DHIRAJ KUMAR MAKHIJA Vs. DWARKA NATH VOHRA

JUDGEMENT

(1.) THIS petition has been filed under Article 226 of the Constitution of India, by Dhiraj Kumar Makhija against Dwarka Nath Vohra, and others, for the issue of a Writ of Habeas Corpus against the respondents, for production and release of a baby girl aged about 2 -3/4 years, named baby Chintal. It is not disputed that the petitioner was married to Rita, daughter of respondents 1 and 2 and sister of respondent No. 3, who is about 17 years of age. Out of the wedlock, a baby girl named Chintal was born to the couple on December 27, 1982. It is stated that Rita wife of the petitioner died of burn injuries on April 18, 1984 at Chandigarh. According to the petitioner, the respondents had tried to implicate the, petitioner in a false case. So far as the baby is concerned, the petitioner claims that it was with him for about four months after the death of Rita. The infant was looked after by the petitioner with the help of his mother. It is further alleged that in the month of July (the year is not indicated) the respondents visited the house of the petitioner and requested him to permit baby Chintal to go with them to Ropar for a few days. The petitioner, acceded to the request. Later on when the petitioner asked the respondents to return the baby, they put him off on one pretext or the other. It is further stated that the respondents demanded Rs. 20,000/ - for the return of the child. It is also averred that the respondents have filed a petition under section 125 of the Code of Criminal Procedure, for the maintenance of baby Chintal, in the Court of Chief Judicial Magistrate, Ropar. In the wake of these allegations the petitioner urged that he being the natural guardian of baby Chintal, was entitled to her custody and that the baby was being illegally detained' by the respondents at Ropar. Hence, the prayer for the issue of a Writ of Habeas Corpus.

(2.) THE respondents filed a reply to the above petition in which preliminary objections were taken to the effect that the petition for maintenance had already been filed on behalf of baby Chintal under section 125, Code of Criminal Procedure, On April 20, 1985, in the Court of the Chief Judicial Magistrate, Ropar, which matter was pending consideration in that Court. The present petition is said to have been filed with the purpose of pressurizing respondent No. 1 to withdraw the aforesaid petition for maintenance. Another objection taken is that the petitioner has an adequate and efficacious remedy under the Guardians and Wards Act, for claiming the custody of the child, which he has not utilised. Certain facts relating to the marriage of the parties and the subsequent conduct of the petitioner in maltreating his wife, have been narrated in the reply. It was also averred that the petitioner had not been prosecuted for having caused burn injuries to his wife, as he had confessed his guilt and had apologised for the act. The alleged demand of Rs. 20,000/ - for returning the child was refuted. It was, however, stated that the petitioner had been asked to fulfil his promise of maintaining the child by depositing Rs. 20,000/ - in her name, from which he had hacked out. As regards the custody of the child, it is averred that even though the petitioner is a natural guardian, he had not behaved like a father, the reference being to the causing of the death of his wife, Rita. An insinuation was also made that the petitioner had many vices, he was drunkard and an untrustworthy person who cannot look after the child. On the question of the alleged illegal detention of the child, it is stated that the child was in the custody of the maternal -grand -parents and had been with them from the very beginning, with the consent of the petitioner.

(3.) THE petitioner filed a rejoinder to the reply filed by the respondents, in which he reiterated the allegation that the child had been kept in illegal detention by the respondents. He maintained that his wife had died on account of an accident through fire. In regard to the mention in the letter sent by the petitioner that he had not seen the child for a year, it was explained that the same was a general remark and not a statement or an admission.