Pawandeep Kaur v. State of Punjab & Ors.

Mr. Naresh Kaushik, Advocate, for respondent No.3. Gurdev Singh, J (oral) The petitioner-Pawandeep Kaur has filed this habeas corpus petition under Article 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for the issuance of direction to the respondents to allow her daughter Gursharanpal Kaur move with dignity and personal liberty and not to confine her in the house and for allowing her to study at better educational institution of her choice and for stopping respondent No.3-Gurmit Singh from beating that child and for directing respondents No. 1 and 2 not to help respondent No.3 in any illegal way. It has been pleaded in the petition that before the death of her husband- Satwinderpal Singh, which took place on 23.12.2003, she was residing with her children in the house of respondent No.3, who is her father-in-law. After the death of her husband she and her children were not allowed to stay at Mohali and as such she alongwith her children shifted to Crl. W. P. No. 958 of 2009 -2- village Rasool Pur, District Chamkaur Sahib, District Rupnagar, which is the village of her in-laws. She could not pull at that place for long time and thereafter started living alongwith younger son Satinder Pal Singh in her parental house. Her elder daughter Gursharanpal Kaur and elder son Tejinder Pal Singh were not allowed to move out of the house by her in- laws. She moved an application for the custody of those minor children before the Guardian Judge. A compromise was arrived at between her and her father-in-law out of the Court and as such she did not adduce any evidence and the same had been dismissed on 29.3.2007 vide Annexure P-1. Intially, respondent No.3 was allowing her and her children to meet each other and later on he started tutoring the children and also restrained them from meeting her. The behaviour of her in-laws towards the daughter, being female changed and they started treating her like a step mother and started preferring the male child. They have not been allowing her daughter to move out the house and started beating her. In the first week of July she was conveyed by the daughter that she had been beaten by her grand parents and that she wants to meet her and if possible to live with her and pursue her studies. Thereafter she along with her relatives came to village but her in-laws did not allow her to enter the house nor the children were allowed to see her. She reported the matter to the police of Police Station Chamkaur Sahib, but no action was taken. When she tried to meet the children in the school situated in village Dulchi Majra, she was not allowed to do so. Headmaster of the School called respondent No.3 to that place, who threatened her and her relatives to run away from the spot and otherwise he would make a report against them to the police. Thereafter she moved an Crl. W. P. No. 958 of 2009 -3- application before the Sub Divisonal Magistrate, Chamkaur Sahib to produce her daughter and son who had been confined by respondent No.3 against their wishes. The Sub Divisional Magistrate called respondent No.3, who produced copy of the order dated 29.3.2007 before him. Taking into consideration that order, the application filed by her, was ordered to be filed vide order dated 11.8.2009 (Annexure P-2). Taking advantage of Annexures P-1 and P-2, respondent No.3 and his wife started harassing the children and confined them in their house. Respondent No.3 has never been appointed as guardian of the children. Her daughter Gursharanpal Kaur intends to study for higher education, but she is being compelled to study in village, as a result of which she is loosing her interest in the studies. Her future is being ruined. She needs to be allowed to move with dignity and personal liberty and should have the right to select the better educational institution for herself. Respondent No.3 cannot confine her against her wishes and cannot stop her to talk, meet and visit her mother. She has every right to look after her own children and look after their best future. Her daughter is 16 years old and she can share her feelings only with her, being her mother. Respondent No.3 filed his reply to the petition in which he admitted that his son Satwinderpal Singh was married to the petitioner and that the daughter Gursharanpal Kaur and son Tejinder Pal Singh, who were born out of that wed-lock, are residing with him. He denied the other contentions of the petitioner and pleaded that both these childrn were given to him by his son before his death itself in order to bring them up. From the very beginning they are living with him and their names are entered in his Crl. W. P. No. 958 of 2009 -4- ration card. He is taking care of them and he is also meeting the financial expenses for their education etc. Gursharanpal Kaur is a student of 10+1 and studying at Guru Gobind Singh Khalsa Girl College, at Village Dulchi Majra. He is a graduate, retired government servant and is getting a pension of Rs.12,500/- per month and is also having agricultural land to meet the expenses of the children. The petitioner approached the officer in- charge of the Police Station and Sub Divisional Magistrate. After the examination of allegations and factual position, the complaints made by the petitioner were found to be false and frivolous. In fact the petitioner was the second wife of the son and she used to quarrel with him during his life time. When the petitioner left the matrimonial home, she took with her the other two minor children and all her belongings, including ornaments and valuables. He is having a lawful custody of the children and is looking after them properly. I have heard learned counsel for the parties. It was submitted by learned counsel for the petitioner that Gursharanpal Kaur has every right to get good education and to lead an independent life. Respondent No.3 is not providing good education to her and she was being deprived of the basic necessties of life. She is not being sent to any school or college to pursue her studies and is also not allowed to meet the petitioner, who is her natural guardian. Therefore a direction should be issued in the form of writ to respondent No.3 to allow the petitioner to meet that Gursharanpal Kaur as and when she likes and for allowing her to get her admitted in good college for getting better education. On the other hand, it has been submitted by learned counsel for Crl. W. P. No. 958 of 2009 -5- respondent No.3 that the custody of the girl was given to him by the Guardian Judge and there is no such direction of the Guardian Judge permitting the petitioner to meet that girl as and when she wants. In fact the petitioner is bent upon to spoil the carrier of that child, who is getting education in a good college and is pursuing her studies properly. Having failed in the petition for obtaining the custody of that girl, this petition in the form of writ petition has been filed mala fide with an ulterior design. It is the case of the petitioner herself that she had moved an application for getting custody of Gursharanpal Kaur and Tejinder Pal Singh and that the same was dismissed. She has tried to take up the plea that she got dismissed that application in view of compromise entered into between her and respondent No.3, out side the Court. No such compromise has been placed on the record. The order passed by the Guardian Judge Annexure P-1, itself shows that the petition filed by the petitioner for getting the custody of the children was contested by respondent No.3. However, the petitioner failed to prove her case as a result of which that petition was decided on merits against her. After the decision of that petition it cannot be said that the custody of Gursharanpal Kaur with respondent No.3 is illegal. In case the petitioner wants that she should be allowed to meet that girl, her remedy lies before the Guardian Judge. The above said order was passed on 29.3.2007 and till today neither any appeal has been filed by the petitioner nor she has moved any application before the Guardian Judge, itself for re-calling that order. When alternative and efficacious remedy is available to her, she can not move the present petition under Section 482 Cr.P.C which deals with the inherent jurisdiction of this Crl. W. P. No. 958 of 2009 -6- Court and which is to be exercised only in three circumstances mentioned therein:- (i)to prevent abuse of the process of the Court; (ii)to secure the ends of justice; (iii)to enforce any order passed under Code itself. The question is to be decided is whether any such direction can be issued by this Court while exercising the writ jurisdiction. It is well settled that when there are disputed questions of facts, the writ jurisdiction cannot be invoked. In the present petition the disputed questions of fact are involved which can only be decided on the basis of the evidence. No such direction, as prayed for by the petitioner, can be issued while exercising writ jurisdiction. There is no merit in this petition and the same is thereby dismissed. February 24, 2010 tripti (Gurdev Singh) Judge