Allahabad High Court
Granth Verma vs State Of U.P. And 4 Others on 22 September, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 16.09.2022 Delivered on 22.09.2022 Court No. - 84 Case :- HABEAS CORPUS WRIT PETITION No. - 521 of 2022 Petitioner :- Granth Verma Respondent :- State Of U.P. and 4 Others Counsel for Petitioner :- Sarvesh Counsel for Respondent :- G.A.,Mahesh Narain Singh, Shreyas Srivastava Hon'ble Saurabh Shyam Shamshery,J.
A. GENESIS OF PRESENT WRIT OF HABEAS CORPUS
1. Corpus, a seven years old boy, has approached this Court through his mother, Smt. Ashi Verma, alleging that Corpus was kidnapped by her husband, Gaurav Verma (Respondent-3) on 02.06.2022 taking advantage of good gesture shown by mother of Corpus to allow him to meet with Corpus. Respondents-4 and 5 are father and mother of Respondent-3, who are supporting her husband and they have misbehaved with her when she alongwith Police personnel went to their place to recover the Corpus. Hence, to recover the Corpus, present Habeas Corpus Petition is filed.
B. COURT'S INTERACTION WITH CORPUS
2. The Corpus is presently staying with his father who appeared before this Court on 16.09.2022 when this Court has interacted with him and brief of the same is mentioned in the order dated 16.09.2022, when after hearing counsel for parties judgment was reserved. For reference the relevant part of said order is mentioned hereinafter:
"1. The Corpus (a 7 years old boy) appeared before this Court alongwith his father. The Court itself interacts with boy in a very cordial atmosphere. The boy is in joyable mood and enjoying Court proceedings for past an hour and responds to informal interaction in very respectful manner. He answers wisely to some general knowledge questions. The boy has no complaint with his father, though he has some minor issues with his mother and conversation ends with mature observation by Corpus that he wants to live happily alongwith his mother and father, both and agreed to a suggestion of the Court that he will hold hands of his Mummy and Papa to live happily together as a family."
C. INTER-PARENTAL CONFLICTS; ITS' EFFECT ON CHILDREN
3. "Inter-Parental Conflict and Children's Psychological Development" are now also termed as "Child Affected by Relationship Distress". It remained an important subject for research scholars and various research papers are available on research related website which have considered "loyalty conflict", "parental alienation" etc. Few of them alongwith their conclusion/observation are referred hereinafter:
I. IRE JOURNALS (ISSN 2456-8880); December, 2021: Effects of Inter-Parental Conflict on Children's Social Well-Being and the Mediation Role of Parenting Behaviour-Author Stephanie Hess-In this paper the author after research come to the conclusion "study overall provides empirical evidence for the negative impact of inter-parental conflict on children's social well-being through a cascade of negative behavior within the family environment that spills over to the school environment. Children of parents who have frequent inter-parental conflicts perceive their mothers and fathers to be less warm and to communicate more negatively, which, in turn, leads to more peer problems and less pro-social behaviour in those children."
II. The Journal for Child Psychology and Psychiatry, Volume 59, Issue 4, Page 374-402: Annual Research Review: Inter-parental Conflict and Youth Psychopathology: An Evidence Review and Practice Focused Update; Authors Gordon T. Harold, Ruth Sellers: The Authors after study observed, "review highlights that frequent, intense, poorly resolved, and child-related inter-parental conflict adversely affects long-term emotional, behavioural, social, academic development, and future intergenerational/interpersonal relationship behaviours for youth."
III. International Journal of Scientific Engineering and Research (IJSER), Volume 7, Issue 3, March 2016: Effect of Parent's Conflict on Children: Author Khoolud Alamoudi-The conclusion of paper is that, "in conclusion, parents' conflicts damage children in many aspects, three of which are physical, psychological, and psychical effects. The impact of parents' conflicts could follow children until they grow up."
D. RIVAL SUBMISSIONS
4. Sri Sarvesh, learned counsel for petitioner and Sri Mahesh Narain Singh, Advocate for Respondents-3 to 5, have vehemently presented the case of their parties. There were submissions and counter submissions as well as allegations and counter allegations. The conflict between parties are like head on confrontation.
