Allahabad High Court
Vaibhavi Sharma (Minor) And Another vs State Of U.P. And 3 Others on 8 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2152
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 A.F.R. Case :- HABEAS CORPUS WRIT PETITION No. - 2805 of 2018 Petitioner :- Vaibhavi Sharma (Minor) And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gulab Chandrara Counsel for Respondent :- G.A.,Anil Tiwari,Sharda Prasad Mishra Hon'ble J.J. Munir,J.
1. Akhilesh Sharma, the second petitioner says that his minor daughter, Km. Vaibhavi Sharma is in the unlawful detention of Surya Kant Sharma, the minor's grandfather (maternal) and the fourth respondent to this petition. Akhilesh Sharma wants this Court to issue a writ, order or direction in the nature of habeas corpus to liberate his minor daughter, Km. Vaibhavi Sharma from unlawful custody of the fourth respondent and to entrust the minor's custody to him.
2. A rule nisi was issued in this case on 05.10.2020, ordering the minor to be produced before this Court on 08.10.2020. The minor was produced. At the hearing of the rule, besides the minor, Km. Vaibhavi Sharma, who was produced by the police, the minor's father, Akhilesh Sharma and her grandfather, Surya Kant Sharma, were also present. This Court individually ascertained the stand of each of these parties, including the minor. This Court, particularly, inquired of the minor, her choice and comfort in the matter of custody. The Court also spoke to the minor's father and her grandfather (maternal), not only to ascertain their stand, but to gain acquaintance with so much of their affairs as would materially bear on the minor's welfare.
3. This cause has arisen in the backdrop of facts that Akhilesh Sharma, the second petitioner and Smt. Priyanka Sharma were married according to the Hindu rites at Bulandshahr on 16.02.2004. The late Smt. Priyanka Sharma was Surya Kant Sharma's daughter. Akhilesh Sharma and Smt. Priyanka Sharma lived together in their matrimonial home. Two children, a son, Vaibhav and Km. Vaibhavi Sharma, a daughter were born of the wedlock of parties. Vaibhav Sharma was born on 24.07.2006, whereas Km. Vaibhavi Sharma (the detenue) was born on 05.11.2013. As misfortune would have it, Smt. Priyanka Sharma met with an accident by fire while cooking on 11.07.2014. Akhilesh Sharma is said to have done his best to save his wife, but in vain. Akhilesh Sharma too, sustained serious burn injuries in the incident. Smt. Priyanka Sharma died of her injuries on 17.07.2014, during treatment at the Dr. Ram Manohar Lohia Hospital, New Delhi. Akhilesh Sharma was not prosecuted for any offence relating to his wife's accidental death, his innocence being known to the wife's family, including the fourth respondent. It appears that after Priyanka's death, the parties' minor children, Vaibhav and Km. Vaibhavi Sharma continued to live with their grandmother (paternal), Smt. Meena Sharma, who took good care of them. The son, Vaibhav is reading at the Heritage Academy, Modi Nagar, District Ghaziabad.
4. Akhilesh Sharma has moved on in life and has remarried one Smt. Sadhna Sharma. He remarried on 05.02.2016, well within the knowledge of Surya Kant Sharma and other kinsmen of his deceased wife. Smt. Sadhna Sharma is a Trained Graduate Teacher and employed as such in a School at Modi Nagar. She is claimed to be in receipt of a salary of Rs.6000/- per mensem. In addition, Smt. Sadhna Sharma also undertakes private tuitions, that yield her a further income of Rs.4000/- per month. Akhilesh Sharma claims to be well educated and a qualified young man, who undertakes private tuitions, that yield him an income of Rs.25,000/- per month. He is an income tax payee. Akhilesh Sharma says that when the detenue was an infant of eight months, she was taken away by Surya Kant Sharma with the assurance that as soon as she grows a little older and becomes a manageable child, she would be entrusted back into the care and custody of her father. This happened before Akhilesh Sharma remarried.
