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Km. Sunita and anr. Vs. Smt. Shyam Kali - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Habeas Corpus Petn. No. 9822 of 1981
Judge
Reported inAIR1982All1
ActsConstitution of India - Article 226
AppellantKm. Sunita and anr.
RespondentSmt. Shyam Kali
DispositionPetition allowed
Excerpt:
family - custody of minor - sections 17 and 25 of guardians and wards act, 1890 - the appellant filed habeas corpus petition under article 226 - minors stay with aged, sick and uneducated maternal grandmother - father is the natural guardian - minor's welfare is the prime consideration - petition allowed - grandmother who is the opposite party directed to hand over minor to father who is the natural guardian. - - the application is supported by an affidavit of kashi pra-sad, kashi prasad is a trolley man in the northern railway and lived in loco colony in the city of kanpur. 5. kashi prasad filed rejoinder affidavit saying that it was wrong to say that the petitioners were not willing to live with him and that the petitioners were badly.....orderp.n. goel, j.1. this is a habeas corpus petition under article 226 of the constitution filed by two minors km. sunita and her brother sushil through their father kashi prasad against smt. shyam kali, step mother of their deceased mother smt. tara. the application is supported by an affidavit of kashi pra-sad, kashi prasad is a trolley man in the northern railway and lived in loco colony in the city of kanpur. smt shyam kali lives in the city of allahabad. the petition was filed on 25-8-1981. undisputedly the petitioners are living with the opposite party and receiving education at allahabad,2. the allegations of kashi prasad are that he wants to keep the minors with him, that he asked the opposite party to allow the minors to live with him and that the opposite party was illegally.....
Judgment:
ORDER

P.N. Goel, J.

1. This is a habeas corpus petition under Article 226 of the Constitution filed by two minors Km. Sunita and her brother Sushil through their father Kashi Prasad against Smt. Shyam Kali, step mother of their deceased mother Smt. Tara. The application is supported by an affidavit of Kashi Pra-sad, Kashi Prasad is a trolley man in the northern railway and lived in loco colony in the city of Kanpur. Smt Shyam Kali lives in the city of Allahabad. The petition was filed on 25-8-1981. Undisputedly the petitioners are living with the opposite party and receiving education at Allahabad,

2. The allegations of Kashi Prasad are that he wants to keep the minors with him, that he asked the opposite party to allow the minors to live with him and that the opposite party was illegally detaining them, It is undisputed that Smt. Tara died in or about the year 1974 at Aligarh. According to Kashi Prasad after the death of Smt, Tara he kept Sunita with his brother and that later on he allowed Sunita to live with the opposite party. Sushii remained with him, Since last year Sushii was kept with the opposite party, He used to meet the expenses of the maintenance of his children. He had re-married. Therefore, he wanted children back. But instead of handing over sending the children to him, the opposite party mis-behaved with him and his second wife.

3. Smt. Shyam Kali filed counter-affidavit in which she purported to depose that Kashi prasad used to illtreat Tara Devi, that therefore Tara Devi mostly used to live with her at Allahabad alone with her 3 children, that one child died at Allahabad at the age of 4 years that the two petitioners were constantly living with her that Sushil lived with his father for 2 years only and studied in classes 3 and 4 with him, that Kashi Prasad did not pay for the maintenance of the petitioners despite notice that therefore, an application under Section 125 Cr. P. C was moved on behalf of the petitioner on 15-12-1980 that Kashi Prasad then filed this petition mala fide, that Kashi prasad was never willing to keep the petitioner, Shat whenever the petitioners went to the place of Kashi prasad, they were used to be ill-treated that she had no objection in sending the petitioners to Kashi Prasad provided the petitioners were willing to live with him, that it would be unjust and inhuman if the petitioners are forced to live with him, that Kashi Prasad did not venture to move an application under the provisions of Guardians and Wards Act, 1890, that the petitioners are not at all willing to live with their father and that it was not in the interest of the minors that they should be handed over to their father.