5. Learned counsel for petitioner submitted that father and mother of Corpus got married on 08.02.2010 and two sons were born out of their wedlock. Elder son is Corpus, who is seven years old and younger one is presently residing with mother. It is the case of mother that she was tortured for many years and even an attempt to murder was also made when she was thrown away from a running train. In this regard she has lodged an FIR under Sections 498A, 323, 504, 307 IPC. The Corpus was abducted and tortured. He was forced to work at hotel of his father. The family members of husband have assaulted her when she went alongwith Police personnel to recover the Corpus. The mother has also lodged FIR against her husband and family members for attempt to murder, however, it is alleged that Police personnel, under force and influence of opposite parties, have lodged FIR only under Sections 323, 504, 506 IPC, despite she has suffered injuries which were mentioned in medical examination report. She has also filed a criminal case under Section 125 Cr.P.C. for maintenance. Learned counsel further submitted that mother of Corpus was forced to sign papers of compromise, on the basis of which police submitted final report and case filed under Section 125 Cr.P.C. was also withdrawn. In support of allegations mother has made statement under Section 164 Cr.P.C., however, under the garb of compromise final report was submitted. Learned counsel has also placed reliance on certain photographs that father-in-law of petitioner had not only assaulted her but also touched her inappropriately and that the Corpus was very happy with the company of his mother, however, father has abducted him and, therefore, Corpus shall be returned back to her mother. It is also contended that the Corpus has been withdrawn from a very good school, i.e., St. Mery's Convent School and now he has been admitted in a sub-standard school.
6. Sri Mahesh Narain Singh, learned counsel for Respondents-3 to 5, has vehemently opposed the above submissions and placed counter allegation that Corpus was tortured and he was not happy with his mother, therefore, on his own sweet will he accompanied his father and presently residing happily. Compromise was entered with open eyes by parties and the mother tried to execute the same by Police personnel which was not permissible. There are video clippings to show that she was hale and hearty when she was recovered at Gwalior Railway Station. He denied the allegation of attempt to murder of the mother of Corpus. There are video clippings to show that mother and her parents were aggressor and tried to take the Corpus forcefully against his will. The Corpus is in a legal company of his father, therefore, this habeas corpus petition is not maintainable and further the mother has not lodged any FIR that her son was kidnapped.
E. LAW ON WRIT OF HABEAS CORPUS
7. "Habeas Corpus" is a Latin word which literary means "to have the body of". The High Court under Article 226 of the Constitution can issue a writ of habeas corpus to a person who has detained another person, to produce the later body before it. The scope of writ of habeas corpus of a minor from the custody of mother as well as from father has been discussed in various judgments passed by this Court as well as Supreme Court and some of them are mentioned hereinafter:
I. Rohit Thammana Gowda vs. State of Karnataka and others, 2022 SCC OnLine SC 937:
"8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question ''what is the wish/desire of the child' is different and distinct from the question ''what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ''what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, ''what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits." (Emphasis supplied) II. Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42:
"19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."
"26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.
27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu, it was held as under:-
"49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to "human touch". The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court observed:
"13. ... the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other."
52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor." (Emphasis supplied) III. Nil Ratan Kundu vs. Abhijit Kundu, (2008) 9 SCC 413 (relied by counsel for petitioner):
"52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor."
"57. In our opinion, in such cases, it is not the `negative test' that the father is not `unfit' or disqualified to have custody of his son/daughter is relevant but the `positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian.
58. Though this Court in Rosy Jacob held that children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh `immediately' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal ordered handing over Antariksh to his father within twenty four hours positively. We may only state that a child is not `property' or `commodity'. To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem."
(Emphasis supplied) IV. Anjali Kapoor vs. Rajiv Baijal, (2009) 7 SCC 322 (relied by counsel for Respondents-3 to 5):
"16. In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that:
"....An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment."
"22. Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughter's image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child."
"26. Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child." (Emphasis supplied) V. Athar Hussain vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654 (relied by counsel for Respondents-3 to 5):
"31. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour of the father as under Section 19 of the GWC Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. It is also true that the respondents, despite the voluminous allegations leveled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better.
32. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 3 S.C.R. 918, keeping in mind the distinction between right to be appointed as a Guardian and the right to claim custody of the minor child, this Court held so in the following oft-quoted words:
"Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them."
"35. Keeping in mind the paramount consideration of welfare of the children, we are not inclined to disturb their custody which currently rests with their maternal relatives as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship."
"42. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents. Further, the balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle.
43. A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that respondent no.3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application.
44. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain.
45. The learned counsel for the appellant placed reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee AIR 2004 UTR 1 wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttranchal High court in that case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children."
