and the mother had gone to UK and findings was
recorded that she cannot come back and therefore,
preference was given to the natural guardian the father
since the travel document/ pass port had been seized
during pending proceedings. In Amol Ramesh’s case
supra, the dispute inter se was between the grand
parents of the minor and the father and the wife had
died, in such circumstances, father was given
preference. Similarly, in Anushree Goyal’s case,
mother was given custody over the paternal grand
parents by entertaining petition under Habeas Corpus
leaving rights as such of the parties to approach the
Guardians Court. Therefore, the said judgment is also
distinguishable. Similarly in Manju Singh‘s case the
father was not given custody as the custody was with
the mother and it was held that it cannot be said to be
illegal custody.
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19. In Lajwanti‘s case referred to supra, this
Court had preferred to give custody to the mother being
natural guardian in preference to the father while giving
liberty to initiate proceedings under the Guardians and
Wards Act while dealing with the proceedings arising out
of the order of the Sub Divisional Magistrate which was a
contrasting claim filed by the grand parents and it had
chosen not to interfere with the custody with the
mother. In Master Samarjeet Singh‘s case, father’s
petition for Habeas Corpus was dismissed and the
minor’s custody was given to maternal uncle (Mama)
and the matter was remanded to the learned Single
Judge to look into the issue as to where the interest of
the minor would lie. In Kulwant Singh‘s case the
contest was between the father and the maternal uncle
and in the case therein, rights were given as such to file
appropriate application before the appropriate Court by
directing handing over the custody to the father.
20. Similarly, in Saksham Pathak‘s case, the
dispute was between the father and his in-laws having
the custody of child and priority was given to the
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parents and therefore, the said judgment also would not
be applicable in the present facts and circumstances of
the case.
21. Thus, it is the contention of the petitioner’s
counsel that the preference has to be given to the
petitioner and respondent can prefer proceedings before
the Guardian and Wards Act, which can be directed to
decide the petition in a time bound manner while placing
reliance on Section 6 of the Hindu Minority and
Guardianship Act.
22. In contrast, learned Senior Counsel for the
private respondents has rightly also stressed that the
judgments cited are where other spouse was not living
and respondent No. 5 not residing permanently in Doha,
Qatar and having only a contractual job and therefore,
by virtue of the present petition, petitioner cannot get
custody of the minor children by himself being
responsible for forcing the wife to seek gainful
employment in conformity with her living standard
earlier in her life time prior to her marriage and for
securing the future of the children. It is pointed out that
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in the absence of any female member in the immediate
family of the petitioner as such the welfare of the
children as such has to be kept in mind and has to be
the sole consideration and therefore, once they are
studying in a reputed school at Nahan, namely, Mind
Tree School, this Court would not exercise its extra
ordinary jurisdiction. It is pointed out that by virtue of
interim orders, petitioner seeks to squeeze the custody
while getting various interim orders due to his wife not
being present all the times to oppose the same and by
virtue of interim orders, he has got relief without any
challenge raised to the order of the Courts below.
Reasoning:
23. A perusal of the paper book, the arguments
addressed and the background as such would go on to
show that apparently the first round of litigation was
initiated by way of proceedings under the D.V Act, 2005
by respondent No. 5 in which the petitioner had taken
the stand that he would pay Rs.12,000/-, which includes
Rs.5,000/- as school fee and Rs. 7,000/- for other
expenses in reference to their matrimonial dispute,
25
including the fact that he was facing financial problem
due to Covid-19, being an Advocate and the fact that he
was all alone and having undergone medical problems
also. The reference was made to the change of School
and the children having taken admission at Nahan at
Mind Tree School and the fact of birthdays celebrations
in various hotels even at the costs of stressing the
couple and the introduction with the various cricket stars
as such and helping the family of respondent No.5 in
other legal proceedings and getting her brother a job as
such and also getting his postings etc. were referred to
in support of the fact that he was a loving father.