4. Along with the counter-affidavit the opposite party filed a copy of the application under Section 125 Cr. P. C, (Annexure 1). She denied the allegation that she misbehaved with Kashi Prasad and his second wife.

5. Kashi Prasad filed rejoinder affidavit saying that it was wrong to say that the petitioners were not willing to live with him and that the petitioners were badly treated by him and his second wife,

6. During the hearing of this petition, the opposite party moved an application on 24-8-1981 supported bv her affidavit that the petitioners be examined by the Court and she be allowed opportunity to lead evidence. Kashi Prasad filed counter-affidavit on 28-9-1981 in which he contended that in these proceedings it was not permissible to take evidence and that the petitioners could give statement against him under the influences of the opposite party with whom they are living,

7. There is little variation between the parties with regard to the age of the petitioners, According to Kashi Parsad Km, Sunita is aged about 12 years and Sushil 10 years. According to Smt, Shyam Kali Km. Sunita is aged 14 years and Sushil 12 years.

8. In order to succeed in this case, it is necessary for Kashi Prasad to show two things (1) the petitioners are in the illegal detention of the opposite party and (2) it is in the interest/welfare of the petitioners that they should be handed over to him. In case of minors, it is the prime duty of the Court to sea where the welfare of the minors lies, notwithstanding the fact that their natural guardian desires to keep them,

9. Prior to the coming into force of the Constitution, habeas corpus petitions were used to be filed under Section 491 of the Code of Criminal Procedure. 1898. It is undisputed that father of the minors is their natural guardian and ordinarily he has a right to keep them with him, Therefore, a father cannot move an application for his appointment as guardian of the minors under the Guardians and Wards Act. 1890. But if the minors are not in his custody, he can move an application before the District Court under Section 25 of the said Act for obtaining their custody. bection 17 of the said Act lays down that in appointing or declaring the guardian of a minor the court shall be guided by what appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any of a deceased, parent and any existing or previous relationship of the proposed guardian with the minor had if the minor is old enough to form an intelligent preference, the court may consider that preference (vide Sub-sections (2) and (3) of Section 17), The statutory provisions contained in Section 17 can be considered in an application moved under Section 25 of the said Act.

10. In the year 1956 Hindu Minority and Guardianship Act (Act No. 32 of 1956) came into force. This Act is applicable to Hindus, Jains. Sikhs and Budhists. During the course of arguments it was said by the parties' counsel that the parties were khars. It means that the parties are Hindus. Section 6 of this Act provides that in the case of a boy or a married girl, the father is the natural guardian of a Hindu minors and after the death of the father, the mother is the natural guardian. Section 8 of this Act placed limitation on the powers of the natural guardian to transfer immovable property of a minor. Section 13 of this Act provided that in the appointment or declaration of any person as guardian of a Hindu minor by court, the welfare of the minor shall be the paramount consideration.

11. It will be seen from the above that the welfare of the minor is the paramount consideration. The learned counsel for the opposite party referred to the following observation in principles of Hindu Law by Mulla, 14th Edn. 1974 at page 976.

'In all matters relating to the custody and upbringing of the minor as well as the administration and management of the minor's property, the primary and paramount consideration for the court must be the welfare of the minor.'

12. The parties' counsel have referred to the several precedents. The cases cited by the petitioners' counsel may first be referred to;

(1) Atchayya v. Kosaraiu Narhari : AIR1929Mad81 . In this case the respondent's father of a male child aged 4 years moved an application for the custody of his own under Section 25, Guardians and Wards Act against the maternal grand-father of the child, The child's mother had died about 3 years ago. It means that she died when the child was aged about one year. The child was kept with the maternal grandfather because his mother wag suffering from some disease and it was thought advisable that the child should be separated from the mother. The father later on requested his father-in-law to send back the child to him. But his request was not met. On a consideration of the entire material the Court held that the refusal of the appellant to deliver back the child to the respondent, his natural guardian, when asked to do so by the respondent amounted in effect to a removal from his custody and that therefore the respondent could claim relief under Section 25,

