RAJEEV ALIAS RAJOO Vs. PUSHPA DEVI

JUDGEMENT

(1.) ONE Jetha Ram has filed this petition on behalf of Rajeev and Km. Arti minors. Rajeev is alleged to be five years' old while Km. Arti is alleged to be 2 1/2 years old. The allegations of Jetha are that opposite party no. 1, Smt. Pushpa Devi had two earlier issues Shailendra and Rajendra and opposite party Pushpa Devi was married with Jetha in 1978 and since then she was living with him renouncing the profession as a dancing girl. But in the year 1963 she has taken away the minor petitioners and has again resumed the profession. The prayer is that the custody of petitioners nos.1 and 2 be given to Jetha Ram and necessary writ be issued in that direction.

(2.) THE prayer has been opposed by the opposite parties. Smt. Pushpa Devi opposite party no. 1 has maintained that she is neither the legally wedded wife of Jetha Ram nor petitioners were born from him. THE opposite party is maintaining all her children including the present petitioners and giving eduction etc. THE opposite party carries a profession of dancing girl and singer and is registered as such as per Annexure I of the counter affidavit.

(3.) RELIANCE was placed upon the case of Capt. Dushvant Somal v. Smt. Sushma Somal, 1981 SC Cases 414. In this case also actually the order of the High Court issuing a writ of Habeas Corpus was granted. It was, no doubt, in that case observed that an alternative remedy, that is, remedy available under the Guardian and Wards Act and Code of Criminal Procedure ordinarily inhibits a prerogative writ ; it was at the same time observed 'it is . not an impassable hurdle'. I have referred to a later pronouncement of the Supreme Court and even the entire observations in this pronouncement read together would indicate that there is no such absolute bar to granting relief in habeas corpus and I have already laid down the ratios of the latest pronouncements on this point. In the case of Gohar Begum v. Suggi alias Nazama Begum, AIR 1960 SC 93 a three Judges' pronouncement, also it was held that a remedy under the Guardian and Wards Act is no bar to writ of habeas corpus and High Court has power to (order delivery of child. In that case the High Court had held that the question of the paternity of the child was disputed and it was not the function of that court in application under Section 491 to record finding on such controversial facts but the Supreme Court did not agree with such observations and held that the welfare of the child is the main criterion. In that case it was further held that Gohar Begum was entitled to the custody of her illegitimate; daughter no matter who her father was. RELIANCE was also placed upon the case of Madras Division Bench in KMR Sultan Akbarsha v. Sultanasofia Begum, 1982 CrLJ 1617. The learned, counsel for the opposite party relied upon the observations that 'the proper and correct view is that the prerogative writ of habeas corpus is an extraordinary remedy and is generally sought for upon sufficient cause, only in cases where the ordinary remedy provided by law is not available or is inadequate or ineffective. RELIANCE was further placed upon certain observations made in paragraphs 10 to 14 of the ruling. This ruling was cited because in this case some earlier Madras pronouncement, as well as pronouncements of some High Courts were considered. [ have referred to two Supreme Court pronouncements in the case of Gohar Begum (Supra) and in the case of Dr. Veena Kapoor (supra) and in view of these two pronouncements of the highest courts as well as in view of ratio of the rulings of Allahabad and Supreme Court laid down earlier and reconciling them I hold that the present habeas corpus petition is maintainable and simply because there is an alternative remedy under the Guardian and Wards Act which has not been availed of this petition cannot be rejected.