DURGESH KUMAR AHUJA Vs. VINEET KHURANA

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution of India praying for issuance of a writ, order or direction in the nature of babeas corpus directing the respondents to produce the petitioner's infant daughter Deepam in Court and make her over to the custody of the petitioner.

(2.) The controversy between the parties lies in a narrow compass. It arises out of tussle for the custody of Miss Deepam, an infant daughter aged about a year of the petitioner. It is common ground between the parties that Smt. Meenakshi Ahuja, daughter of Smt. Sudershan Khurana, respondent No. 2 and sister of Sh. Vineet Khurana, respondent No. 1 was married to the petitioner on 25th of April 1983. Miss Deepam was born to her on 20th January 1984 but as misfortune would have it, Smt. Meenakshi Ahuja died on 28th January 1984 leaving behind her husband and her infant daughter as her only legal heirs. The case of the petitioner is that in order to show sympathy within the respondents shifted to his residence at 1-B/15, Ramesh Nagar, New Delhi, on 10th February 1984. They were earlier residing at 169-D, Kamla Nagar. The petitioner's mother, who was staying with his (petitioner's) brothers and sisters at Sonepat too shifted to Delhi. However, in the last week of June 1984 the respondents shifted to their own house at A-4, Phase 1, Naraina Industrial Area, New Delhi. Since the petitioner's mother had gone to Sonepat for a few days, he also shifted to the new house of the respondents at their request for some days. However, the behaviour of the respondents towards him became rude and unpleasant. So, on 11th July 1984 he shifted back to his own house but he was not permitted to take his child. On the same day, the respondents came to his house alongwith some relatives and friends and coerced him to sign some papers to the effect that he would execute an adoption deed in respect of his daughter in favour of respondent 51 No. 2. Subsequently the respondents brought a deed of adoption for being signed by him but he declined to do so. He then tried to get back has child through the mediation of his relatives and friends but in vain. Faced with this situation he lodged a report with Police Station Naraina on 17th August 1984 to the effect that his daughter was being held by the respondents against his wishes. Consequently, respondent No. 1 was summoned to Police Station on 19th August 1984 and a compromise was arrived at between the parties, copy Ex. PI, under which the respondents agreed to band over the custody of the child to him at the Police Station on 21st August 1984 while the petitioner would return various gifts and jewellery given by the respondents at the time of petitioners marriage. However, the respondents did not turn up at the Police Station on 21st August 1984 as settled and they did not make over the custody of the child to him. He sent a telegram to the respondents on 24th August 1984 (copy Ex. P3) requesting them to return his daughter but they paid no heed to it. It is further alleged that the respondents have repeatedly attempted to assault the petitioner and, therefore, he is residing away from his house, at W-15, Green Park which has been temporarily allotted to him. Moreover, the respondents are not permitting the petitioner to meet his child much less to hand over her custody to him. Since respondent No. 2 is employed as a headmistress in a school and respondent No. I is a businessman, they are away from their house during day time and the child is left to the care of Mrs. Madhu Khurana, wife of respondent No. 1, the whole day. Not only that, they were not best owing proper care and affection upon the child with the result that her upbringing and growth may be hampered. He asserts that he being the natural guardian of his daughter is entitled to her custody to the exclusion of everyone else including the respondents and as such his daughter is being held in lawful custody by the respondents.

(3.) The petition is resisted by the respondents, who assert that they never shifted to the residence of the petitioner at 1-B/51, Ramesh Nagar; instead the petitioner himself shifted to their house which was adjacent to the house of the petitioner alongwith his infant daughter. However, they admit that they shifted to their own house at A-4, Phase I, Naraina Industrial Area, in the month of June 1984. They deny that the mother of the petitioner ever shifted to Delhi or started residing with the petitioner. They assert that in fact the mother of the petitioner was permanently living at Sonepat with her grown up daughters. Indeed, their whole stand is that the petitioner had been living with them as Ghar Jawai (i.e. a son-in-law permanently living with his in-laws as a member of their family). They deny that their behaviour towards the petitioner became rude but admitted that he shifted back to his own house on 11th July 1981. According to them, they have been looking after the welfare and up bringing of the child because the petitioner expressed his inability to keep the child being all alone at Delhi and his mother not at all bothering about the care of the child. It was on that account that on 11th July 1984 the pstitioner gave an undertaking in writing (copy Ex. R 1) to give Miss Deepam in adoption to respondent No. 2 and it was further agreed that the jewellery etc. which had been entrusted to Shri Subhash Rai of Syndicate Bank, INA Branch, would be give to him after completion of all formalities of adoption in accordance with law. Correspondingly, respondent No. 2 also gave an undertaking in writing to adopt the child and to return the jewellery etc. to the petitioner on his giving the child in adoption to her. In other words, the precise case of the respondents is that they had been bestowing all love and affection on and looking after the proper upbringing and care of the child in view of the settlement arrived at between the parties. They deny that document Ex. P1 or R1 was executed by the petitioner under any threat, coercion, pressure or undue influence exercised by them. They further deny that the child was held as a hostage in illegal detention by them in order to bargain with the petitioner and force him to return the wedding gifts. The respondents instituted even a civil suit seeking an injunction to restrain the petitioner from forcibly taking away the child from their custody. In fact, the child has developed lot of affection and love for them and is living with them quite happily.