Allahabad High Court
Rinku Rukshar vs State Of U.P. And 4 Others on 8 October, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 66 Case :- HABEAS CORPUS WRIT PETITION No. - 495 of 2020 Petitioner :- Rinku Rukshar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- G.K. Srivastava Counsel for Respondent :- G.A.,Radhey Shyam Hon'ble J.J. Munir,J.
1. This petition for a writ of habeas corpus has been filed by Rinku Rukshar, asking that the detenue, Asif, her minor son, be ordered to be produced before this Court from the unlawful custody of Arshad, the minor's father, and, set at liberty by being given into her custody. The relief though worded differently in substance seeks what the Court has delineated above.
2. The facts here go to show that Rinku Rukshar, the sole petitioner and the respondent no. 4, Arshad were married according to the Muslim rites on 14.12.2014. A child Asif, the minor, now aged a little less than six years was born of the wedlock of parties. The petitioner claims to have been driven away from her matrimonial home about five years ago, and since then, she is staying with her maternal aunt. It appears that on 13.05.2020, the husband Arshad came over to the petitioner's maternal aunt's place and said that she may come over and stay with him along with her children.
3. The petitioner appears to have stayed with the husband for a few days before bickerings, again marred the parties' matrimonial peace. She was once again thrown out of the matrimonial home, with the husband telling her that he could not take care of the petitioner and her children. It is the petitioner's case that on 04.08.2020, her husband assaulted her with an intention to kill. The petitioner called rescue at the Police facility number 112. Before the police could arrive, the petitioner's husband Arshad and Arshad's sister Reshma, who is the 5th respondent here escaped from the village, taking along with them the detenue, the petitioner's minor son, Asif.
4. The petitioner lodged a first information report against Arshad and his sister Reshma on 08.08.2020. This report was lodged on some portal relating to Jan Sunwai, where it has a reference number. It does not appear to have been registered as a crime. The petitioner's grievance is that no action has been taken by the Police to recover her son, the minor. It is the petitioner's case, therefore, that the minor's custody with the father, who has virtually snatched him away from her lap, along with his sister Reshma, is unlawful. The minor should be liberated from his father's custody unlawfully taken and held, and restored to the mother, the petitioner.
5. Heard Sri Dilip Kumar Srivastava, learned counsel for the petitioner, Sri Radhey Shyam, learned counsel appearing on behalf of respondent no. 4 and Sri Indrajeet Singh, learned AGA appearing on behalf of the State.
6. In compliance with the rule nisi issued by this Court on 05.10.2020, the minor-detenue Asif has been produced in Court. The mother, Rinku Rukshar and her husband, the minor's father Arshad have also appeared.
7. I have spoken to the minor, who is less than six years old. He is an intelligent child but of tender years. Though, he has expressed his wish to stay with his father but going by his age and maturity of the mental faculty, the choice is far from an intelligent one. The choice has been expressed that way out of emotions because he is staying with the father. This aspect of the matter shall be considered a little later in the judgement.
8. Learned counsel appearing for respondent no.4, Sri Radhey Shyam has raised a preliminary objection that a petition for a writ of habeas corpus cannot be maintained against the father, who is the minor's natural guardian. A writ of habeas corpus is available, according to Mr. Radhey Shyam, against an utter stranger or a distance kindred, who holds the minor in custody without any semblance of a right. Learned counsel for respondent no.4 emphasizes that the father is the minor's natural guardian under the personal law of parties. In case, the petitioner wishes to show that she has a better right to the minor's custody on the principle about the minor's welfare being paramount that ought to prevail over what the personal law of parties says, the remedy of the petitioner is to move the Court under the Guardianship and Wards Act, 1890 through an appropriately framed application under Section 25 of that Act, or as may be advised. Learned counsel for the petitioner Sri Dilip Kumar Srivastava rebutting the aforesaid contention submits that a writ of habeas corpus can issue against one parent, at the instance of the other, provided the parent who holds the custody does so unlawfully. He submits that by now, it is well settled that a writ of habeas corpus can issue in a custody dispute relating to children between the parents, both of whom are natural guardians, or generally under the law have a right to custody, provided the custody can be shown to be unlawful.
9. This Court has keenly considered the issue about the maintainability of this petition, where both parties are parents of the minor. This question fell for consideration of the Supreme Court in Syed Saleemuddin v. Dr. Rukhsana and Ors., (2001) 5 SCC 247. It was held in Syed Saleemuddin thus:
"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."
