PRICELLA PRIM WIDOW Vs. BASHIR MASIH

JUDGEMENT

(1.) THE petitioner Pricella Prim, has sought the custody of her son Javed alias Kaki aged 10 years, who is stated to be in the illegal custody of his father's brother and sister namely Bashir Masih and Mills Alice respondents in this case. The case of the petitioners is that the marriage between her and Nazar Masih took place in the year 1983 and the parties lived together at Tandu Urmur till 1988. It is alleged that Nazar Masih was admitted in Christian Medical Hospital, Ludhiana in June, 1988 and was discharged after a period of 30 days after having been treated for a disease which had led to damage of the brain and it was after his return back to his home in August, 1988, that the petitioner was allegedly turned out at the instance of the respondent and the child Javed was retained by them and the father. The petitioner, thereafter, filed an application under Section 25 of the Guardians and Wards Act, in the Guardian Court at Ludhiana, but on November 18,1991, the Judge returned the application to the petitioner for presentation in the proper Court holding that the Court at Ludhiana had no territorial jurisdiction to entertain the same. It is the admitted case that no further application under that Act, has so far been filed.

(2.) NOTICE of the present petition was given to the respondents and a reply has been filed in response thereto while denying the allegations on facts, the respondents have also taken a preliminary plea that a writ of habeas corpus seeking release of the child Javed was not the proper remedy as the petitioner ought to have moved the Guardian Court, more particularly as she had already done so at Ludhiana

(3.) MR. Bakshi, learned counsel for the petitioner has urged in response to the preliminary plea that the writ of habeas corpus was, infact, the only efficacious remedy available to the petitioner and in a writ of habeas corpus, the question of detention of a minor child be gone into. In support of this argument, has-cited Smt. Usha Devi and Anr. v. Kailash Narain Dixit and Ors. , A. I. R. 1978 M. P. 24, Km. Sunita and Anr. v. Smt. Shyam Kali, A. I. R. 1982 Allahabad 1, and Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, A. I. R. 1982 S. C. 792.