24. As noticed above, on 24.09.2022,
maintenance of Rs.15,000/- was awarded in favour of
the minor daughters and petitioner wife. In the said
proceedings petitioner had filed an application under
Section 23 of the D.V. Act, 2005 on 28.01.2023.
Thereafter, he had filed an application under Section 12
of the Guardians and Wards Act for interim visitation
rights to the minor children before the District Judge also
on 28.11.2022 on the averment that respondent No. 5
26
had applied for a job with Qatar Airways and there was
an apprehension that she would take the minor children
to Qatar without his consent.
25. Around the time of filing of the present
petition on 05.10.2023, before this Court, an order was
passed on 07.10.2023 by the Chief Judicial Magistrate in
the application filed by the petitioner under Section 21
of the Protection of Women from Domestic Violence
Act,2005, wherein he was allowed to have visitation
rights over his minor daughters on 2 nd and 4th Saturday
of each month for two hours, i.e., 3.00 P.M. to 5.00. P.M.
The relevant portion of the said order reads as under:
“In the instant case, the custody of children is already
with their mother. The respondent i.e. father has
sought merely visitation rights to see his minor
daughters and in case the visitation rights are not
given to the respondent / father, minor children would
be deprived of their father’s love and affection. The
paramount consideration is the welfare of the child.
The petitioner could not be forced to seek remedy
either under Guardians and Wards Act, 1890 and
Hindu Minority and Guardianship Act, 1956. The Act is
a self contained code. The endeavour of the Court
should be to cut-short the litigation and to ensure that
the child gets love and affection of both parents. The
approach of the Court should be practical to workout
27the modalities in a practical manner by evolving the
process, whereby the child suffers minimum trauma.
The interception of statute should be purposive.
Consequently, in view of analysis and discussion
made here-in-above, the application is allowed and
respondent/father is allowed to have visitation rights
over his minor daughters on 2nd and 4th Saturday of
each months for two hours viz. 3:00 p.m. to 5:00 p.m.
Application stands disposed of. There is no order as to
costs. It be registered and be tagged with the main
case file after due registration”
26. As noticed above, it is the case as such of the
petitioner that he was aware of the fact that his wife was
seeking employment with Qatar Airways and it is also
the argument of the learned Senior Counsel that only
when he came to know on 06.09.2023, the present
petition was filed though the interim application had
been filed before the Courts below.
27. Surprisingly, the petitioner chose not to file
petition under Section 7 of the Guardian and Wards Act,
for appointing him as guardian, as such for custody of
the children though he was apprehending the children to
be taken away by the mother. It is in such
circumstances, the co-ordinate Bench as such had
directed that the inquiry be made as to whether the
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mother is residing outside and on 26.10.2023 on getting
the information as such that children were residing with
his mother, production of the children was ordered on
09.10.2023. Direction was thus issued that he be
permitted to meet the minor children on every day
between 3.00 P.M. to 7.00 P.M. and on holidays he was
permitted to take the children out from 9.00 A.M. to 5.00
P.M., after observing that the interaction of the minor
children had shown that the children need to be retained
with respondent No. 9 Nani till next of hearing.
Mediation as such had failed. The directions were issued
to keep the minor daughters with the petitioner on
05.07.24 till 14.07.2024 and the earlier order dated
13.10.2023 was modified while noting that the mother of
the minor children was abroad.
28. Application for modification of the order was
disposed of with direction that the case be heard on
merits and on 02.04.2025 an order was passed as such
whereby petitioner was allowed to keep the minor
daughters during the April vacation from 03.04.2025 to
29
11.4.2025. Eventually arguments were heard and
judgment was reserved on 10.04.2025.
