JANAK KUMARI Vs. R C KOTWAL

JUDGEMENT

(1.) This is a habeas corpus petition instituted by the mother of two minor girls, Monica and Ambika, aged 13 and 12 respectively, against the respondent who obtained an ex parte decree of divorce against the petitioner on July 6, 1978 and who has taken away the minor daughters with him to Mandi on March 14, 1987. Several disputed questions of fact are sought to be raised in the course of this proceeding but it IS not necessary to determine all those disputes. We shall confine our attention only to those material aspects, which have a bearing on the question of the right to the custody of the minor girls. The facts, which are not in dispute or which are incapable of being disputed, are as follows:

(2.) A few of the relevant facts in controversy between the parties may also be set-out. According to the petitioner, the petition for divorce was filed while she and the respondent were staying under the same roof and the proceedings resulted in an ex parte decree of divorce since she did not appear or cause an appearance to be made in view of the assurance held out by the respondent that he was not inclined to pursue the divorce petition and that he would withdraw the same on the next day of hearing. The respondent has denied that he held out any such assurance to the petitioner. According to the petitioner, she learnt about the divorce decree for the first time on April 17, 1985, whereas according to the respondent she knew about the same since 1978. According to the petitioner, without disclosing the factum of divorce, the respondent continued to live with her under the same roof at Simla till April 3, 1985. The learned Counsel for the respondent stated that till his remarriage on January 13, 1985, the respondent lived in the same building in which the petitioner was living but in a separate room adjacent to the premises of the petitioner and that thereafter he hired separate premises at Totu, Simla, where he was living with his second wife. According to the respondent, the petitioner herself had requested him to take the two minor daughters to Mandi and she had also made an application to the school authorities in Simla to issue their school leaving certificates. The petitioner has denied this allegation and averred that the so called applications for the issue of the school leaving certificates are forged. The petitioner has alleged that the respondent had also taken away the school, leaving certificate of the third child, a minor son aged about 10, with the intent of taking him away to Mandi. This fact is not in dispute although the parties are at variance as to the circumstances under which the respondent obtained the school, leaving certificate. According to the petitioner the said act on the part of the respondent was against her wishes whereas, according to the respondent, it was a step taken in furtherance of an agreement between him and the petitioner. According to the respondent, the custody of the minor girls with him is neither illegal nor against their wish and he is more suited than the petitioner to retain the custody and it is for the ultimate welfare of the minor girls to allow him to retain the custody. The petitioner has controverter this assertion and laid a claim to the custody of the girls on the ground that she being their mother and they having lived with her for all these years, the welfare of the minors would be better served by restoring their custody to her. The petitioner has alleged that she was deprived of the custody of the minor girls by resorting to force and the girls were taken to Mandi against their wish. The case of the respondent, on the other hand, as earlier pointed out, is that no force was used and that he took his minor daughters to Mandi with the consent of the petitioner. In the return filed by the respondent, there is an allegation that the petitioner is a lady of easy virtue; this is merely a vague allegation and is not supported by any evidence nor are any particulars furnished which could justify such an inference being raised against her. The petitioner has stoutly controverter such allegations.

(3.) The question which arises against the aforesaid background is whether in the exercise of its writ jurisdiction, the Court should order that the custody of the minor girls be resorted to the petitioner.