(2) S. Rama Iyer v. K. V. Nataraja Iyer AIR 1948 Mad 294. In this case the petitioner moved an application under Section 491 Cr. P. C. to have the custody of his minor son aged about 13 years. Boy's mother had died when he was aged about 8 years. The petitioner had remarried about one year after the death of his first wife. He had 2 children from his second wife. The boy was living with his maternal grand-parents. It was found that during the period the boy lived with the respondent, he had completely lost his aptitude for study. Taking this fact into consideration along with other facts, it was held that the detention of the boy against the wishes of the natural guardian amounted to illegal detention and that it was not necessary that the father should have sought his remedy under the Guardians and Wards Act.

(3) Gohar Begum v. Suggi Begum : 1960CriLJ164 : In this case the appellant moved an application under Section 491 Cr. P. C, for the custody of her minor illegitimate daughter aged 6 years who was in the custody of the respondent, appellant's mother's sister. Appellant and respondent both were singing girls by profession. The appellant had developed illicit intimacy with one Trivedi, a well to do person. On account of this relationship, the daughter was born to the appellant Trivedi gave an undertaking to bring UD the female child. The Supreme Court held that the child was being illegally detained by the respondent and that the welfare of the child required that she should be given to the appellant. The Supreme Court repelled the contention that for recovering the custody of the child, the appellant should be asked to proceed under the Guardians and Wards Act,

(4) Vinayak Goyal v. Prem Prakash Goyal, 1981 All WC 457 : (1981 All LJ 752); In this case Smt. Manju Goyal moved a petition under Article 226 of the Constitution for having the custody of her son Vinayak Goyal, aged about 8 years against her parents-in-law. The Court held that notwithstanding the remedy provided under the Guardians and Wards Act, an application under Article 226 was maintainable. The Court also took into consideration the notion of welfare of a minor. On a consideration of the entire material, the Court held that the detention of minor against the wishes of his mother was illegal, that she had an indefeasible right to the custody of the minor, that the respondents 1 and 2 did have affection for the minor but on this ground alone her demand could not be turned down.

13. On the other side the learnedcounsel for the opposite party mainlyrelied on 3 cases.

(1) Mrs. Annie Besant v. G. Narayaniah AIR 1914 PC 41. In this case the respondent brought a suit for the custody of his two minor sons. The respondent was not well off. The appellant Mrs. Annie Besant was president of Theosophical Society, The respondent being a member of the said Society was well acquainted with her. In the year 1910 one son of the respondent was aged about 15 years and the other son was aged about 12 years. As the financial condition of the respondent was not-well, the appellant offered to take charge of his sons and defray the expenses of their maintenance and education in England and at the University of Oxford. The respondent agreed to her offer. The appellant then sent his two sons to England for education. In 1912 the respondent wanted to have his sons back. The appellant refused to comply with his demand. The minors did not want to return to India. The Privy Council held that the Courts in India had no jurisdiction to try the case, that the order of the High Court directing the appellant to take the sons back to India could not be legally carried out without the consent of the minors. The Privy Council observed:

'There is no difference in this respect between English and Hindu Law. aS in this country, so among the Hindus, the father is the natural guardian of his children during their minorities, but this guardianship is in the nature of a sacred trust, and he cannot therefore during his life time substitute another person to be guardian in his place. He may, it is true, in the exercise of his discretion as guardian, entrust the custody and education of his children to another, but the authority he thus confers is essentially a revocable authority, and if the welfare of his children requires it. he can, notwithstanding any contract to the contrary, take such custody and education once more into his own hands. If, however, the authority has been acted upon in such a way as in the opinion of the court exercising the jurisdiction of the Crown over infants, to create associations or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint, such Court will interfere to prevent its revocation.'