29. It is a matter of record that divorce petition
under Section 13 of the Hindu Marriage Act, has also
been filed as such before the District Judge at Nahan in
July, 2024. It is as such in this contested background
that we propose to dispose of the present petition giving
liberty to the petitioner to approach the Guardian Court
as such for his rights for the custody of the minor
children as we are of the considered opinion that the
minor children are not in unlawful custody of private
respondents No. 6 to 9 and custody, if any, as such is
only for the purpose of their welfare as the respondent-
wife was in earlier employment with Qatar Airways. This
fact would be clear from the pleadings of the parties and
the fact that the Certificate dated 07.01.2015 (Annexure
R-2) given by the said employer would go on to show
that she had worked as Cabin attendant from
11.12.2010 to 16.01.2015 in the Cabin Crew flying
department of Qatar Airways.
30
30. It is not disputed that the parties got married
on 10.11.2013 and apparently even she worked after
the marriage with the said Airways. It is the specific case
of respondent No.5 wife that she has taken the
employment on 15.03.2023 (Annexure R-3) on probation
basis on contract and as mentioned it is for the purpose
of maintaining herself on account of the fact that she
needs subsistence for her children. It is also admitted
case of the parties and even the case of the petitioner
that a sum of Rs. 15,000/- which has been awarded as
maintenance is not being paid on regular basis and the
petitioner is yet to clear the various arrears when he had
filed the present petition.
31. In the Rejoinder (sic replication) filed by the
petitioner, opportunity for looking for a job outside India
has been questioned and that the children were living a
life of orphan’s and it has been mentioned that relief
was sought only qua his visitation rights subsequently
on account of the fact that respondents No. 5 had left
the minor children and shifted to Qatar and got a job at
Qatar, and he had then filed the present petition.
31
Averments have been made that she lives in 330 days
abroad and comes for vacation to India. It is highlighted
that the grand parents had sent eviction notice to
respondent No. 5 and he has visited Nahan on every
weekend to perform his duties and it is denied that he
has failed to comply with the order of maintenance. But
there is no reference as such made that he has cleared
all the arrears. In such circumstance, we are of the
considered opinion that the averment that he has paid
an amount of Rs.3,25,000 to respondent No. 5 till date
would not as such show the intention of the petitioner to
support his children and his wife in the manner which
would be expected of a loving father.
32. It is in such contrasting circumstances we
come to the conclusion that the petitioner cannot as
such take advantage of not maintaining his minor
children by paying maintenance on regular basis and
also by pleading that he is just earning Rs.20,000/- per
month and denying a reasonable amount of
maintenance to the wife and the minor children in this
point of time keeping in view the background as such
32
projected by him. Similarly, it is not disputed that there
is no female member in the house and even in the
replication it has been mentioned that a female helper
will come home twice a day who will take care of home
chores, since both the children can be admitted in a
School near to the High Court and post lunch, petitioner
and his daughters will go back to home where he has an
office-cum-residence. Therefore, in such circumstances,
it cannot be said that the welfare of the children would
lie prima facie in the hands of the petitioner.
33. It would be a matter of evidence as such as
how much he is earning and is in a position to offset the
earnings of his wife and therefore, if the wife had taken
employment with the Qatar Airways as such it cannot be
held that she has abandoned the children. The petitioner
cannot be allowed to take advantage of his own action
as such by not paying a minimum which is expected
from him and then expecting his wife as such to be at
his mercy for Rs.15,000/-. Thus, she has opted for an
employment with her earlier employer which would not
33
mean that she had abandoned her minor children by
keeping them with her mother.
34. Reliance can also be placed on the judgment
of Apex Court in this context that for a Habeas Corpus
petition for the transfer of custody of the minor children
from one parent to other, paramount consideration
would as such be welfare of the children. The availability
of the petitioner, who is practicing lawyer, in the
absence of any family members in the house in contrast
to the joint family arrangement at Nahan with the
grandmother and the other daughter who is married and
the children have cousins and other siblings to interact
with them,specially being girl children. We are of the
considered opinion that filing the petition for habeas
corpus in the present facts and circumstances would not
be correct methodology to take the custody of the
children as it cannot be termed as unlawful custody as
such.