10. Again, the question arose before the Supreme Court in Nithya Anand Raghavan vs. State (NCT of Delhi) and another, (2017) 8 SCC 454. In Nithya Anand Raghavan, it was held:
"44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling [Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 : 1973 SCC (Cri) 980] , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247 : 2001 SCC (Cri) 841] , has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT of Delhi) [Paul Mohinder Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 : (2004) 113 DLT 823] relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition.
46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.
11. This question recently came up before the Supreme Court in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. In Tejaswini Gaud, their Lordships examined the question elaborately and held:
"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 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."
12. The maintainability of a habeas corpus petition in child's custody disputes figured as a prominent question very recently in a decision of the Supreme Court where a writ of habeas corpus was asked by one parent against the other to secure the custody of a child, who was claimed to be in the unlawful detention of the other. This question arose in Yashita Sahu vs. State of Rajasthan and others, (2020) 3 SCC 67. It was held in Yashita Sahu thus:
"10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary wirt jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw, Nithya Anand Raghavan v. State (NCT of Delhi) and Lahari Sakhamuri v. Sobhan Kodali among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable."
13. The issue about minor's welfare here can be conveniently resolved without a reference to facts that require a searching probe.
14. It may be remarked that this kind of an issue relating to the custody of a child when raised between two parents, is always tricky ground to tread on. This is so because in case of parents, the right to hold the child's custody under the law, rests with both of them.
15. The question of the custody, therefore, being lawful or unlawful has to be seen in some measure with the origin of the complaint or the transaction through which the custody has been taken away by one parent or the other, when they have separated. But, that test about the issue is less substantial. The legality of the custody held by one parent to the exclusion of the other would depend upon the kind of right that the parent who holds custody enjoys under the personal law of parties, and more than that, by the abiding principle that welfare of the child is of paramount consideration. This principle about the welfare of the child being of paramount consideration, working to the exclusion of all entitlement under the personal laws, is well recognized. The question of welfare of the minor has to be determined on the basis of various criteria about it, judicially evolved over time, applied to the facts and circumstances of each case. Once the Court finds that the custody with one parent subserves the welfare of the minor best, the custody with the other becomes unlawful enough to be corrected by way of a habeas corpus.
16. Of course, inquiry in proceedings for a writ of habeas corpus being summary, the determination of the question if found to be mired in too much complexity of facts and evidence, the parties may be asked to seek their remedies under the Guardianship and Wards Act, 1890. If it can be determined on obvious facts, not much in dispute, the writ must issue or be refused on merits according to the conclusion reached. Still again, the nature of remedy being summary, the Court may order custody in favour of one party or the other, leaving the party not found entitled, to establish his right before the competent forum under the Guardianship and Wards Act.
17. It is, therefore, held that this petition is indeed maintainable.
18. In the present case, what the Court finds is that the parties are Muslims where the personal law has some bearing on the question of guardianship and the right to custody of a minor. Under the personal law of the parties, the father, no doubt is the natural guardian of a minor but the right to custody in case of a minor boy is with the mother, till he attains the age of the seven years. It may be noted that there are different principles governing the guardianship of the person and property of the minor. Reference may be made with profit to Mulla's Principles of Mahomedan Law (Nineteenth Edition) by M. Hidayatullah and Arshad Hidayatullah. Section 352 of Mulla's Mahomedan Law, which falls under Part B of Chapter XVIII dealing with ''Guardians of the Person of a Minor', provides:
"352. Right of mother to custody of infant children. - The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."
19. Again, sections 353, 354 and 355 that have material bearing on the issue are extracted below:
"353. Right to female relations in default of mother.- Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:-
(1) mother's mother, how highsoever;
(2) father's mother, how highsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister;
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) consanguine sister's daughter;
(9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters.
354. Females when disqualified for custody.- A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody -
(1) if she marries a person not related to the child within the prohibited degrees (ss. 260-261), e.g., a stranger, but the right revives on the dissolution of marriage by death or divorce; or (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, (3) if she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child.
355. Right of male paternal relations in default of female relations.- In default of the mother and the female relations mentioned in sec. 353, the custody belongs to the following persons in the order given below:-
(1) the father;
(2) nearest paternal grandfather;
(3) full brother;
(4) consanguine brother;
(5) full brother's son;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of father's full brother;
(10) son of father's consanguine brother;
Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degrees of relationship to her (ss. 260-261).
If there be none of these, it is for the Court to appoint a guardian of the person of a minor."
20. Part C of Chapter XVII of Mulla's Mahomedan Law, makes provision regarding guardianship of the property of a minor. Section 359 reads thus:
"359. Legal guardians of property.- The following persons are entitled in the order mentioned below to be guardians of the property of a minor:-
(1) the father;
(2) the executor appointed by the father's will;
(3) the father's father;
(4) the executor appointed by the will of the father's father."
