SMALI BAGGA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Smt. Smali Bagga has filed this petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of habeas corpus for directing her husband-respondent No. 2 to produce and to handover the custody of her two minor sons, namely, Pratyush (born on 24-11-1988) and Himen (Born on 16-9-1990).

(2.) The petitioner was married to respondent No. 2 on 12-10-1987 at Jalandhar. Out of this wedlock, two children namely, Pratyush and Himen were born on 24-11-1988 and 16-9-1990. It is alleged in the petition that the parents of respondent No. 2 were not happy with the dowry given in the marriage and at the instance of her parents, respondent No. 2 used to taunt and harass the petitioner. It is also alleged that even with the gifts given at the time of the birth of these two children, neither the respondent nor his parents were satisfied or happy. It has been alleged that she has been treated with cruelty throughout and ultimately on 14-8-1994 she was thrown out of her matrimonial house after getting her signatures on blank papers and the said two children were kept in illegal custody by respondent No. 2. It has been alleged that father of respondent No. 2 has already died on 24-1-1995 and his mother is aged about 70 years and is unable to look after the said children and even otherwise the second child, namely. Himen is less than 5 years of age. It has been admitted that a petition under Section 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956, has been filed for the custody of the children and is pending in the Court, but it is alleged that the same would take a long period and would defeat the very objective of the welfare of the children.

(3.) On a notice given to respondebt No. 2, it has been stated in his reply that the present petition is not maintainable in asmuch as the children are not in illegal custody since respondent No. 2 is the natural and legal guardian of his minor sons, and that the petitioner has already filed a petition under Section 25 of the Guardians and Wards Act claiming the custody of the said children in a Court at Phagwara which is pending for disposal. The allegations regarding cruelty on account of demand of dowry or harassment for want of gifts at the time of the birth of the two children or otherwise have been denied. It has been further stated that the petitioner has no independent source of income of her own and in the proceedings filed by respondent No. 2 for a decree of divorce, the petitioner has been granted maintenance on the ground, that the admitted position is that the petitioner is not having any independent source of income and is totally dependent upon the respondent and as such she is not a fit person to take the custody of the said children as she cannot afford to give them proper and higher education nor can maintain them in a proper atmosphere. It has been explained that the mother of this respondent is not suffering from any disease as alleged, that the two children are being looked after by respondent No. 2 and his mother to the best of their ability and capability and every care is taken for the welfare of these children. It has been further stated that both the children are being imparted very good education and they are studying in second class and K. G. Class respectively.