35. In similar circumstances, the Apex Court in
Sayed Saleemuddin versus Dr. Rukshsana and
others (2001) 5 SCC 247 while taking consideration of
34
the judgment in Gohar Begum‘s case supra had held
that the inter se custody between the parents be not
interfered by way of habeas corpus and the principal
consideration for the Court is to ascertain whether the
custody of the children is unlawful or illegal. In the
present peculiar facts and circumstances, in the present
situation and the need of the wife to sustain herself, we
are of the considered opinion that the temporary
custody of the children with the maternal grandmother
and close relatives of wife/massi and sister and her
husband etc. cannot be said to be as such as abdication
of responsibility by respondent No. 5.
36. In Nithya Anand Raghavan versus State
(NCT of Delhi) and another, (2017) 8 SCC 454, a 3-
Judge Bench of Hon’ble Supreme Court has mandated
that plea of custody of a child claimable by parties is a
question to be strictly governed by the Courts by the
provisions of the Guardians and Wards Act, by allowing
the appeal of the mother and setting aside the order of
the Delhi High Court passed in habeas corpus
proceedings, in the following terms:-
35
“63. As regards the fourth factor noted in clause
(d), we respectfully disagree with the same. The
first part gives weightage to the “first strike”
principle. As noted earlier, it is not relevant as to
which party first approached the Court or so to say
“first strike” referred to in paragraph 52 of the
judgment. Even the analogy given in paragraph 54
regarding extrapolating that principle to the Courts
in India, if an order is passed by the Indian Court is
inapposite. For, the Indian Courts are strictly
governed by the provisions of the Guardians
and Wards Act, 1890, as applicable to the
issue of custody of the minor within its
jurisdiction.”
37. Even in Tejasvi Gaud‘s case (supra), the
Apex Court held that a writ of habeas corpus is not liable
to be issued in ordinary circumstances and is only an
extraordinary remedy and is prerogative writ where it is
proved that detention of minor child by a parent or
others was illegal and without authority of law. The
relevant portion of the said judgment reads as under:
“18.Habeas corpus proceedings is not to justify or
examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of
the child is addressed to the discretion of the court.
Habeas corpus is a prerogative writ which is an
extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy
provided by the law is either not available or is
ineffective; otherwise a writ will not be issued. In child
custody matters, the power of the High Court in granting
the writ is qualified only in cases where the detention of
a minor by a person who is not entitled to his legal
36custody. In view of the pronouncement on the issue in
question by the Supreme Court and the High Courts, in
our view, in child custody matters, the writ of habeas
corpus is maintainable where it is proved that the
detention of a minor child by a parent or others was
illegal and without any authority of law.”
37(i). Negativating the plea for custody of a child, by
way of Habeas Corpus Petition, the Hon’ble Supreme
Court in Writ Petition (s) (Criminal) No(s).318 of 2020,
Jose Antonio Zalba Diez Del Corral Alias Jose
Antonio Zalba versus The State of West Bengal &
Ors., decided on 28.07.2021 has mandated statutory
remedy available was under the Guardians and Wards
Act, in view of the fact that question regarding welfare
and well-being of a child can be considered in accor-
dance with law, after appreciation of evidence, which
may be led by the parties and not in a Habeas Corpus
Petition, in the following terms:-
“In the present case, the admitted facts being that the
mother has the custody of two minor children, for which
the petitioner(father) has already filed a petition
under Section 12 of the Act, which is pending
consideration; and the custody of the children with the
mother, who is a natural guardian, cannot be said to be il-
legal and, thus, the petition for habeas corpus would not
be maintainable and that too directly under Article
32 of the Constitution of India. While saying so, we are
not going into the question whether the maintenance
amount directed by the Trial Court in the proceedings
under the Protection of Women from Domestic Violence
37Act,2005 has been paid or not. The statutory remedy
available under the Guardians and Wards Act is the
appropriate remedy, which has already been
availed by the petitioner. There are no extra
ordinary or exceptional circumstances in the
present case requiring this Court to exercise its
jurisdiction under Article 32 of the Constitution of
India. The remedy already availed by the petitioner
is an appropriate and effective remedy, where all
the questions raised herein regarding the welfare
and well being of the children can be considered in
accordance with law, after appreciation of the
evidence, which may be led by the parties.