The Privy Council further observed:--

'It was not, and indeed could not be disputed that the plaintiff remained the guardian of his children notwithstanding that he had affected to substitute the defendant as guardian in his place. The real question was whether he was still entitled to exercise the functions of guardian and resume the custody of his sons and alter the scheme which had been formulated for their education. Again it was not and could not be disputed that the letter of the 6th March, 1910 was in the nature of a revocable authority. The question was whether in the events which had happened the plaintiff was at liberty to revoke it. Both questions fell to be determined having regard to the interests and welfare of the infants bearing in mind, of course, their parentage and religion, and could only be decided by a Court exercising the jurisdiction of the Crown over infants and in their presence. The District Court in which the suit was instituted had no jurisdiction over the infants.....'

(2) G. P. ponniah, Asari v. Suppiah Asari, AIR 1935 Mad 363. In this case the petitioners were father and brother of a minor girl aged 9 years and the respondents were her maternal uncles. The girl's mother died when she was about one year old. Taking into consideration the entire facts it was held that the father's right to the custody of the minor, a prima facie right, could be negatived by the circumstances showing either past indifference and neglect or tacit consent in the infant being brought up by other relatives. It was further held that if the application for the custody of minor was not bona fide, it cannot be allowed. Similar view was taken in the case of Muthuswami Chettiar v. K. M. Chinna Muthuswami Moopannar : AIR1935Mad195 .

(3) Samuel Stephen Richard v. Stella Richard : AIR1955Mad451 , In this case parties were husband and wife. They had an infant daughter. Relations between the parties became strained. The wife (respondent) left her husband and took away her minor daughter; Then she filed a petition under Section 488 Cr. p. C. claiming maintenance for herself as well as for her minor daughter. The question of custody of the minor arose. It was held that the welfare of the minor was the paramount consideration. It was held that in the circumstances of the case it twas not for the welfare of the minor to transfer her custody to her father. The relevant observation reads as follows (at p. 455):--'Therefore, all these considerations are against transferring the custody of the minor to the father and I have already pointed out how the interests of the minor are paramount and the fact that the father is the natural guardian would not 'ipso facto' entitle him to custody. In fact there is often much confusion in regard to Clause (b) of Section 19 of the Act ..... But all that Clause (b) means is that the court cannot appoint a father as guardian under the Guardians and Wards Act. He is the natural lawful guardian of his own minor children. But if the father makes an application for guardianship for the purpose of obtaining the custody of the child from another, the application will be treated as one under Section 25 of the Act. The remedy for the father to obtain the custody of the children is an application under Section 25 of the Act and when the father makes an application under Section 25 the welfare of the minor is the paramount consideration for deciding the- custody.....''

In this case the Court questioned the girl and she stated that she wanted to live with her mother only and not with her father. It was also held that the application under Section 25 bv the father was a mala fide one and as a counterblast to the petition under Sec, 488 Cr. P. C. and as such deserved no encouragement.

14. The learned counsel for the opposite party urged that all the High Courts had taken similar view and referred to the following cases :--

(1) Lalta prasad v. Ganga Sahai .

(2) V. V. Narasaiah v. Chintalapati Peddi Raju. : AIR1971AP134 .

(3) Sunil Kumar Chowdhary v. Smt. Satirani Chowdhary. : AIR1969Cal573 .

(4) Rattan Amol Singh v. Smt. Kamaljit Kaur. .

(5) Bai Tara v. Mohan Lal Lallubhai AIR 1922 Bom 405.

15. The learned counsel for the opposite party lastly referred to the case of Mt. Haidri Begum v. Jawwad AH Shah : AIR1934All722 . In this case Mt. Haidri Begum filed an application under Clause 12 letters patent against her husband Jawwad AH Shah for her appointment as guardian of her minor son aged about 5 years and for his custody. A question was raised that she should have applied under the Guardians and Wards Act. The Court observed--

'We do not wish to lay down as a general rule that this Court in all cases take action under Clause 12, although the applicant has an alternative remedy under the Guardians and Wards Act by an application to the District Judge, There may be cases in which complicated questions of fact have to be ascertained and such cases might be more suitably dealt with in the Court of the District Judge where witnesses could be examined and cross-examined. In the present case, however, it does not ap-pear that there was any important matters of fact which have to be ascertained and we therefore see no reason why we should not decide the application upon the materials before us.' The counsel for the opposite party referred to the above observation and urged that the opposite party should be allowed to lead evidence. On a consideration of the entire facts the Court appointed Mt. Haidri Begum guardian of the person of the Minor until he attained the age of 7 years, It will be noticed that this order was passed despite the fact that the respondent was in a good financial position and applicant Haidri Be-gum had small financial resources.

