SUNITA MALIK Vs. DHARAM VEER SINGH MALIK

JUDGEMENT

(1.) IT is an unfortunate case where two minor boys aged about 7 years and 8-1/2 years have not only been deprived of the company of their mother for over two years but they have also become subject matter of litigation. None- else but their own parents are responsible for this unhappy state of affairs. Their father is suffering from the ego of a typical Indian husband and their mother appears to be overconscious of her job and asademic achievements.

(2.) THIS petition under Article 226 of the Constitution has been filed by Smt.Sunita Malik for a writ of habeas corpus directing the opposite parties to produce her sons Pulkit Malik and Ankit Malik in this Court so that their custody may be given to the petitioner, who is their mother. D. V. Singh Malik, who is the father of the children, has been arrayed as opposite party no. 1 and Vikram Singh, their grand father, has been arrayed as opposite party no. 2. The petition is a long one and runs into 54 paragraphs. The main allegations in the petition are that the petitioner Smt. Sunita Malik is M.Sc. Ph.D. and is a lecturer in Dayawati Modi Academy, a public school in Modipuram. Meerut. She was married to D. V. Singh Malik, who is M.Sc. and is working with Modi Rubbers Out of the wedlock she was blessed with two sons Pulkit and Ankit. Initially the petitioner and her husband were living at Meerut 'in various rented accommodations but in June, 1988, they shifted to the newly constructed house of the father of the petitioner, Dr. Chokhe Singh. Both the sons of the petitioner were admitted in the Dayawati Modi Academy and were studying there, ' It is alleged that opposite party no.1 wanted to somehow grab the house of the petitioner's father situate at E-6 Pallavpuram. Meerut, but when it was resented he became very sore, withdrew himself and denied the petitioner of his society. On 12th April, 1989, the opposite party no.1 took the children out on the pretext of taking them to Navchandi fair and then to Muzaffarnagar to enable his parents to meet them. However, subsequently she received a legal notice on 15th April 1989, from her husband informing her that the children had started living with their grand-father at Muzaffarnagar. On 17th April, 1989, O. P. No. 1 filed a suit for injunction in the court of the Civil Judge, Muzaffarnagar, and an injunction order was passed against her, The petitioner filed a petition under the Guardians and Wards Act for appointment of guardian of the person of the minors in the court of the District Judge Meerut but the proceedings of the said case were got stayed by O, P. No. 1 by filing a transfer application in the High Court. It is also averred that the petitioner had not been able to meet her two sons for the last two years except on three or four occasions. The children were greatly attached to their mother but they were being forcibly detained by the opposite parties at Muzaffarnagar against their wishes, It is further averred that the petitioner being a lecturer, is earning good salary and can look after the children better than O. P. No. 1, who being employed in a factory, has long working hours and is not able to devote any time to them

(3.) SHRI Ravi Kant, learnned counsel for o.p.no. 1, has contended that the children were not being forcibly or unlawfully detained and a writ of habeas corpus was not maintainable. The argument of the learned counsel is not tenable as it is well settled that a writ of habeas corpus would be maintainable to enforce the legal right to the custody of minors. In the law of Extraordinary Legal Remedies by Ferris and Ferris it has been observed as follows in para 4 of the chapter dealing with habeas corpus :-