NANDITA VIRMANI Vs. RAMAN VIRMANI

JUDGEMENT

(1.) THE petitioner and the respondent were married on Jan. 1, 1975 at Delhi. For some time they lived abroad but since Sept. 1976 have been living at Delhi. A son was born out of the wedlock on Jan. 24, 1977. It seems that the married life of the parties has been a stormy one. According to the petitioner she has been subjected to physical and mental cruelty by the respondent, that the respondent loses his temper and, in the words of the petitioner, he "works himself up to a state of frenzy using foul language" against the petitioner and her parents. According to the respondent the petitioner completely neglects the normal duties expected of a wife or a mother which results in friction between the parties. It is neither necessary nor desirable that we go into the allegations and counter -allegations. Suffice it to say that the couple is unable to lead a peaceful normal married life. The petitioner alleges that she had often been given corporal beating by the respondent which the respondent denies. In any case it is obvious that on July 12, 1981 some incident took place, and we do not say who was at fault, resulting in a grave situation arising between the husband and wife. On July 13, 1981, according to the petitioner, she was turned out of the house by the respondent but, according to the respondent, the petitioner left the house to stay with her parents. Their son remained in the custody of the respondent. We say that the son remained in the custody of the respondent without, in any way, dealing with the rival contentions of the parties as to why the son remained with the respondent. The petitioner wanted the custody of the child but the respondent was not willing to allow that. The child was as on July 13, 1981 under 5 years of age but was going to school. It appears that the respondent either under a genuine belief and having genuine apprehension or a misguided belief and ill -founded apprehension came to the conclusion that the petitioner may forcibly take her son away with her from the school. The relationship between the parties had deteriorated to such an extent that instead of acting in any other acceptable manner the respondent filed a suit for injunction in the civil courts at Delhi on July 20, 1981 seeking a permanent injunction against the petitioner for restraining her from removing the child and taking him away with her. An application under Order 39, Rules 1 and 2 C.P.C. was also moved seeking a temporary injunction restraining the petitioner from removing the child from the custody of the respondent till the final decision of the suit. Notice of the application was ordered for July 24, 1981. On that date the petitioner put in appearance in the court of Shri V.K. Jain, Sub Judge 1st Class, Delhi, and made a statement to the effect that she will not remove the child physically without due process of law during the pendency of the suit. Shri V.K. Jain, Sub Judge 1st Class tried to have the dispute reconciled in chamber but the efforts were not fruitful. The respondent, however, in view of the undertaking given by the petitioner in the civil court did not press his application for temporary injunction. An interim arrangement to enable the petitioner to see her son and collect her clothings from her husband's house was worked out by Shri V.K. Jain on July 31, 1981 and it was duly recorded. Issues were also framed in the suit on the same date by the Sub Judge. According to the petitioner when she went to the respondent's house to meet her child, she was virtually prevented from meeting him and she came back unhappy and frustrated. It is in these circumstances that she has moved this court under Art.226 of the Constitution for issue of a writ of habeas corpus or in the nature of habeas corpus to get custody of her minor child.

(2.) THE petition came up before us on Aug. 12, 1981 when we issued notice to the respondent in show cause why rule be not issued, as prayed by the petitioner, and also directed production in court of the minor child on Aug. 14, 1981. On that date the respondent put in appearance personally as well as through counsel. The child was also produced. Reply to the notice to show cause was also filed.

(3.) WE first made an effort to see if it was possible to bring about some sort of a reconciliation between the parties. We talked to the parties in Chamber and also tried to talk to the child in the presence of his parents. We made our own observations regarding the behaviour of the child. After we had talked to the parties, we adjourned the hearing to Sept. 8, 1981 to enable the parties to reconcile their differences and did not pass any order as to the custody of the child least it should jeopardise chances of reconciliation. We also requested the counsel to lend their good offices towards reconciliation. On Sept. 8, 1981 we again made an effort at reconciliation which the parties had not been able to bring about on their own. Taking note of the serious human problem which merited solution, we even talked to the parents of the petitioner and the respondent and mooted certain suggestions for reconciliation. We are glad to note that the parties were quite responsive to our suggestions and in that context made an agreed order with regard to the custody of the child. The respondent agreed to hand over the custody of the child to the mother, the petitioner, for a week. As at that stage the respondent had apprehensions that health of the child may be put into jeopardy for he apprehended that the petitioner would not be able to look after the child, we adjourned the hearing for further directions to Sept. 16, 1981. On that date again with the consent of the parties and their counsel the custody of the child was continued with the mother and the case was adjourned for further hearing to Sept. 29, 1981. This was done in order to enable us to assess whether the apprehensions of the respondent or his allegations against the petitioner were genuine or imaginery. We were also hopeful that in this way we may be able to persuade the parties to again resume normal marital relations. On the adjourned date we made further efforts to see if we could bring the parties together in the interest of the child if not in their respective interests. Therefore, with their consent we worked out a formula by which the child could visit the father also and the father, mother and the son could spend some time together. In order to assess whether the experiment worked out with the consent of the parties we adjourned the hearing to Nov. 2, 1981. On that date on joint request the matter was again adjourned to Nov. 18, 1981. All efforts at reconciliation failed. There was bitter fight between the father and the mother for the custody of the child. Accordingly, we decided to proceed with the hearing of the case. The petitioner moved an application Criminal Miscellaneous No. 1654 of 1981, for leave to amend the writ petition and the respondent filed Criminal Miscellaneous No. 1646 of 1981 for restoration of status quo ante with regard to the custody of the child before proceeding to hearing. We gave notice of the two applications to the respective opposite parties giving them an opportunity to file their respective replies. The case was ordered to be listed on Dec. 11, 1981. On that date as one of us was unavoidably absent, the hearing had to be adjourned to Dec. 17, 1981. On the adjourned date at the request of the parties the hearing was adjourned to Jan. 6, 1982. It, was ordered that the custody of the child would continue to be with the mother. When we assembled on Jan. 6, 1982, learned counsel for the petitioner withdrew his application, Criminal Misc. No. 1654 of 1981, by which he sought to amend the petition. Leave having been granted, the application was dismissed as withdrawn. The hearing of Criminal Misc. No. 1646 of 1981, moved by the respondent was adjourned. We fixed Jan. 12, 1982 for hearing of the case. On that date the matter could not be taken up for diverse reasons and so, the hearing was adjourned to Jan. 27, 1982.