Accordingly, we dismiss this writ petition on the
ground of maintainability. However, we request the
10th Additional District Judge, Alipore, Kolkata to hear
and decide the pending case No. 88 of 2017 as
expeditiously as possible, and in accordance with law,
preferably within six months from the filing of a certified
copy of this order, along with an application for
expeditious disposal of the pending case.”
37(ii). In Rajeswari Chandrasekar Ganesh versus
State of Tamil Nadu and others, (2023)
12 SCC 472, the Hon’ble Supreme Court has mandated
that in order to enable the parties to assert the claim for
custody when the claim for custody is disputed by the
parties then, such a claim cannot be gone into in Habeas
Corpus Petition under Article 226 of the Constitution of
India and such a right can be claimed on the basis of
pleadings and evidence adduced before the competent
Court under the Guardians and Wards Act, in the
following terms:-
“80. A mere reading of the provisions of the two
Acts referred to above makes it obvious that the
welfare of the minor predominates to such an
38extent that the legal rights of the persons claiming
to be the guardians or claiming to be entitled to
the custody will play a very insignificant role in the
determination by the court.
86. The exercise of the extraordinary jurisdiction
for issuance of a writ of Habeas Corpus would,
therefore, be seen to be dependent on the
jurisdictional fact where the applicant establishes a
prima facie case that the detention is unlawful. It is
only where the aforementioned jurisdictional fact
is established that the applicant becomes entitled
to the writ as of right.
99. Thus, it is well established that in issuing the writ of
Habeas Corpus in the case of minors, the jurisdiction
which the Court exercises is an inherent jurisdiction as
distinct from a statutory jurisdiction conferred by any
particular provision in any special statute. In other words,
the employment of the writ of Habeas Corpus in child
custody cases is not pursuant to, but independent of any
statute. The jurisdiction exercised by the court rests in
such cases on its inherent equitable powers and exerts
the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and
scope of the inquiry and the result sought to be
accomplished call for the exercise of the jurisdiction of a
court of equity. The primary object of a Habeas Corpus
petition, as applied to minor children, is to determine in
whose custody the best interests of the child will prob-
ably be advanced. In a habeas corpus proceeding
brought by one parent against the other for the
custody of their child, the court has before it the
question of the rights of the parties as between
themselves, and also has before it, if presented by
the pleadings and the evidence, the question
of the interest which the State, as parens
patriae, has in promoting the best interests of the
child.
116. As observed by this Court in Vivek Singh v. Romani
Singh, in cases of this nature, where a child feels
tormented because of the strained relations between
her parents and ideally needs the company of both of
them, it becomes, at times, a difficult choice for the court
to decide as to whom the custody should be given.
However, even in such a dilemma, the paramount
consideration is the welfare of the child. However, at
times the prevailing circumstances are so puzzling
that it becomes difficult to weigh the conflicting
parameters and decide on which side the balance
tilts.