16. So far as the principles applicable to a case like the present one, there is practically no difference in the views expressed in the cases cited by the petitioners' cocnsel and the cases cited by the opposite parties' counsel. The main consideraton is the welfare of the minors. It is, therefore, necessary to examine the entire facts which appear from the affidavits of the parties,

(1) Kashi prasad is aged 28 years, There is no allegation on behalf of the opposite party that he suffers from any disease. Therefore, Kashi Prasad appears to enjoy good health. Smt Shyam Kali, opposite party has given her age as 50 years in her affidavits. Copy of application under Section 125 Cr. P. C. given by the opposite party in the names of the minors (annexure 1 to the counter affidavit) states that the opposite party is old, that she is unable to walk and put in labour. This indicates that she is older than 50 years and she is incapable of walking. In these circumstances it will not be incorrect to say that she is almost a wreck,

(2) Kashi prasad is in the services of the railway as a trolley man. He gets Rs. 450/- p. m, as pay (vide annexure 1 to the counter-affidavit), According to Kashi Prasad, Smt Shyam Kali earns Rs. 60/- p. m. only. According to annexure 2 of the counter-affidavit (statement of Sunil/Sushil in proceedings under Section 125 Cr, P. C.) the opposite party earns about Rs. 70/- p. m. by cleaning utensils. This amount is obviously just sufficient for the maintenance of the opposite party. The opposite party has, therefore, no means to maintain the minors. Kashi Prasad has certainly means to maintain the minors.

(3) It is undisputed that since the minors are living with the opposite party with the consent of Kashi prasad, the latter has been paying money to the opposite party for their maintenance. Kashi Prasad has deposed that he has in all paid about Rs. 12,000/- to her. This fact has not been specifically denied by the opposite party. It means not only that Kashi Prasad has been, maintaining the minors, but it also means that the minors are living with the opposite party with his consent,

(4) In para 4 of the counter-affidavit, the opposite party has deposed that Kashi Prasad always ill-treated his wife Smt. Tara Devi, mother of the minors and therefore she mostly used to live with her at Allahabad with her children, Kashi Prasad has denied this allegation. The allegation of the opposite party does not inspire confidence. It will firstly be seen that undisputedly Smt Tara Devi died in the year 1974 at Aligarh where Kashi prasad was posted. Secondly if Smt. Tara Devi was living away from Kashi Prasad because of his ill-treatment, it is obvious that Kashi Prasad would not have paid any money for her maintenance and the maintenance of her children. There is no indication in the counter-affidavit of the opposite party as to how she was able to maintain herself and her 3 children, one of whom died at the age of 4 years at Allahabad. Moreover even after the death of Smt. Tara Devi, Kashi Prasad would not have quietly paid money for the maintenance of the minors, These broad facts clearly go to show that the opposite party has wrongly alleged that Kashi Prasad used to ill-treat his wife and on that account she used to live with the opposite party along with her children,