5. It is also claimed by Akhilesh Sharma that Km. Vaibhavi Sharma came back to him in the month of May, 2017, comfortably settling in her father's family. Surya Kant Sharma visited Akhilesh Sharma on 15.06.2017 and persuaded him to permit Km. Vaibhavi Sharma to accompany her grandfather (maternal) for a few days. Akhilesh Sharma agreed and Km. Vaibhavi Sharma went along with the fourth respondent. Akhilesh Sharma says that he went to Surya Kant Sharma's place on 21.06.2017 to fetch his daughter back, but the latter demanded money spent on the child's board and lodging. Surya Kant Sharma is claimed to have badly insulted Akhilesh Sharma and refused to allow the detenue to accompany her father. This led to a complaint by Akhilesh Sharma to the Police. And, that is how a cause about illegal confinement has arisen.
6. The aforesaid broad statement of facts is based on how Akhilesh Sharma, the second petitioner has brought up this cause. There are some matters, about which parties are ad idem; but there are more, where the parties are at issue. Surya Kant Sharma has filed a counter affidavit, dated 14.05.2018 in compliance with the notice issued by this Court vide order dated 30.01.2018. The following facts have been brought out in the fourth respondent's counter affidavit: Akhilesh Sharma's wife and the fourth respondent's daughter died in circumstances that are not benign. There was a background of cruelty and harassment for dowry. Her death occurred under suspicious circumstances, as a result of burn injuries. Surya Kanta Sharma's family did their best to know the circumstances in which their daughter perished in the fateful accident by fire, but to no avail. It is hinted that an FIR was not lodged because there was some other matrimonial alliance between the two families.
7. All this may not be very relevant and this Court would be content to remark that Akhilesh Sharma, for whatever reason, was not prosecuted vis-a-vis his wife's death. It is then pointed out on behalf of the fourth respondent that Akhilesh Sharma is not a highly qualified person, but a graduate. He does not have any diploma or a higher degree, entitling him to teach. Akhilesh Sharma lives separately in his father's house. He has no secured job or a dependable income. His mother is an illiterate woman and a simple housewife. She is aged 65 years. Akhilesh Sharma's brother stays away from their father's family. He too does not have any dependable source of income. He is married and has a daughter. Akhilesh Sharma has married Sadhna, a divorcee on 05.02.2016. Sadhna too does not possess any qualifications, entitling her to teach. She is a shrewd woman, who does not take care of Akhilesh Sharma's son, Vaibhav, who has stayed on in his father's home. The atmosphere at Akhilesh Sharma's home is not conducive to a healthy grooming for the detenue. Akhilesh Sharma's father, Pt. Deoki Nandan Sharma has renounced the world and become an ascetic (Sadhu). Akhilesh Sharma, his brother and mother, all stay separately.
8. About himself, Surya Kant Sharma says that he is a retired employee of the U.P. Power Corporation. He retired as a Technician Grade-2. He has two sons: one a reputed businessman and the other an Advocate, practicing at the District Court, Bulandshahr. His daughters-in-law are also educated women, who take good care of the detenue. The fourth respondent's wife too is a literate woman and has a caring hand for the detenue, who is her deceased daughter's daughter. The detenue is happy in her grandfather's home. It is also asserted for a fact by Surya Kant Sharma that his grandson, who lives in his father's household, complains to him about the misbehaviour of his stepmother (Akhilesh Sharma's wife), during telephonic conversation and occasional meetings. It is also said that Akhilesh Sharma had given the custody of his eight months' old infant daughter to Surya Kant Sharma on condition that he would not reclaim ever in the future.
9. During the hearing of this rule, this Court spoke to Km. Vaibhavi Sharma, the minor. She appears to be an intelligent child, all of seven years. She told the Court that she lives with her maternal grandparents (Nana and Nani) and goes to School. She reads in Class-II at the St. R.J. Public School. She also has a friend there going by the name, Mansi. She knows that her father stays at Modi Nagar and informed the Court that her father speaks to her over cellphone. She said in unqualified terms that she wants to stay with her maternal grandparents and does not want to go to her father. On being asked if the father loves her, she answered in the affirmative. The child was asked if she wanted to meet her father; she answered in the negative. The Court asked her if she wanted to meet her father at home, to which she signified her approval, nodding her head in affirmation supplementing her words.
