Nirmaljit Kaur Vs.
State of Punjab & Ors  INSC 675 (6 December 2005)
Ruma Pal & Dr.
(CRIMINAL) NO. 1/2005 Dr. AR. Lakshmanan, J.
The case of the
petitioner is as follows:- The petitioner - Nirmaljit Kaur got married to
Surinder Singh Batra as per Sikh rites and out of the wedlock a female baby
Simran was born on 16.02.1992.
Respondent No.2 -
Gurubachan Singh Batra is the brother of Surinder Singh Batra.
Respondent No.4 -
Harbans Kaur is his wife. Respondent No.3 - Arminderjit Singh Batra is the
nephew of Surinder Singh Batra whereas Respondent No.5 - Ranjita Kaur is the
wife of Respondent No.3 - Arminderjit Singh Batra.
According to the
petitioner, Surinder Singh Batra died intestate leaving behind the petitioner
and baby Simran as his only legal heirs. On 23.02.1997, the respondent Nos. 2-5
and 3 other sisters of Surinder Singh Batra and sisters of respondent No.3
forcibly took away baby Simran from the petitioner with ill design. The
petitioner was turned out of her matrimonial house by them and since then she
has been living with her relatives.
It is alleged that
the respondents in order to divest the petitioner of her legitimate right to
succeed to the estate of her late husband fabricated a Will dated 19.10.1996
purported to have been executed by her husband. The two witnesses to the Will
are Joginder Singh and one J.S. Batra (since died). The Will was got registered
on 31.03.1997 after the death of the petitioner's husband (died on 23.02.1997)
without notice to the petitioner. The alleged Will named Arminderjit Singh as
the guardian of the child Simran on the ground that the testator's wife failed
to take care of her.
According to the
petitioner, the Will does not bear the signatures of her husband and the Will
falls to the ground for want of compliance with the statutory requirement of
Section 63 of the Indian Succession Act, 1925 as the Will was not attested by
the two witnesses each of whom had seen the testator signing the Will in their
presence. Each of the witnesses has not signed the Will in presence of the
testator, though it was signed by two witnesses. This apart, Surinder Singh
Batra had no power or authority or right to appoint any person as guardian of
her daughter as per the provisions of Section 9 of the Hindu Minority and
Guardianship Act. Thus, the appointment of respondent No.3 as sole custodian
and guardian of minor by Surinder Singh Batra during the lifetime of the
petitioner is a nullity in the eyes of law, inoperative and ineffective.
The third respondent
- Arminderjit Singh Batra, on the basis of the said Will, filed an application
under Section 192 of the Indian Succession Act before the District Judge,
Amritsar. The petitioner filed an application under Section 25 of the Guardian
and Wards Act for the custody of the minor child whereas the respondent No.3
claimed guardianship by virtue of the Will dated 19.10.1996. The District
Judge, Amritsar, by judgment dated 23.12.1997, dismissed the application of
respondent No.3 filed under Section 192 of the Act holding respondent No.3 was
not competent to claim guardianship of the minor Simran Batra. However, this
order was set aside by the High Court remanding it back for deciding it as per
provisions of Section 193/194 of the Indian Succession Act and parties were
directed to appear before the District Court.
The District Court,
while deciding the application under Section 25 of the Guardians and Wards Act
filed by the petitioner, allowed interim custody to the petitioner and directed
the child to be produced on 27.07.1998. However, the child was not produced.
The High Court directed the Court concerned to dispose of the said petition
finally as agreed but the same has not been decided and the matter is delayed
by the respondents resorting to dilatory tactics.
It is further
submitted that in order to frustrate the judicial process and to succeed in
their design, respondent No.3 in connivance with the other respondents took
away baby Simran to U.S.A. in February, 2000 in clandestine manner without
disclosing her whereabouts, date of departure, place of living etc. When the
petitioner appeared in the Court of Guardian Judge, Amritsar for the custody of
the child, respondent No.2 threatened the petitioner with dire consequences if
she did not stop pursuing the case and to forget about the child and the
property. The petitioner, therefore, filed a transfer petition before this
Court for transfer of Guardian Case No.80/97 from Amritsar to Delhi, which was
allowed by this Court and the case has been transferred to Faridabad. However,
till date matter has not been assigned to any competent Court having
jurisdiction to decide. The petitioner also sought transfer of the suit for
partition filed by her and an application under Section 192 of the Succession
Act filed by respondent No.3. This Court gave liberty to the petitioner to
approach the High Court.