39
37(iii). While dealing with the claim for custody
of a female child, by way of a Habeas Corpus Petition,
the Hon’ble Supreme Court outlined in Somprabha
Rana and others Versus State of Madhya Pradesh
and others, (2024) 9 SCC 382 that the substantive
proceedings can be the appropriate Court to decide the
issue of custody and guardianship under the Guardians
and Wards Act, where the Court concerned interacts with
the child, afford access and deal with the custody on the
basis of evidence adduced by the parties. The dispute
was custody of the girl child and the contest was
between the maternal side and the paternal side after
the mother had died an unnatural death. The relevant
part read as under:-
“1. “This appeal arises from a very unfortunate
dispute about the custody of a female child (for
short, ‘the child’) whose present age is two years
and seven months. The mother of the child
unfortunately died an unnatural death on 27 th
December 2022. It is alleged that the death of the
mother was by hanging. The 4th respondent is the
father of the child. The 2nd and 3rd respondents
are the paternal grandparents of the child. The 5th
respondent is the sister-in-law of the 4th
respondent (his brother’s wife).
2 to 11 xx xxx xxx xxxx
12. The High Court was dealing with the custody
of the child, whose age at that time was one year
and five months. The child had been in the custody
40of the appellants from the tender age of 11
months after her mother died. The child, at
present, has been in the custody of the appellants
for more than one and a half years. When the
Court deals with the issue of Habeas Corpus
regarding a minor, the Court cannot treat the
child as a movable property and transfer
custody without even considering the impact
of the disturbance of the custody on the
child. Such issues cannot be decided
mechanically. The Court has to act based on
humanitarian considerations. After all, the Court
cannot ignore the doctrine of parens patriae.
Learned senior counsel appearing for the 2nd to
5th respondents submitted that if the Court is of
the view that there is no proper consideration by
the High Court, the order of remand may be
passed to the High Court.
13. We believe that considering the peculiar
facts of the case and the child’s tender age,
this is not a case where custody of the child
can be disturbed in a petition under Article
226 of the Constitution of India. Only in
substantive proceedings under the GW Act
can the appropriate Court decide the issue of
the child custody and guardianship. Regular
Civil/Family Court dealing with child custody
cases is in an advantageous position. The
Court can frequently interact with the child.
Practically, all Family Courts have a child centre/
play area. A child can be brought to the play
centre, where the judicial officer can interact with
the child. Access can be given to the parties to
meet the child at the same place. Moreover, the
Court dealing with custody matters can
record evidence. The Court can appoint
experts to make the psychological
assessment of the child. If an access is
required to be given to one of the parties to
meet the child, the Civil Court or Family
Court is in a better position to monitor the
same.
14. Coming to the facts of the case, at this stage,
it will be very difficult to decide whether the
welfare of the minor child requires custody of the
41maternal aunts to be disturbed. The child has not
seen the father and grandparents for over a year.
At the tender age of two years and seven months,
if custody of the child is immediately transferred to
the father and grandparents, the child will become
miserable as the child has not met them for a
considerably long time. Moreover, even the
contesting respondents have not alleged that the
child is not being looked after properly by the
appellants. Whether the father is entitled to
custody or not is a matter to be decided by a
competent court, but surely, even assuming that
the father is not entitled to custody, at this stage,
he is entitled to have access to meet the child. It is
in the child’s best interest that she knows her
father and grandparents and remains with them
for some time to begin with.
15. We repeatedly asked the learned senior
counsel representing the husband whether the
husband was willing to apply for custody. However,
he has shown unwillingness to apply for custody.
The husband is a member of the Bar practising at
the Indore Bench of the Madhya Pradesh High
Court. Even he was personally present during the
hearing. However, the learned senior counsel
appearing for the appellants stated that the
appellants or any of them would apply for claiming
declaration as a guardian and retaining the
custody. The earlier application filed by the
appellants has been withdrawn. However, orders
of the Court regarding custody are never final.
Therefore, we propose to permit the
appellants or any of them to apply for
custody to the Regular Court under the GW
Act. Even in the petition filed by the appellants,
the competent Court can permit the father to take
over the custody if it is satisfied that the welfare of
the minor requires custody to be granted to the
father.
