GIPPY ARORA Vs. STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) PETITIONER through this habeas corpus petition has sought the production of her minor son -Master Dasasya Singh and his release from the custody of respondents No. 2 to 4 on the ground that the child has been removed from the lawful custody of the petitioner by practicing fraud and deceit pursuant to a well planned conspiracy and has been forcibly detained. As per the averments in the petition, the marriage of the petitioner was performed with respondent No. 2 on October 17, 2003 at Amritsar. Respondents No. 2 and 3, however, have turned her out from her matrimonial home in October 2004 while she was expecting delivery within two months. The petitioner gave birth to a male child -Master Dasasya Singh on May 15, 2005 at Amritsar at her parental home. Respondents came to see the child after five months after the birth. Matter was compromised and she was taken back to her matrimonial home. She was again turned out after a period of 4 months alongwith her son. She stayed with her parents for about 15 moths alongwith her son but they were again taken back to the matrimonial home. On the day of Diwali in 2007 petitioner alongwith her child was again turned out of the house. Petitioner claims that she has been staying with her son at Amritsar. Respondent No. 4, the father -in -law of the petitioner is a retired Additional Director General of Police and enjoys lot of influence in Gujarat being an Ex. IPS Officer. The father of the petitioner was summoned by her father -in -law and mother -in -law through SHO Police Station Civil Lines, Amritsar in the Police Mess where the parents of the petitioner were threatened and asked to handover the custody of Master Dasasya Singh to them but he refused. On June 8, 2008, respondent No. 2 -husband came to the house of the petitioner and requested for taking the child out for some time. Pursuant to the consent of the petitioner, the child was taken out for two hours and was returned back. Again the next date on June 9, 2008, respondent No. 2 husband took the child for three hours and returned the child. It was again repeated the following day. On Thursday (12th June 2008) when the child was taken by respondent No. 2 on the pretext of roaming around, it was not returned. Petitioner tried to contact respondent No. 2 on telephone but he did not respond. Petitioner contacted the relatives of respondent No. 2 at Amritsar, she was informed that the child had been taken away to Ahmedabad. Petitioner claims that respondent No. 2 has removed the child from the lawful custody of the petitioner by practicing deceit, as such the child is in illegal custody of respondent No. 2.

(2.) IN reply to the notice issued to the private respondents, the maintainability of the petition has been challenged. It has been claimed that respondent No. 2 being father and natural guardian cannot be said to be in illegal custody of the child. Allegations have been levelled that the petitioner had treated respondent No. 2 with cruelty, therefore, respondent No. 2 has filed a petition for grant of divorce before the Family Court at Ahmedabad. In the said petition, respondent No. 2 has also filed an application praying for custody of the minor child. The Principal Judge vide order dated July 3, 2008 has passed an order of status quo regarding the custody of the child. Copy of the divorce petition has been placed on record as annexure R -2 alongwith copy of the application under Section 26 of the Hindu Marriage Act and order dated July 3, 2008 passed by Principal Judge, Revisional Court, Ahmedabad in the matrimonial proceedings.

(3.) VIDE an interim order dated July 17, 2008, a Coordinate bench of this Court had directed the minor child to be produced in the Court. The respondents had preferred an SLP before the Hon'ble Supreme Court being SLP (Crl.) No. 5358 of 2008. The Hon'ble Supreme Court was pleased to set aside the said order vide order dated October 17, 2008 and granted interim stay by passing the following order : -