As already stated, it
is the petitioner's case that the child was taken to U.S.A. by respondent No.3
without the permission of the Court and that the petitioner has not been
allowed to meet her child despite various requests being made by the
The petitioner has
bona fide and genuine apprehension that the child may have been made to
disappear by the respondents or liquidated by the respondents. It is pertinent
to notice that the respondent No.2 acting as Power of Attorney holder of
respondent No.3 filed his affidavit on 04.04.2003 by way of evidence before
this Court. After this affidavit, the petitioner tried to meet her daughter but
respondents did not allow but concealed the child. It is thus clear that the
baby Simran was sent to U.S.A. without her knowledge and order of the Court in
a clandestine manner to conceal her whereabouts.
It is seen from the
statements made by respondent Nos. 2 and 3 that the child was abandoned 7/8
days after birth and baby has been living with them from almost inception of
birth. It is apparent that the respondent succeeded in their nefarious design
and caused the daughter of the petitioner disappear.
The whereabouts of
the baby Simran is not known from February, 2000. The petitioner being the
natural mother and guardian of the baby is legally entitled to the production
and custody of the child and to meet her and respondents are bound to do the
needful. According to the petitioner, the identity of the baby presently with
respondents as claimed to be Simran can be got established through DNA test
only and that there is no other means or mode in establishing the identity and
to handover the custody to the petitioner after the test.
Thus, the petitioner
filed the above writ petition under Article 32 of the Constitution of India for
production of baby Simran, daughter of the petitioner in this Court with the
a) issue appropriate
writ, order or directions in the nature of habeas corpus, directing the
respondents to produce baby Simran, daughter of the petitioner in body in this
Hon'ble Court, enabling the petitioner to meet her being the natural mother.
b) issue appropriate
writ, order or direction to respondents to disclose the whereabouts of baby
Simran, daughter of the petitioner and she be produced in the Hon'ble Court and
DNA test be conducted to affirm and ascertain the correct identity of baby
Simran being the daughter of the petitioner and custody of the child be given
to the petitioner.
c) pass such order or
further order(s) and grant any other appropriate relief(s) as this Hon'ble
Court may deem fit and proper in the facts and circumstances of the case.
The writ petition was
opposed by respondent Nos. 2-5. They filed a common counter affidavit. It is
stated in the counter affidavit that minor Simran had gone to America for
sometime during February, 2000 to see respondent Nos. 3 and 5 who are residing
in America since sometime for treatment of their son and that minor Simran is
hale and healthy and she was studying Middle Study High School, Amritsar which
is clear from the order passed by the High Court in Civil Revision No. 3134/98
and that she is presently studying in Class VI in Amritsar Public School. They
produced copy of the application for registration for admission and copy of the
certificate dated 10.09.2003 issued by the principal and photographs of Simran
Batra as Annexure-R5.
allegation that baby Simran was forcibly taken away from the petitioner on
23.02.1997 and further submitted that minor Simran was living with respondent
No.3 almost since her birth which was so because of the indifferent attitude of
the petitioner towards minor Simran right from the beginning. It is submitted
though the minor was produced in the Court on 21.05.1998, 27.08.1998 and
25.09.1998 under the orders of the Court, the minor was not willing to join the
petitioner and the child was not willing to go with her. There is no bar to the
minor visiting or staying in America keeping in view her welfare not
particularly when standard of education is much higher than this place.
Therefore, it is
submitted that no ground is made out to produce the minor in Court and that the
application is misconceived and merits dismissal with costs. Respondent No.3
had also stated that he had taken the minor child Simran to U.S.A for vacation
and for educational purposes so that she got an exposure, travelling itself is
an education. The respondent did not seek the permission of the Court as it was
not required. In para 20, he stated that child is already back from U.S.A. and
is happily studying in one of the best educational institutions of Amritsar and
the child is happy and comfortable and being well educated in the house of the
The matter was listed
for hearing on various dates and the parties were present at the hearing.
1. On 07.01.2005,
counsel for the respondents was directed to ensure the presence of the child
(Simran) in Court on 28.01.2005 along with her original passport and her
renewed passport, if any, be also produced.