(5) In para 4 of the counter-affidavit Smt Shyam Kali has deposed that the two minors were studying at Allahabad, that Sushil stayed with Kashi Prasad for 2 years and studied in classes 3 and 4, that Sunita went to her father for a few months along with her mother, that she-wanted to send the minors to Kashi Prasad but the latter was never prepared to keep them and that whenever the minors were sent to Kashi Prasad, they were ill-treated and badly beaten. Kashi Prasad has denied these allegations. It will be noticed that the allegation that whenever the children were sent to their father they were ill-treated and badly beaten is wholly vague. The opposite party has not stated in which month and year the children were sent to Kashi Prasad and he beat badly. It will next be noticed that if really Kashi Prasad did not like his minor children and allowed them to continue with the opposite party he would not have cared to maintain them. He would not have paid a single penny for their maintenance quietly. In this situation there should have been proceedings for the recovery of maintenance soon after the death of Smt. Tara Devi. In para 4 of the affidavit given in support of the application for evidence, the opposite party exaggerated her version. She stated that Kashi Prasad remarried long back that Sushil was sent by her to his father who lived for sometime only, that the second wife treated the boy badly, that Kashi prasad mostly used to remain on duty out of Kanpur and that whenever he came to Kanpur, he too under the influence of his second wife and drink used to beat him mercilessly. Apart from the fact that the allegations contained in this paragraph are vague, it is evident that the allegations are highly exaggerated. It is wrong that Kashi prasad remarried long back. According to para 5 of the counter-affidavit, he had remarried about 2 years back. According to Kashi Prasad ho remarried in October, 1980 i. e. about 9 or 10 months before the moving of the habeas corpus petition. In the counter affidavit the opposite party has nowhere alleged that Kashi Prasad used to take liquor. Moreover, it is undisputed that Kashi Prasad has been defraying all the expenses of the minors who are living with the opposite party. Taking all these facts together, it is evident that the opposite party has wrongly alleged that Kashi Prasad ill-treated or badly assaulted his minor children, the petitioners.

(6) In para 7 of the affidavit given by the opposite party in support of the application to lead evidence, it was stated that the second wife of Kashi Prasad is quite young and that she will bear her own children. The opposite party's counsel urged that in these circumstances minor petitioners will not get sufficient care and affection from their step mother as well as father. This contention is not necessarily correct. So far the minors have not lived with their step mother. Km. Sunita is aged about 14 years. The second wife of Kashi Prasad is quite young. Therefore, Sunita can easily give company to her step mother and vice versa. The step mother so far has no issue of her own. Instances have been noticed where stepmothers, particularly stepmothers of young age, have showered sufficient affection and taken enough care of the minor children of her husband from the first wife. The apprehension/ contention of the counsel for the opposite party seems without any basis and misconceived.

(7) Smt. Shyam Kali is issueless. No male member lives with her. Sunita is aged about 14 years. She is going to be major shortly, Smt. Shyam Kali because of her old age and infirmity cannot keep a close supervision upon her. She cannot also properly take care of Sushil. On the other side both the minor children can very well be looked after by Kashi Prasad and his second wife,

(8) The educational facilities at Kanpur are as good as they are at Allahabad

(9) The opposite party no doubt filed an application under Section 125 Cr, P. C. for the maintenance of the minors in Dec., 1980. The present habeas corpus petition, was filed in Aug., 1981. It can of course be said that this petition has been filed as a counterblast. Kashi Prasad alleged that he asked the opposite party to send the children with him. The opposite party promised to send them in the month of July after the School were closed- He went to the place of the opposite party in June, 1981, that he paid Rs. 200/- to the opposite party and reminded her to come to Kanpur along with the minors so that they be admitted in the schools in time. At that time the opposite party behaved badly with him (vide paras 8, 9, 10 and 11 of the affidavit given in support of the application). In her counter-affidavit, the opposite party has simply made a vague denial of these allegations. As an application under Section 125 had been moved claiming Rs. 250/-, p. m. as maintenance allowance for the minor, it is but natural to expect that Kashi Prasad who gets Rs. 450/- p. m. would have thought of bringing the children. In view of these circumstances there appears force in the allegations of Kashi prasad.