(Emphasis supplied) VI. Syed Saleemuddin vs. Dr. Rukhsana, (2001) 5 SCC 247 (relied by counsel for Respondents-3 to 5):
"9. A Constitution Bench of this Court in the case of Kanu Sanyal vs. District Magistrate, Darjeeling and others (1973 (2) SCC 674) dealing with the nature and scope of a writ of Habeas Corpus observed :
"It will be seen from this brief history of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detailed is directed in order that the circumstances of his detention may be inquired into, or to put it differently, in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint. The form of the writ employed is We command you that you have in the Kings Bench Division of our High Court of Justice immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody together with the day and cause of his being taken and detained to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf. The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes (supra), the essential and leading theory of the whole procedure is the immediate determination of the right to the applicants freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end."
10. This Court in the case of Gohar Begam v. Suggi Alias Nazma Begam and others (1960(1) SCR 597) dealt with a petition for writ of Habeas Corpus for recovery of a illegitimate female infant of an unmarried Sunni Muslim mother, took note of the position under the Mohammedan Law that the mother of an illegitimate female infant is entitled to its custody and the refusal to restore such a child to the custody of its mother would result in an illegal detention of the child within the meaning of Section 491 of the Criminal Procedure Code. This Court held that the dispute as to the paternity of the child is irrelevant for the purpose of the application and the Supreme Court will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised. This Court further held that in issuing writs of Habeas Corpus the Court have power in the case of an infant to direct its custody to be placed with a certain person.
11. From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court. Unfortunately, the Judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri M.N. Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children." (Emphasis supplied) VII. Vahin Saxena (Minor Corpus) and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 467 of 2021), decided on 27.08.2021 (relied by counsel for Respondents-3 to 5):
"7. The writ of habeas corpus is a prerogative writ and an extraordinary remedy. It is writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, as held in Mohammad Ikram Hussain v. State of U.P. and others, AIR 1964 SC 1625 and Kanu Sanyal v. District Magistrate Darjeeling, (1973) 2 SCC 674.
8. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in Sayed Saleemuddin v. Dr. Rukhsana and others, (2001) 5 SCC 247, and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was stated thus:
"11....it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well-settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court..."
"12. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant become entitled to the writ as of right.
13. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his welfare requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody he presently is.
14. Proceedings in the nature of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy, and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the detention of a minor is by a person who is not entitled to his/her legal custody.
15. The role of the High Court in examining cases of custody of a minor, in a petition for a writ of habeas corpus, would have to be on the touchstone of the principle of parens patriae jurisdiction and the paramount consideration would be the welfare of the child. In such cases the matter would have to be decided not solely by reference to the legal rights of the parties but on the predominant criterion of what would best serve the interest and welfare of the minor.
16. In a given case, while dealing with a petition for issuance of a writ of habeas corpus concerning a minor child, directions may be issued for return of the child or the Court may decline to change the custody of the child, keeping in view all the attending facts and circumstances and taking into view the totality of the facts and circumstances of the case brought before the Court; the welfare of the child being the paramount consideration." (Emphasis supplied) VIII. Shaurya Gautam (Minor) and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 140 of 2020), decided on 10.11.2020 (relied by counsel for petitioner):
"14. It was also emphasized in Nil Ratan Kundu that wishes of the minor ought to be taken into consideration, where the minor is of an age that he can express his/her intelligent choice. This is a principle embodied in Section 17(3) of Act, 1890. Bearing in mind these facts, this Court carefully interacted with the elder of the two minors, that is to say, Shaurya Gautam. He is a 10-year old boy and fairly intelligent. He informed the Court that he and his sister stay at Sri Braddhanand Bal Ashram, but he is not at all disturbed about the fact that his maternal grandmother has placed him and his sister there. He also told the Court that there is a school, which he and his sister attend. The grandmother (nani) comes over to meet Shaurya and his sister. He is emphatic that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel. During the course of conversation, the child emotionally broke down and wept. He insisted upon staying with the hostel and refused to go back to his father. Smt. Brahma Devi Tiwari, the minors' grandmother, told the Court that she stayed alone. Her daughter and son-in-law live close by. On being asked why she does not house the children in her home, she said that she is fearful of their father. He would kidnap both of them and get her framed in a false case. It is for the said reason that she has housed the two children in the ashram. The minors' aunt, Smt. Uma Rawat, told the Court that she is a housewife. Her husband is an engineer in a US-based firm, domiciled in Dehradun. She also reiterated that they do not keep the children with them, because the father would get them implicated in some false case. The father, on being asked, denied these allegations and said that he never threatened his in-laws."