2. On 28.01.2005,
counsel appearing for the respondents stated that the passport has been lost.
This Court thereupon directed the respondents to place on record the affidavit
stating the passport number, approximate date on which it was obtained/issued, visas,
if any, for visit to any country. They were also directed to explain as to why
they did not handover the custody of the child Simran to the mother inspite of
the Court orders.
3. On 14.02.2005,
this Court passed the following order:- "The original Passport No.B0591819
issued on 6.9.1999 (expired on 5.9.2004) and renewed original Passport
No.F0355467 issued by the Passport Office, Jalandhar, on 10.9.2004 (which will
expire on 31.12.2006) of the minor child Harsimran (now Simran) which have been
produced today in Court are directed to be kept in the Court custody in a
sealed cover. The earlier stand taken by the respondents that the original
passport had been lost and an FIR had already been registered to that effect
stands falsified with the production of these passports and by the subsequent
affidavit dated 9th February, 2005 filed by respondent No.4 with a simplistic
statement that it was done by mistake.
We are not satisfied
with the explanation offered in the affidavit dated 9th February, 2005. Prima
facie, we are satisfied that the respondents have tried to create false
evidence of loss of the passports and deliberately made a false-statement to
Let notice under the
Contempt of Courts Act be issued to respondent nos. 2 to 4. Mr. Manoj Swarup,
Adv. Accepts notice on behalf of Respondent Nos. 2 to 4. He seeks three weeks
time to file reply to show cause.
Adjourned to 18th of
Respondents, who are
present in person, along with the minor child (Simran) are directed to remain
present in Court on the adjourned date of hearing.
Counsel for the
petitioner is permitted to peruse the Passports in the presence of an Officer
of the Court not below the rank of a Deputy Registrar."
4. On 18.03.2005,
notice under the Contempt of Courts Act was also issued to respondent No.5 and
Mr. Manoj Swarup, counsel, accepted the notice on behalf of respondent No.5 and
undertook to file a reply. A further direction was issued on that date
directing the respondents/contemnors Nos. 2 to 5 to surrender their passport to
the Registrar of this Court and remain present in person on the next date of
hearing i.e. 21.04.2005 and the minor child also.
5. On 21.04.2005, the
following orders were passed:- "On the previous date of hearing,
Respondents-Contemnors Nos. 2 to 5 were directed to surrender their Passports
to the Registrar of this Court and remain present in person on the next date of
hearing, i.e., today.
Minor child (Simran)
was also directed to be present before us today.
The petitioner and
Respondent Nos. 2 and 4 and the minor child are present in Court.
Respondents 3 and 5
are stated to have gone out of country. The Passports bearing Nos. F 2015362
issued on 11/2/2005 (expiring on 15.3.2009) and E 0077744 issued on 1st of
November, 2001 (expiring on 31.10.2011) by the Passport Office, Jalandhar, in
favour of Gurbachan Singh Batra (respondent No.2) and Harbans Kaur (respondent
no.4) respectively have been surrendered before us in Court today by the
counsel for the respondents. These passports are ordered to be kept in a sealed
cover in court custody. Counsel for the respondents seeks time to ascertain as
to when Respondent Nos. 3 and 5 left the country and also when are they likely
to come back.
Adjourned to 6th of
6. On 06.05.2005, the
following orders were passed:- "To be listed in the 3rd week of July,
In the meantime, Mr.
Manoj Swarup, Adv. shall file an affidavit stating the particulars of the
passports of Respondent/Contemnor Nos. 3 and 5, including the date of issuance
and expiry thereof.
He is also directed
to place on record a zerox copy of the passports issued to these
respondents/contemnors. He shall be at liberty to file additional documents, if
No.2 is not present today.
and the minor child, namely, Simran, are directed to be present in Court on the
next date of hearing."