17.1 The impugned judgment and order dated
23-6-2023 is set aside, and Writ Petition No. 11004
of 2023 is hereby dismissed. We make it clear
that the Writ Petition is dismissed not on
merits but on the ground that on facts, the
discretion could not have been exercised
42under Article 226 of the Constitution of India
to disturb the custody of the appellants at
this stage;
17.5 As assured to the Court, the appellants
or some of them shall file a petition seeking
a declaration of guardianship and permanent
custody of the child under the provisions of
the GW Act before the competent Court
within a maximum period of two months
from today;”
37(iv). In Nirmala‘s case (supra) the Hon’ble
Supreme Court has outlined that the extraordinary
jurisdiction under Article 226 of the Constitution of
India,by way of a Habeas Corpus Petition would not be
maintainable where detailed enquiry is required under
the Guardians and Wards Act. The establishment of the
factum of custody being illegal or without authority
of law and the fact-situation where paramount interest of
welfare of a minor child could be served in facts only in
the process under the provisions of Guardians and Wards
Act, as per the following observations:-
“24. This Court in Tejaswini Gaud case further
held that in child custody matters, the ordinary
remedy lies only under the Hindu Minority and
Guardianship Act or the Guardians and Wards
Act as the case may be. It has been held that
43there are significant differences between the
enquiry under the Guardians and Wards
Act and the exercise of powers by a writ court
which is summary in nature. It has further
been held that what is important is the
welfare of the child. It has been further held
that where the court is of the view that a
detailed enquiry is required, the court may
decline to exercise the extraordinary
jurisdiction and direct the parties to approach
the civil court.
30. We are of the considered view that in the
peculiar facts and circumstances of the case, the
High Court ought not to have entertained the
habeas corpus petition under Article 226 of the
Constitution of India. Since a detailed enquiry
including the welfare of the minor child and
his preference would have been involved,
such an exercise could be done only in a
proceeding under the provisions of
the Guardians and Wards Act, 1890.
33. We therefore find that the High Court was
not justified in entertaining the petition
under Article 226 of the Constitution of India.
The impugned judgment and order of the Punjab
and Haryana dated 23-8-2022 in Kulwant Singh v.
State of Haryana is quashed and set aside. The
writ petition filed by the respondent- father is
dismissed.
35. In the light of the aforesaid, we direct that
in the event the respondent-father files an
application under the provisions of
the Guardians and Wards Act, 1890, the
competent Court shall decide the same
44expeditiously. We further direct that in the event
such an application is made, an order at least with
regard to visitation rights would be passed within a
period of 4 weeks from the making of such an
application.”
38. Resultantly, we decline to exercise our extra
ordinary jurisdiction to grant habeas corpus and leave the
parties to seek their rights for custody of children in
accordance with law before the Guardian Court. It shall
be open for the petitioner as such to file appropriate
petition seeking necessary relief along with application for
visiting rights. On filing of such petition, pleadings shall be
completed expeditiously within a period of six weeks by
respondents No. 5 wife and thereafter the Courts will
examine the issue of visiting rights.
39. Since the coordinate Bench vide order dated
13.10.2023 has permitted the petitioner to meet minor
children on everyday between 3 P.M. to 7 P.M. and on
holidays to take children out from 9 A.M to 5 P.M. and
thereafter also allowed him to keep custody of the minor
children during April, vacation. We are of the considered
opinion that till interim orders are passed by the Guardian
Court on filing of the petition, petitioner shall be entitled
to visit his daughters on regular basis on every Sunday
45
from 10 A.M. to 5 P.M. and on 2nd and 4th Saturday he is
entitled to one overnight custody.
40. Similarly, during June vacation in the High
Court, the petitioner would be entitled to keep the children
for a period of ten days starting from 7 th June, 2025 till 15th
June, 2025 which is summer break for this Court. The
visiting rights are only interim till the Guardian Court
decides the application.
41. The petition is accordingly disposed of along
with pending miscellaneous application (s) if any.
(G.S. Sandhawalia)
Chief Justice
(Ranjan Sharma
May 09, 2025. Judge
(cm Thakur)
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