JUDGMENT G. Malaviya, J.
1. This habeas corpus petition was moved by Km. Saheli in the High Court through her father Zahhoor Ullah Khan on the ground that Saheli was being detained by her maternal uncles Safir Uddin and Sabir Uddin. The notice was issued to them on 14.2.1990 to produce Km. Saheli. Thereafter, after considering the entire matter Hon'ble R.S. Dhavan, J. was pleased to pass the following order in this case on 28.2.1990 :
This habeas corpus petition moved at the instance of a father on behalf of his daughter who is ten years old, and in the custody of the opposite parties Nos. 1 and 2, Messrs Safir Uddin and Sabir Uddin, uncles of the child, aforesaid, (by relation mamas). The father seeks custody of the child kept by the uncles without any legal sanction. In so far as the latter aspect is concerned, it is accepted by even the opposite parties that they are acting as guardians without any legal sanction. Thus, the jurisdiction of this Court by writ of habeas corpus has been invoked rightly.
Unfortunately, the issue which has been brought to this Court by the father is not as simple as he thinks it is. The situation is more knotty than he could have reckoned it. The father Zahoor Ullah Khan was separated from his wife and between the two of them was born, this child Saheli. The relations between the father-Zahoor Ullah and his wife Anjum Bano, It appears turned sour and they did not live together. Anjum Bano left her husband's house when she was carrying Saheli. Saheli was born at her grand parent's home. Her mother received an order of maintenance from the Metropolitan Magistrate, Kanpur. She died. Her daughter Saheli, thus remained with her uncles. It is also accepted that Saheli otherwise daughter of Zahborullah Khan is a stranger to her father. Thus, any logic of law will not solve the problem as passing an order giving custody of Saheli to her father today will spark off far reaching repercussions psychologically on the child and this risk the Court is not prepared to take as the Court has to monitor the situation on how the child takes to her father.
The Court has examined and had discussions separately, first with the father of the child Saheli, the two uncles and lastly Saheli along with her companion Sahana Parveen.
The uucles state that the child is much attached to them and also to her grand mother. The father submitted that he yearns for the child. As far as Saheli is concerned she was prepared to participate in the experiment of reapproachment, but as of date, and inevitably, was not prepared to leave her fold and the child herself upon being explained the perspective gave the impression as if she would like to explore the exercise to be familiar with her father, but with caution. Today the Court cannot proceed beyond this as any step for reapproachment will have to be very slow so that it does not proceed in a manner which may negate any exercise which the father desires to succeed.
When the Court suggested to Saheli whether she would have any objection, if her father meets her, She gave the impression to the Court that she has kept her options open but would like to be assured that at present she remains where she is. She had no objection if she was taken out on a day-excursion accompanied by her cousin who if of the same age, in the same school and in the same class. In these circumstances, the Court has suggested to apposite parties, uncles of Saheli, that the father has visiting rights to meet his child and it would not be proper if they object. They were persuaded not to object to the father's visits. To the father the Court explained that he may meet his child but he should go only to that extent as long as the visit lasts. He has been permitted to take out the child to a place where the children may like to go but only between 11 o'clock and an hour before sunset. Should the children complain that they would like to get home before, he will acquiesce to their wishes, and return them home as quickly as they want to get home. The first of such visits will begin on coming Sunday which falls on March 4, 1990.
On this aspect, let the father and the two opposite parties report to the Court if the exercise bore any fruit. Saheli will be before the Court accompanied by the uncles on Saturday or Sunday, i.e. March 17 or 18.
The Court will have a special sitting in chambers on that day as the Court considers it appropriate not to disturb the study schedule of the child Saheli during week days. If there is any school test on Saturday, then Counselor the parties may intimate the Court and in that case the matter will be before the Court on Sunday, March, 18, 1990.
List on 17 or 18 March, 1990 as indicated by the Court subject to the date to be indicated by Counsel on March 15, 1990. List for orders on 15.3.1990 for fixing date, as above."