7. On 15.07.2005,
having regard to the nature of the dispute, this Court decided to resolve the
dispute as far as is scientifically accurate, by having the DNA of (i) the
petitioner, (ii) the child claimed to be the daughter of the petitioner, (iii)
Arminderjit Singh Batra and (iv) Ranjeeta Kaur, tested. It was stated by
learned counsel appearing on behalf of the respondents that both Arminderjit Singh
Batra and Ranjeeta Kaur are in the United States in connection with their son's
grave illness. The matter was adjourned by four weeks to file affidavit to the
aforesaid effect. In the meanwhile, the DNA test will go on as directed. At the
time of hearing, the envelopes containing the passports of Gurbachan Singh
Batra, Harbans Kaur and two passports of Harsimran which were opened in Court
and are resealed and kept in safe custody. It was also recorded that the
passport of Harsimran issued on 06.06.1999 was shown to the petitioner who was
present in Court and who had stated that the photograph of the child on the
passport is not her daughter.
As directed by this
Court, the petitioner - Nirmaljit Kaur and baby Simran appeared in the Chamber
of Dr. Bhupendra Nath in-charge CGHS Polyclinic, Supreme Court on 12.08.2005
with their respective counsel and the blood samples for DNA test of Nirmaljit
Kaur and baby Simran were collected by Dr. Bhupendra Nath by following the
procedure as directed by Dr. Seyed Hasnain, Director, Centre for DNA Finder
Printing, Hyderabad in the presence of Mr. V.K. Jain, Registrar (J-I). Blood
samples were kept in separate vials. The vials were signed by Dr. Bhupendra
Nath as well as Mr. V.K. Jain and after putting cello tape the vials were kept
in separate pouches and then both the pouches were put in another pouch before
putting them in the thermos flask containing ice which was wrapped in a cloth
and sealed with the stamp of the Supreme Court of India and was sent to the
Director, CDFD, Hyderabad through Bluedart Courier Express Ltd. on 22.08.2005.
A letter dated 22.08.2005 giving the specimen signature of Dr. Bhupendra Nath
and Mr. V.K. Jain was also sent to the Director, CDFD, Hyderabad stating that
the signature of Dr. Bhupendra Nath and Mr.
V.K. Jain may be
tallied with the signature on the vials and if any discrepancy if found, the
same may be reported immediately to Mr. V.K.Jain. But regarding discrepancy in
signature nothing has been reported. A sealed cover had been received on
02.09.2005 from CDFD, Hyderabad. The DNA report reads as follows:- "DNA
TYPING EVIDENCE FOR ESTABLISHING MATERNITY 30th August,2005 Registrar General
Hon'ble Supreme Court of India New Delhi-110 001.
Sub:- Submission of
DNA typing report in Contempt Petition(Crl.)1/2005 In WP(Crl.)No.110/2003 on
the file of Hon'ble Supreme Court of India- Regarding.
CDFD File No.1648 DNA
typing report No.CDFD/LDFS/2005-1648 DESCRIPTION OF SOURCE Name of the
source/sample Received on Exhibit Exhibit No.
Blood sample said to
be of Smt.
Identification Form No.1 23.08.2005 A X14a Blood sample said to be of Ms.
Identification Form No.2 23.08.2005 B X14b DNA was extracted from the source of
the above exhibits and DNA profiles were prepared. AmpF/STR identifiler was
used for DNA profiling of the samples. Data was analysed by using genescan and
EXAMINATION The DNA profile of the source of exhibit B (Ms Simran Batra) is not
matching with the DNA profile of the source of exhibit (Smt. Nirmaljit Kaur).
The alleles shown by red colour in the enclosed table-1 present in the DNA
profile of the source of exhibit B are unaccounted in the DNA profile of the
source of exhibit A.
CENTRE FOR DNA
FINGERPRINTING AND DIAGNOSTICS CONCLUSION The DNA test performed on the
exhibits provided is sufficient to conclude that the source of exhibit A (Smt.
Nirmaljit Kaur) is not the biological mother of the source of exhibit B (Ms.
Sd/- [CH V GOUD]
Technical Examiner CH V GOUD Technical Examiner DNA Fingerprinting Laboratory
Centre for DNA Fingerprinting and Diagnostics DBT, Ministry of Science &
Technology Government of India, Hyderabad-500 076 Enclosures 1-4
Electropherograms 5 Table-1 allelic data analysis 6-7 identification
forms" Enclosures 1-5 and Identification Form of the petitioner Nirmaljit
Kaur and Simran Batra. Enclosures 6 & 7 have also been received along with
the DNA Report.