10. Surya Kant Sharma told the Court that he was 61 years old and a retired employee of the U.P. Hydel Department. He is in receipt of pension. Back home, he has a wife, two sons, two daughters-in-law and three grand children. On being asked pointedly about the objection that he has to the minor being given into the custody of her father, he cited the father's remarriage as a cause of concern and the basis to object. He also said that the father has hardly an income of Rs.2000/- - 3000/- from the job that he undertakes. He also informed the Court that the minor has been staying with him since she was seven months old and that he is all inclined to bring up the minor.
11. The second petitioner, Akhilesh Sharma told the Court that he is 43 years old and his wife, the minor's mother died in an accident. He said that he has his mother, father, a brother and his wife at home. He did not dispute the fact that he has remarried. He further urged that his wife works in a private School, whereas he does business of dealing in scrap and also runs a coaching centre. He told the Court that he could earn Rs.3 - 4 lakhs a year. Akhilesh Sharma also told the Court that he has an average monthly income of Rs.50,000 - 60,000/-. Upon a pointed question as to why he did not ask earlier for the minor's custody, he said that he sustained injuries in the accident and was then not in a position to raise the infant. About his present desire to have his daughter's custody, Akhilesh Sharma said that he had asked for her custody much earlier, but the fourth respondent never agreed.
12. Heard Mr. Gulab Chandra, learned Counsel for the petitioners, Mr. Sharda Prasad Mishra, learned Counsel appearing on behalf of respondent no.4 and Mr. S.K. Pal, learned Government Advocate appearing on behalf of the State-respondents.
13. Mr. Gulab Chandra, learned Counsel for the petitioners submits that the second petitioner is the detenue's natural guardian by virtue of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, and that the father being around and seeking his minor daughter's custody, the minor's mother's father has no right under the law. He submits that quite apart from the law, the minor after all is part of his father's family, where her welfare would be far better secured than with the grandfather. It is argued that notwithstanding his second marriage, he has taken care of his son with no trouble. He has the necessary wherewithal to support and raise his minor daughter, the detenue. The fourth respondent's case about the second petitioner's wife ill-treating his son, Vaibhav is bereft of any evidence. Nothing has been brought on record to show that Vaibhav has any complaint in his father's household or that his welfare is in any manner adversely affected by the presence of the stepmother. Rather, the second petitioner's wife takes care of the child with all fondness and affection of a mother, which is essential to a child's balanced development.
14. Mr. Mishra appearing on behalf of the fourth respondent on the other hand says that there is no explanation why the minor was not accepted in the father's home when his wife passed away; or, as he says that there is no reason demonstrated why the father entrusted the custody of an infant daughter to her grandfather, which he now reclaims after years. The child's welfare is well taken care of by the grandfather, the grandmother, their two sons and their wives. There are other grandchildren of the fourth respondent, who are all integrated into a family with the minor being part of it. There is no case of unlawful detention. Mr. Mishra submits that there is no evidence brought on record to indicate that the minor's custody was handed over back to the father by the fourth respondent and then retaken. The minor has always been with her grandfather since she was seven months old. The fourth respondent has a Government pension to support the minor, whereas the second petitioner has no known source of income. The minor is, therefore, financially also insecure within her father's household.
15. Mr. S.K. Pal, learned Government Advocate has raised an objection about the maintainability of this petition. He submits that this petition does not disclose a cause of action for the issue of a writ of habeas corpus or some order in the nature of it. According to Mr. Pal, it is a custody dispute simpliciter, where the parties ought to approach the Court of competent jurisdiction under the Guardians and Wards Act, 1890. This petition, according to the learned Government Advocate, is not maintainable.
