NIBHA KUMARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition has been filed by the wife for custody of her ten months old son. The respondents are the husband and in -laws The case of the petitioner is that she was married to respondent no. 2 Dhananjay Singh on 11th July 2000 at Dhanbad. On 12th July 2000 she came to her in -laws house at Patna. After sometime the inlaws started ill -treating her. On 23rd November 2000 she went to Dhanbad where her parents live. On 11th April 2001 she gave birth to a male child. None turned up from the in -laws side, not even respondent no. 2 to see the child. On 25th June 2001 she came to Patna on her own. After coming to Patna she was continuously tortured by the in -laws including respondent no. 2 on the ground that she had not brought enough dowry. On the day previous to Dipawali she was even beaten up by respondent no. 2. When the situation did not improve the petitioner informed her parents about her plight. On 3rd December 2001 her brother came to Patna and took her to Dhanbad. While she was entering into the car respondent no. 2 forcibly snatched her then 7 months old son from her lap. The petitioner thereafter tried he best to get the custody of the child. She was told that she would not be allowed to see the child unless dowry demands are satisfied. In these circumstances, the petitioner has approached this Court seeking writ in the nature of habeas corpus for the custody of the child.

(2.) IN response to notice, the husband i.e. respondent no. 2 has filed counter affidavit in which he has made counter allegations against the petitioner and the members of her family. According to him the root cause of the problem is that the petitioner wants to join the legal profession, live in a separate house and start practice together with the respondent. (It may be mentioned that both the petitioner and respondent no. 2 are said to have appeared at the final part of the L.L.B. Examination). According to the respondent the petitioner is guided by her parents, brothers and sisters and she does not pay heed to the respondent or other in -laws. However, the respondent is prepared to forget the past and accept the petitioner. So far as the custody of the child is concerned, she has to return to the respondents house instead of claiming separate custody.

(3.) WHEN the case came up for hearing on 3rd April 2002 the Court observed that the fathers custody may not be said to be illegal and, therefore, the petitioner may not be entitled to writ in the nature of habeas corpus which can be issued only in cases of illegal custody or confinement. Nevertheless notice was issued to the respondents with a view that the dispute between the parties may be amicably settled at the intervention of the court. On 20th May 2002, after hearing the parties, on compassionate ground, custody of the child was directed to be handed over to the petitioner temporarily till 24th June 2002. This was done in Court on 21.5.2002. The case was ordered to be listed on 25th June 2002 for further direction. Thereafter, the case came up for hearing a number of times, in the facts and circumstances, we decided to talk to the wife -petitioner and the husband -respondent no. 2 in Chambers. We did so on 1st July 2002. On 2nd July 2002 we heard their respective father in Chambers. Since we do not propose to finally adjudicate upon the question of custody of the child as between petitioner and respondent no. 2, we do not wish to make observations which may cause prejudice to them. Nonetheless, for the purpose of this order we must observe that the attitude of the respondents side was far from inspiring. Though in the affidavit respondent no. 2 stated in clear terms that the petitioner is welcome in his house, we were distressed to note that in course of proceeding on 2nd July 2002 he stated that he would rather prefer to live without a wife than a characterless wife. This made us abandon our efforts for amicable settlement.