Thus the DNA test
performed on the petitioner-Nirmaljit Kaur and Ms. Simran Batra conclusively
proved that the source of exhibit A (Nirmaljit Kaur) is not the biological
mother of the source of exhibit B (Ms.Simran Batra). It is the consistent stand
of the petitioner that she being a widow is entitled to act as a natural
guardian of the minor legitimate daughter by reason of the fact that the father
of the child is dead. She is entitled to exercise all the rights of a natural
guardian of the minor. It is also her case that the respondents in furtherance
of the criminal conspiracy to grab the property of the petitioner's husband
caused her daughter Simran Kaur to disappear without the permission of the
Court. The petitioner has not been allowed to meet her child despite various
requests made by the petitioner. It is also now proved by the DNA test that the
child produced before the Court is not her real daughter.
It has been clearly
stated in the counter affidavit filed on behalf of respondents 2-5 that minor
Simran Batra was living with respondent No.3 almost since her birth, which
according to them, was so because of the indifferent attitude of the petitioner
towards minor Simran Batra right from the beginning. It is the case of the
petitioner that her husband died on 23.2.1997 intestate and on the same date
respondents 2-5 forcibly took away baby Simran Batra from the petitioner with
ill-design. It is also her case that the respondents have fabricated a Will
dated 19.10.1996 and registered the same after the death of the testator on
31.3.1997. When the child produced before the Court is not the child of the
petitioner which is now proved by the DNA test it is the duty of respondents
2-5 to produce the child which was forcibly taken by them on the date of the
death of her husband i.e. on 23.2.1997. Respondents 2-5 have come to Court with
unclean hands and with a view to grab the property of the late husband of the
A direction was
issued to the counsel for the respondent to produce the original passport of
minor Simran Batra. The counsel, on 28.1.2005, informed the Court that the
passport has been lost. This Court directed the respondents to place on record
the affidavit stating the passport number, approximate date on which it was
obtained/issued visas, if any, for visit to any country. They were also asked
to explain as to why they did not hand over the custody of the child to the
petitioner-mother in spite of the Court orders. On 9.2.2005, respondent No.4
filed affidavit stating that the grave mistake has been committed while getting
passport issued to Simran Batra and the wrong information had been given to
obtain the passport and that respondent No.4 regrets that this mistake was
committed. It is further stated thus:
declaration is in regard to the name of the child. The child was described as
Harsimaran d/o Arminderjit Singh r/o 86, Golden Avenue, Amritsar(Punjab).
That this grave
mistake happened on account of the fact that Simran could not be issued
passport without the signatures of her mother-Nirmaljit kaur. In 1999, father
of Simran, Sardar Surinder Singh was not alive. He expired in the year 1997.
The petitioner would never have signed the application for issuance of passport
It is for this reason
that this grave mistake was committed with a view to send the child-Simran to
America. At that time, Arminderjit Singh alongwith his wife Ranjita and their
daughter Sharmeen were going to America.
That the deponent
deeply regrets about this grave mistake.
The deponent places
on record her unconditional apology for this mistake." On 14.2.2005, the
original passport issued on 6.9.1999 and the renewed passport issued on
10.9.2004 of the minor child Simran Batra have been produced in Court. As the
earlier stand taken by the respondents that the original passport had been lost
and the FIR had already been registered to that effect stands falsified with
the production of these passports and the subsequent affidavit dated 9.2.2005
filed by respondent No.4 with a simplistic statement that it was done by
mistake. This Court not being satisfied with the explanation offered in the
affidavit dated 9.2.2005 issued notice under the Contempt of Courts Act to
respondents 2-5. This Court, prima facie, was satisfied that the respondents
have tried to create false evidence of loss of the passports and deliberately
made a false statement to the Court.
respondent No.4, Harbans Kaur filed the following affidavit:- "That the
deponent had taken a stand earlier that the passport issued to Simran was lost.
This stand was totally incorrect. This stand ought not to have been taken.
expresses her remorse over having taken such a stand.
That deponent has no
words to express her regrets. Deponent tenders her unqualified apology for this
grievous mistake that has occurred.
That Simran could not
be issued passport without the signatures of her mother-Nirmaljit Kaur. In
1999, father of Simran, Sardar Surinder Singh was not alive. He expired in the
The Petitioner would
never have signed the application for issuance of passport to Simran.