16. The issue whether a writ of habeas corpus in custody dispute about a minor is maintainable is no longer res integra in view of the decisions of the Supreme Court in Syed Saleemuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247, Nithya Anand Raghavan vs. State (NCT of Delhi) and another, (2017)8 SCC 454, Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 and Yashita Sahu vs. State of Rajasthan and others, (2020) 3 SCC 67. It is only in cases where the question of welfare of the minor is enmeshed in complicated detail of facts and evidence and this Court is handicapped to determine those questions in the exercise of its writ jurisdiction, that parties may be asked to approach the competent Civil Court, invoking jurisdiction under the Guardians and Wards Act. In all other cases, the Court can and must decide the question of illegal confinement between close family members, even parents of the minor. Of course, the determination made by this Court in a petition for a writ of habeas corpus is summary in nature. It is always subject to the right of the disillusioned party approaching the Court of competent jurisdiction under the Guardians and Wards Act asking for the minor's custody. The decision of the Judge under the Guardians and Wards Act would prevail upon this Court's determination in summary proceedings for the issue of a writ of habeas corpus. The petition is, therefore, held maintainable.
17. Now turning to the merits of the case, much has been made by Mr. Gulab Chandra of the fact that the second petitioner is the detenue's father and under Section 6(a) of the Hindu Minority and Guardianship Act, 1956 is the natural guardian. Section 6 of the Hindu Minority and Guardianship Act, 1956 is extracted below:
"6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother:
Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--In this section, the expressions "father" and "mother" do not include a stepfather and a stepmother."
18. Here, Section 13 of the Act under reference is also relevant, which reads:
"13. Welfare of minor to be paramount consideration.--(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
19. No doubt, the father is the natural guardian and normally it is presumed that welfare of the children is best secured in the hands of their parents; but, it is not an inflexible rule. Irrespective of the fact as to who the natural guardian is, the decision about custody of a minor is one where the minor's welfare is of paramount consideration. All legal rights to the minor's custody in favour of the natural guardian under the Personal Laws, codified or uncodified, stand subordinated to the consideration about the minor's welfare. Obviously, once the Court is required to determine who would best secure the minor's welfare, there cannot be a straitjacket formula about it. It is a question that has to be sensitively judged by the Court bearing in mind fine personal details about the parties, the circumstances and their behaviour. It must be remarked that Section 13 of the Hindu Minority and Guardianship Act, 1956 read with Section 6(a) have to be harmoniously construed. There is, in fact, no conflict between the two. Section 6 spells out the rule about who would be the natural guardian of a Hindu minor, whereas Section 13 envisages a rule by which the appointment or declaration of any person as a guardian of a Hindu minor is to be made. Now, a natural guardian may stricto sensu not fall within the mischief of the provisions of Section 13. These provisions relate to persons other than natural guardian, who have to be appointed or declared as such. In some cases, though a natural guardian, whose right is disputed as such, may have to seek a declaration about his legal status. There, the provisions of Section 13 would apply proprio vigore. In cases of natural guardian also, the principle embodied in Section 13 must also be extended when the issue is about the custody of the minor. The principle that welare of the minor is of paramount consideration was elaborately considered in Tejaswini Gaud (supra) by the Supreme Court, where their Lordships held:
"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 [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , it was held as under: (SCC pp. 427-28, paras 49-52) "49. In Goverdhan Lal v. Gajendra Kumar [Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 : 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 [M.K. Hari Govindan v. A.R. Rajaram, 2003 SCC OnLine Mad 48 : 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. [Kamla Devi v. State of H.P., 1986 SCC OnLine HP 10 : AIR 1987 HP 34] the Court observed: (SCC OnLine HP para 13) ''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."
28. Reliance was placed upon Gaurav Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] , where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51) "32. In McGrath (Infants), In re [McGrath (Infants), In re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed: (Ch p. 148) ''... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word "welfare" must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.' ***
50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] , the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. 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 itsparens patriae jurisdiction arising in such cases.
(emphasis in original)
29. Contending that however legitimate the claims of the parties are, they are subject to the interest and welfare of the child, in Rosy Jacob [Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840] , this Court has observed that: (SCC pp. 847 & 855, paras 7 & 15) "7. ... the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors.
***
15. ... The children are not mere chattels: nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred [Jacob A. Chakramakkalv. Rosy J. Chakramakkal, 1972 SCC OnLine Mad 90 : (1972) 85 LW 844] in reversing him on grounds which we are unable to appreciate."