According to the opposite party, the two minors are aged 14 and 12 years, Their mother died in 1974 i. e. 7 years ago. At that time Sunita was aged about 7 and Sushil about 5. The positive case of Kashi Prasad is that after the death of his wife Smt, Tara Devi, he kept Sunita with the opposite party after having kept her for sometime with his brother, that he kept Sushil for sometime with him and thereafter he kept him also with the opposite party. He married another woman about 6 years after the death of his first wife. In these circumstances it is obvious that he thought it proper to keep the minors with the opposite party who was issueless and alone. During the arguments the learned counsel for the opposite party showed two papers, one of them indicated that Sunita passed class 1-A in May, 1973 from Nagar Palika Primary Girls School, Allahabad, The other document showed that m October, 1978 Sushil plucked in the First quarterly examination of class IV of Shishu Shiksha Sadan, Kanpur, The second document clearly shows that Sushil was given to the custody of the opposite party towards the end of 1978 or beginning of 1979 i. e about 4 or 5 years after the death of Smt, Tara, The first document no doubt shows that Sunita was living with the opposite party from the life time of Smt, Tara. It is however, undisputed that Kashi Prasad has always defrayed the expenses of these minors.

Taking into consideration the facts stated in this paragraph as well as those stated in the preceding paragraph, simply because that the habeas corpus petition was filed after the application under Section 125 Cr. P. C. it cannot be said that this is a mala fide application.

(10) Kashi Prasad is undoubtedly the natural guadian of the minors. He has throughout been maintaining them- The opposite party ordinarily has no right to keep the children with her. She has no means to maintain them. She has become too old to look after them. In these circumstances if Kashi Prasad desires to have the minors, there is no reason not to accept his desire, It is apparent that despite the wish of Kashi prasad, the opposite party is not sending them back, Therefore, it can easily be said that the opposite party is illegally detaining them and as such this petition for habeas cor-pus is maintainable.

17. It will be noticed that the opposite party has stated in her counter-affidavit that she has no objection in handing over the minors to Kashi Prasad provided the minors are willing to go to him. The learned counsel for Kashi Prasad urged that ,because the manors were living with the opposite party, they would state that they would prefer to live with the opposite party. But on this account the right of Kashi Prasad in the total circumstances of the case to have the custody of the minors cannot be denied. He referred to the following observation in the case of S. Rama Iyer v. K. V. Nataraja Iyer. AIR 1948 Mad 294:--

'Undoubtedly the minor after his short stay with his grand-father, has expressed a preference to remain there and his unwillingness to go back to his father. But that we cannot say is an intelligent preference because the boy is under 14 years and as it has been repeatedly held, a child of that tender age cannot be said to be able to form an intelligent preference particularly in a matter relating to his custody as against the wishes of his natural parents.'

In my opinion there is considerable force in the contention of the petitioners counsel.

18. With regard to the application for ascertaining the wishes of the minors and for allowing the opposite party to lead evidence, it has to be pointed out that the arguments in the case commenced on 23-9-1981. The petitioners' counsel finished his arguments on that date and a part of the arguments of the counsel for the opposite party was also heard. The arguments of the opposite party's counsel were continued on 24-9-1981. On that date the opposite party's counsel moved the application, Thereafter the arguments of the opposite party's counsel were heard. The arguments of the opposite party's counsel continued on 28-9-1981. Then reply of the petitioners' counsel was heard, After having heard the parties' counsel at length, it was felt that the opposite party has come up with wrong allegations and that as the minors were living with her for quite sometime, the minors would prefer to live with the opposite party. But their preference in the entire circumstances of the case would not be sufficient to refuse relief to their father.

19. Taking into consideration the entire facts and circumstances discussed above, I am of the opinion that it is in the interestg/welfare of the minors that they should be handed over to their father Kashi Prasad and they should not any longer be left with the opposite party who is an old, illiterate, infirm and not well to do woman. In view of this conclusion application for additional evidence and for examining the petitioners cannot be allowed. On the other hand the habeas corpus petition deserves to be allowed.

20. The habeas corpus petition is, therefore, allowed and Smt. Shyam Kali, oppopsite party is directed to hand over the minors Km. Sunita and Sushil forthwith to their father Kashi prasad.


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