SUMEDHA NAGPAL Vs. STATE OF DELHI

JUDGEMENT

(1.) The Petitioner is the mother of a child of tender age of about two years and claims his custody on the ground that she has been deprived of the same by deceitful means by Respondent No. 2, the father, by driving her out of the house; that-under proviso to Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 [for short 'the Act') , the custody of a minor child, who has not completed the age of five years should ordinarily be with the mother recognising the universally accepted notion of maternal instinct and selfless love, who needs her affection and for which there is no adequate substitute; that the paramount interest of the child lies in giving such custody to her instead of continuing such custody with the father. The case of Respondent No. 2 on the other hand, is that the Petitioner abandoned the child and went to her parent's house and, therefore, the question of her claiming the custody does not arise at all. More so, when the child is in his custody to the exclusion of the Petitioner for nearly seven months, that is, from August 1,1999 and any disturbance by changing the custody now is not conducive to the welfare of the child. It is also contended on behalf of the Respondent No. 2 that, however expansive may be the concept of life and liberty under Article 21 of the Constitution, it would not give rise to a right to issue of a writ of habeas corpus under Article 32 of the Constitution thereby treating the custody of the child with him as unlawful so as to give the custody of the child to the Petitioner. Whatever may be the rights arising under proviso to Section 6 (a) of the Act, the same would not militate against the welfare of the minor child and particularly in the absence of any material to show that such welfare is in jeopardy, this Court ought not to exercise its power under Article 32 of the Constitution. Learned Counsel on either side have relied upon a large number of decisions to support their respective cases, but in the view we propose to take, it is unnecessary to examine any one of them.

(2.) Both parties do recognise that the question of custody of the child will have to be ultimately decided in proceedings arising under Section 25 of the Guardians and Wards Act read with Section 6 of the Act and while deciding such a question, welfare of the minor child is of primary consideration. Allegations and counter allegations have been made in this case by the Petitioner and Respondent No. 2 against each other narrating circumstances as to how the estrangement took place and how each one of them is entitled to the custody of the child. Since these are disputed facts, unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as writ petition under Article 32 of the Constitution.

(3.) Without expressing any view on the pleadings raised in this case and making it clear that it is neither appropriate nor feasible in the present case to investigate the correctness of the same and decide one way or the other, we propose to relegate the parties to work out their respective rights in an appropriate forum like the Family Court or the District Court in a proceeding arising under Section 25 of the Guardians and Wards Act read with Section 6 of the Act or for matrimonial relief.