IX. Gyanmati Kushwaha and another vs. State of U.P. and others (Habeas Corpus Writ Petition No. 1217 of 2019), decided on 26.02.2021 (relied by counsel for petitioner):
"14. In the present case, the Court is deprived of knowing the wishes of the minor, because she is too young to express her intelligent choice. The minor's choice has been underscored by their Lordships in Nil Ratan Kundu and also in the provisions of Section 17(3) of the Act of 1890, but that can have no application in the present case, where the minor is a very young child, presently aged about three years and a half. It is the circumstances and the facts on record that alone can serve as a guide in the foreshadow of settled principles about the minor's welfare to decide the question of her custody. It is not known to this Court as to what are the circumstances appearing against the mother, on the basis of which she has been charged with conspiracy in her husband's murder. This Court ought not to investigate those circumstances also, that are the concern of the court where she is facing trial, but, as matters stand, she is an accused in a case relating to her husband's murder. The fact that she is an accused is not in doubt. One consequence of this fact is that she faces a situation where she could be convicted, though the presumption of innocence is all along with her. If she were to be convicted, the minor's welfare would be thrown into disarray. It would be irreversibly unsettling and debilitating in her formative years. It may even expose her to insurmountable trauma, if she witnesses her mother, whom she is bonded with, convicted in the case of her father's murder.
15. This Court assumes that the possibility of conviction may be remote or not so remote, but the possibility is there. The existence of this possibility and the adverse impact of the event, if it were to come to pass, would far outweigh the transitory benefit the minor would derive from her mother's care and company. This facet of the matter apart, the possibility that the mother might truly be a conspirator in her husband's murder, predicates a personality which would not be beneficial for the minor in grooming her about her moral values - a very important aspect of a child's welfare. On the other hand, if the mother is innocent and she is acquitted, the loss, the minor would suffer on account of deprivation of her mother's care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor's surer welfare, in preference to a contingent better, fraught with risk.
16. It is made clear that in the event the mother is acquitted by judgment based on doubt or otherwise, she would have the right to move a court of competent jurisdiction for her daughter's custody, which would then be decided in accordance with law."
X. Neelam vs. Man Singh and another, 2015(2) RCR (Civil) 291 (relied by counsel for Respondents-3 to 5):
"12. There are no two thoughts that the welfare and interest of the child is a paramount consideration for us. Apparently, the minor child is residing with her grand parents for the last almost 9 years. She is emotionally attached to them. It will be very difficult for her to change her place and stay with a family, her mother included, with whom she has no connection ever since she has started understanding things. Moreso, the minor has entered the age group where she is able to understand worldly relations to some extent and it will be very hard for her to accept separation from her grand parents. Therefore, we are of the considered view that the custody of the minor child should remain with the grand parents.
Thus, the conclusion irresistible is that the findings of learned trial Court declining the custody of the minor child to appellant Neelam deserves no intervention.
13. At the end of the matter learned counsel for the appellant prayed that appellant Neelam being mother of the minor child be allowed visiting rights. At this juncture, we find that it will do no good except injure or exploit the emotions and sentiments of the minor child if the mother is allowed to visit her at different intervals. There have been allegations of unchastity against the appellant. She has also faced trial in a criminal case that too relating to the unnatural death of father of the minor. For that reason, the visits of mother may adversely affect the minor girl psychologically and will disturb the atmosphere and the people she is living with. The minor girl is said to be 13 years old. After another 5 years she will be a major and will attain the age of majority and will be in a position to take appropriate decision regarding maintaining relations with the mother."