2. Thereafter a counter affidavit dated 24.2.1990 was served on learned Counsel for the petitioner on 1.3.1990 by which it was stated that as father of Zahoor Ullah iltreated mother of Km. Saheli her mother had gone back to her father's place in the state of pregnancy where she delivered Km. Saheli on 27.11.1990. It was further stated that as maintenance Under Section 125 Cr.P.C was granted on an application of mother of Km. Saheli, which order was also challenged by the petitioner in the High Court, and as the amount of maintenance had never been paid, the present habeas corpus writ petition was filed with a view to avoid liability to pay the maintenance particularly as mother of Km, Saheli had died on 12.11.1989. Thereafter the matter was once again heared at length by Hon'ble R.S. Dhavan, J. who on 17.3.1990, passed the following order :-
"Present: Mr. D.S. Srivastava for the petitioner.
Mr. S. Chatterjee for opposite parties.
Mr. Zahoor Ullah father of Km. Saheli, Mr. Safir Uddin opposity party No. 1.
Kumari Saheli daughter of Mr. Zahoor Ullah Kumari Sahana Parveen, her companion and first cousin.
This matter was fixed for today in pursuance of the orders of this Court passed on 28 February, 1990 and upon a joint mention made by learned Counsel for the parties on 16 March, 1990 that the parties and the child Saheli, will appear before the Court today.
As a consequence of the lawyers' strike today (Saturday, 17 March, 1990) and picketting of the Judges' gate, this matter had to be taken up at the residence, in the interest of the child, Saheli, as the Court considers it inappropriate to send her back to Kanpur merely because the Court could not convence. As a measure of formality the Court felt that proceedings of this Court could not be affected by a lawyers' strike.
Thus, at the request of the learned Counsel for the parties the Court convened at the residence.
The Court had a meeting and discussions with Saheli and her companion Sahana Parveen, the two children; the two are of the same age. These two were the first to report to the Court on their meeting when they were out on a day's excursion on 4 March, 1990. The children reported to the Court that the father called at the residence of Saheli's grand mother at 11 O'clock in the morning and they went out for a picnic at Allen Foresh, Kanpur. They reported to the Court that their grand mother had packed picnic snacks for them. The children have not reported any dissatisfaction over this meeting during the outing. It appears that the experiment of the Court in bringing about a rapprochement between Saheli and her father, who were hither to strangers, at least is not failing.
The Court enquired from Saheli's father, Sri Zahoor Ullah Khan, whether he feels that he is receiving cooperation from the opposite parties. He reported to the Court that he has received cooperation of the opposite parties in meeting his daughters.
This is only a beginning and so far the Court is satisfied that steps to bring Zahhoor Ullah Khan and his daughter Saheli together are yielding a positive result. The Court will proceed with much caution as Saheli is, after all, only 10 years old. To her, familiarity with her father, who she had not met, will come gradually. The visiting rights of Zahhoor Ullah Khan to meet his daughter will continue At present let him meet his daughter on any holiday or the week end at the residence of Saheli's grand mother. It he desires to take Saheli out on a day's excursion in Kanpur, only, he may do so with the permission of her grand mother Sugara Begum. Opposite party No. 1 present before the Court has assured the Court that there will be no difficulty to permit visiting rights to Zahhoor Ullah Khan as suggested by the Court.
In order that parties may be able to report to the Court again on how the rapprochement between the father and his little daughter, is succeeding, at first the Court would like to know of the study schedule of Saheli should she have to come to Allahabad without disturbing her school routine. The Court is conscious that the annual examinations are about to begin. Learned Counsel appearing on behalf of of the uncles of Saheli (opposite parties 1 and 2) has assured the Court that he will file the examination schedule of Saheli's class (Ephiphany Girls' School) so that the next date will be fixed without putting the child into inconvenience.
At present the Court will leave these matters at this stage. Let the examination schedule of Saheli's class be tiled before the Court within 10 day's List immediately after 10 days for Mr. S. Chatterjee, Advocate, to file a report on the examination time table of Saheli's class".
3. This petition has now been argued before me by learned Counsel for the parties Having heard them and having perused the entire matter, I do not think that interest of Km, Saheli would be well protected and served if she is asked to live with her father. Consequently this habeas corpus petition is dismissed. However the visiting rights of Zahhoor Ullah Khan to meet his daughter as indicated in the orders passed by Hon'ble R.S. Dhavan, J. quoted above, will continue in the manner prescribed in those orders.
4. With the observations made above, this habeas corpus petition is dismissed.