30. The learned counsel for the appellants has placed reliance upon G. Eva Mary Elezabath [G. Eva Mary Elezabath v. Jayaraj, 2005 SCC OnLine Mad 472 : AIR 2005 Mad 452] where the custody of the minor child aged one month who had been abandoned by father in church premises immediately on death of his wife was in question. The custody of the child was accordingly handed over to the petitioner thereon who took care of the child for two and half years by the Pastor of the Church. The father snatched the child after two and a half years from the custody of the petitioner. The father of the child who has abandoned the child though a natural guardian therefore was declined the custody.
31. In Kirtikumar Maheshankar Joshi [Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573 : 1992 SCC (Cri) 778] , the father of the children was facing charge under Section 498-A IPC and the children expressed their willingness to remain with their maternal uncle who was looking after them very well and the children expressed their desire not to go with their father. The Supreme Court found the children intelligent enough to understand their well being and in the circumstances of the case, handed over the custody to the maternal uncle instead of their father.
34. As observed in Rosy Jacob [Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840] earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child's ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable.
35. The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child."
20. Now in this case too, this Court finds that the minor, Km. Vaibhavi Sharma is an intelligent and bright child. She attends a good School and reads in Class-II. She has expressed her definitive desire to stay in her grandfather's (maternal) household, where she is integrated into the family, almost since birth. She has been with them since she was seven months old. The father has not been able to come up with a logical explanation as to why he entrusted the care of his infant daughter to his father-in-law, the fourth respondent. He has also not been able to show by any evidence the steps he took earlier to secure the minor's custody. The grandfather is a retired Government servant and apparently has means to raise the minor. The minor seems to be happy in her grandfather's household. The emotional comfort and ease that the child finds in his/ her home is key to the development of a balanced personality. Within the limited scope of the inquiry that this Court undertakes in a petition for a writ of habeas corpus, this Court finds that affirmatively speaking the fourth respondent has shown that the detenue lives happily in his household, where she is taken care of, physically, emotionally and morally, and in all other necessary facets of her life and personality. On the other hand, there is one decisive feature that this Court cannot ignore. The father has remarried and there is a stepmother for the minor-detenue, if she were asked to be placed in the father's household. There is no presumption that every stepmother is a vamp, but the presence of a step-parent in the household of his/ her parent is certainly a strong circumstance that would weigh against the father's claim to custody; at least, in these summary proceedings it would be a very important factor. There is then the fact that the minor has stayed with the grandfather in his household, almost since her birth. In the circumstances, it would be very unjust to uproot her from that family and transplant her in her father's household. There is no such circumstance obtaining here that may persuade this Court to hold the grandfather's custody of the minor to be unlawful.
21. It is, however, made clear that it will be open to the second petitioner to establish his entitlement to the minor's custody before a Court of competent jurisdiction by invocation of such remedy as may be advised. In the event, the second petitioner approaches a Court of competent jurisdiction to establish his claim to the minor's custody, it shall be determined by that Court in accordance with law, without being influenced anything said here.
22. In the result, this Habeas Corpus Writ Petition fails and is dismissed. The rule nisi is discharged.
23. However, the minor's father, Akhilesh Sharma has a right to meet his daughter and spend time with her. Learned Counsel for the second petitioner has said that unless provision is made for visitation, the right of the father may remain a dead letter. In the circumstances, it is ordered that the second petitioner, Akhilesh Sharma shall be entitled to visit his daughter, Km. Vaibhavi Sharma at Surya Kant Sharma's home, where she lives, on the second Sunday of every month between 10:00 a.m. to 1:00 p.m. He will be allowed by Surya Kanta Sharma to spend time with his daughter. During each of these visits, Surya Kant Sharma and other members of his family shall extend all due courtesy to Akhilesh Sharma. It would be open to the parties to adjust the schedule of these visitations, but not so as to deprive the second petitioner of his right to visit his daughter at least once a month for three hours.
24. Let this order be communicated by the Joint Registrar (Compliance) to the learned District Judge, Bulandshahr, the learned Chief Judicial Magistrate, Bulandshahr and the Senior Superintendent of Police, Bulandshahr.
Order Date :- 8.10.2020 Anoop