F. ANALYSIS
8. Undisputedly, there are counter allegations by mother and father including serious allegation of attempt to murder, giving torture to a minor and even of administering intoxicating substance to Corpus. There are FIRs also wherein investigation is either concluded or at the stage of protest petition. The relations between father and mother appears to be strain. Presently the younger child is with mother and Corpus, who is elder child, is with father. Mother, on the one hand, disputing compromise entered before Family Court, being signed under force, but on the other hand, placed heavy reliance on Clause 5 of compromise which provides that mother shall have overall right on both child and in fact by way of this habeas corpus petition she wants to implement or execute the said clause in her favour as her case is that Corpus was kidnapped by his father under the garb of visiting right, which is a clear violation of the conditions of agreement. She has even tried to execute the same by help of Police personnel, however, it was not materialized. Even otherwise, Police authorities have no business or right to execute a compromise executed in a Court of law in absence of any specific direction by Court concerned. Both mother and father are natural guardian of their children, therefore, to hold that the Corpus is in illegal custody of his father would not be a correct approach. Both families are residing nearby. Counter allegation of torturing the Corpus cannot be decided in a habeas corpus petition only on the basis of allegations and averments made in respective affidavits. So far as allegation of attempt to murder by in-laws and husband, as alleged by mother, is concerned, the same is subject matter of investigation, therefore, at this stage to take a view by this Court will adversely affect the investigation or proceedings thereafter.
9. As referred above, a writ of habeas corpus is a prerogative writ and extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown.
10. In Mohd. Ikram Hussain vs State Of U.P. & Others, 1964(5) SCR 86 it is held that, "writ of habeas corpus is a festinum remedium and the power can only be exercised in a clear case".
11. As referred above, the Court has interacted with Corpus and found that the boy is happy in the company of his father and grandparents and he wants to live with his parents, i.e., father and mother both. The Corpus appears to be in healthy condition and does not appear to be under any force or being tutored. Only because the father has admitted him in another school which allegedly to be a school of sub-standard, the Court cannot come to the conclusion that welfare of Corpus is not properly looked after by father.
12. There are contrary allegation on behalf of father also that Corpus was beaten by his mother and grandparents as and when he desires to visit his father. In absence of any evidence the Court cannot pass any final judgment to the allegations and further there are photographs of both sides that Corpus is happy alongwith his father and also with his mother, therefore, to take a judgement at this stage will only result in digging a deep valley between mother and father of Corpus.
13. As mentioned above, this Court has to take a prima facie view about the welfare of Corpus, a minor boy, which is the supreme consideration in cases concerning to custody of minor child and paramount consideration of the Court ought to be child's interest and welfare. There is no dispute that father is also a natural guardian of a minor child, as such, the Corpus is not in illegal detention or custody with his father. There is no order of any Court which has provided custody of Corpus to his mother. So far as execution of agreement is concerned, parties are at liberty to take available legal recourse. Parties are also at liberty to take legal recourse provided under Guardians and Wards Act, 1890.
14. As referred above, the Court has interacted with Corpus and does not find that his welfare is not properly looked after by his father. The Corpus is admitted in a school, namely, D.K. International School, Etawah and the Corpus has correctly answered few questions of general knowledge. Therefore, it cannot be said that presently father of Corpus is not looking after his son properly. It is also not a case of mother that her husband and family members are not financially sound. The Corpus was wearing good formal clothes and was looking hygienic.
G. CONCLUSION
15. The outcome of above analysis on facts as well as on law is that, father of Corpus is one of the natural guardian. The outcome of interaction with Corpus is that he is happy alongwith his father and has a keen interest in study. He has no complaints with his father and wishes that his parents and his younger brother stay together. The allegations and counter allegations are the part of scrutiny in police investigation. The parties have liberty to ascertain their rights of custody of their children in accordance with the provisions of Guardians and Wards Act, 1890 after exchange of pleadings and evidence. Therefore, the prayer of petitioner cannot be allowed.
H. DIRECTIONS I. The Corpus shall remain with his father till a contrary direction, if any, is passed by any Court of Law.
II. Father shall not obstruct or object the visiting rights of mother of Corpus and he shall permit his mother to meet the Corpus on any day with prior notice as well as on each Sunday in day time at his home and father will also have similar liberty to meet his younger son at his mother's home.
III. Mother and father of Corpus are also directed not to create any ruckus during their visit at respective houses to meet the child.
IV. The Investigating Officer is directed to organize a mediation between parties as well as, if necessary, organize a counselling session for parents also.
I. CONCLUDING REMARKS
16. As observed above, in a case of inter-parental conflict, a child may be affected by relationship distress and may develop loyalty conflict and parental alienation, therefore, parents are advised to settle their differences to fulfill the wish of Corpus which he expressed before this Court that he wants to live alongwith his younger brother father and mother as a family and wants to hold their hands to go his home alongwith his younger brother to live peacefully and happily.
J. ORDER
17. The prayers made in this habeas corpus petition are rejected and it is disposed of with above referred directions.
Order Date :-22.09.2022 AK