That the contents of
this affidavit are true to my knowledge." Similar affidavit was filed by
respondents 2 & 5 expressing regret and unconditional apology for the said
act. Similar affidavit was also filed by respondent No.3 seeking pardon for
such a conduct.
The petitioner has
also reiterated in her affidavit filed on 15.3.2005 in paragraphs 4-6 which
read as under:
"4. That on
11.3.2003, the counsel for the petitioner perused the passports produced by
respondent Nos. 2 to 5. On perusal, it was found that the name of the child is
Harsimran, father's name is Arminder Jit Singh and mother's name is Ranjita
Dhingra (though respondent No.5 is married to respondent No.3 who is Batra).
The date of birth of Harsimaran is 01.01.1992.
5. That the date of
birth of the petitioner's daughter Simaran is 16.2.1992. Thus the child
produced before this Hon'ble Court is Harsimaran daughter of Arminder Jit
Singh. The respondents Nos. 2 to 5 must be in possession of the original date
of birth certificate of Harsimaran showing the parentage.
They may be directed
to produce the same. The petitioner reiterates that the child produced before
this Hon'ble Court is not her daughter and illegitimate child of Arminder Jit
Singh as stated by her in the petition.
6. The entries in the
passport fully support the case of the petitioner. The respondents want to get
out of this, and have stated that false declaration was made, as petitioner
would not have agreed for issue of passport. The identity of the child is
established to be that of Har Simaran daughter of Arminder Jit Singh and
further it can be established beyond doubt by conducting DNA test for which
Arminder Jit Singh's presence is required." It is thus clear that the
minor child of the petitioner is in the custody of respondent Nos. 2-5. It is
also proved by the DNA test that the child produced before the Court is not the
child of the petitioner. Therefore, the respondents are bound to produce the
real child of the petitioner before this Court. We, therefore, issue the
direction in the nature of Habeas Corpus directing respondent Nos. 2-5 to
produce Baby Simran Batra daughter of petitioner in body in this Court
enabling the petitioner to have the custody being the natural mother. Prayer(a)
of the writ petition is ordered accordingly with costs assessed at Rs.10,000/-.
Respondent Nos. 2-5
shall produce Simran Batra on 6.1.2006 in this Court. Call this matter on
6.1.2006 for further directions.
While the direction
was issued by this Court to produce the passport, the counsel made a statement
at the next hearing that the passport had been lost. When the Court directed
the respondents to place on record the details of the passport etc. by an
affidavit, the respondents filed an affidavit expressing deep regret about the
grave mistake and produced the passport in Court. Thus it is seen that the
earlier stand taken by the respondents that the original passport has been lost
and the FIR has been registered to that effect stands falsified with the
production of these passports and by the subsequent affidavit dated 9.2.2005.
On 14.3.2005, the respondents have also filed an affidavit tendering their
unqualified apology for this grievous mistake that has occurred. We have
perused the similar affidavits filed by other respondents. The affidavits, in
our opinion, are not genuine and bona fide. The respondents have come to this
Court with unclean hands and with a false case. A perusal of the entire
proceedings in this Court and the proceedings pending before the other courts
would only go to show that the respondents' evil desire to grab the property
and to make the life of the petitioner- a widow with a girl child miserable.
The result of the DNA
test is now crystal clear that the child produced before this court is not the
real child of the petitioner and that the petitioner's real child Simran Batra
is in the custody of the respondent Nos. 2-5 elsewhere. Several deliberate
attempts made by the respondents were falsified by their own conduct in filing
affidavits and also the production of the passports in this Court. We,
therefore, have no hesitation to hold that respondent Nos. 2-5 are guilty of
contempt of this Court and, therefore, they are liable for punishment for their
proved misconduct. They have committed the contempt knowingly and that it is
attributable to the neglect on their part. Respondents 3 & 5 have not so
far appeared before this Court under one pretext or the other. In our view,
respondent Nos. 2-5 are liable to punishment for their proved disobedience of
We, therefore, impose
a fine of Rs.2000/- each to be deposited within three days from this day in
this Registry failing which the respondents shall be punished with simple
imprisonment for a period of one month each.
Both the writ
petition and the contempt petition are ordered accordingly.
The Registrar General
is directed to keep the passports which have been surrendered before this court
in safe custody until further orders.