21. We had occasion to consider the question about the entitlement to custody of a minor child under the Muslim Law in Sahil (Minor) and another vs. State of U.P., Habeas Corpus Writ Petition No. 387 of 2020, decided on 03.09.2020, where doing a review of relevant authority, it was held:
"13. This entitlement of the mother to the custody of a minor male child (as well as female, which is not relevant here) fell for consideration of the Privy Council in Imambandi and ors. vs. Sheikh Haji Mutsaddi and ors., (1918-19) 23 CWN 50, where it has been held by their Lordships:
"It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian. The mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have charge for the time being of the infant....."
"As already observed, in the absence of the father, under the Sunni law the guardianship vests in his executor. It the father dies without appointing an execute or (wasi) and his father is alive, the guardians hip of his minor children devolves on their grandfather. Should he also he dead, and have left an executor, it vests in him. In default of these de jure guardians, the duty of appointing a guardian for the protection and preservation of the infants' property devolves on the Judge as the representative of the Sovereign (Baillie's "Digest," ed. 1875, p. 689; Hamilton's Heddya, Vol. IV, p. 555). ......"
14. This then is the position about the entitlement to the custody of a minor male child under the Muslim Law. But, it must be remembered that the personal law of parties is not the final word about entitlement to custody or guardianship in India. The right is regulated by statute. The statute is the Guardians and Wards Act, 1890. The principle that the provisions of the Guardians and Wards Act would prevail over the personal law of parties in the matter of appointment or declaration of a guardian of the person or the property of a minor, is a principle that has been accepted without cavil by consistent authority. The point was considered and the law expounded in Rafiq vs. Smt. Bashiran and another, AIR 1963 Raj 239. In Rafiq (supra), Jagat Narayan J. after doing a survey of the provisions of Sections 17 and 19 of the Guardians and Wards Act and relying on a decision of this Court in Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin Khan(1) Sulaiman, AIR 1932 All 215, held:
"The learned Senior Civil Judge ignored the provisions of Sec. 19 of the Guardians and Wards Act, which runs as follows:--
"Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person--
(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor."
He did not come to a finding that the father is unfit to be the guardian of the person of the minor.
It may be mentioned here that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act the latter prevail over the former. It is only where the provisions of the personal law are not in conflict with the provisions of the Guardians and Wards Act that the court can take into consideration the personal law applicable to the minor in the appointment of a guardian. The provisions of Sec. 19 of the Guardians and Wards Act prevail over the provisions of Sec. 17 which runs as follows:--
"(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will."
(3) In Mt. Siddq-un-Nissa Bibi v. Nizam-Uddin Khan, ILR 54 All 128 : (AIR 1932 All 215), Sulaiman, Acting C.J. observed at page 134 (of ILR All) : (at p. 217 of AIR): --
"The personal law has been abrogated to the extent laid down in the Act. Where, however, the personal law is not in conflict with any provision of the Act, I would not be prepared to hold that it has necessarily been superseded."
and at page 131 (of ILR All) : (at p. 216 of AIR)--
"There can be no doubt that so far as the power to appoint and declare the guardian of a minor under Sec. 17 of the Act is concerned, the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the court, which must look to the welfare of the minor consistently with that law. This is so in cases where Sec. 17 applies. In such cases the personal law has to this extent been superseded that it is not absolutely binding on the court and can be ignored if the welfare of the minor requires that some one else, even inconsistently with that law, is the more proper person to be appointed guardian of the minor. Sec. 19 then provides that "Nothing in chapter shall authorise the Court ...... to appoint or declare a guardian of the person (a) of a minor who is a married female and whose bus-band is not, in the opinion of the court, unfit to be guardian of her, person, or (b)...... of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor." The language of the section, as it stands, obviously implies that when any of the three contingencies mentioned in the sub-clauses exists there is no authority in the court to appoint or declare a guardian of the person of the minor at all; that is to say, the jurisdiction of the court conferred upon it by Sec. 17 to appoint or declare a guardian is ousted where the case is covered by Sec. 19."
There is nothing on record to show that the father of the minor is unfit to be the guardian of her person. As was observed in B.N. Ganguly v. G.H. Sarkar, AIR 1961 Madh-Pra 173 there is a presumption that the parents will be able to exercise good care in the welfare of their children."
15. The entire law about the right of the mother to the custody of her minor children, a son and a daughter, where the parties were an estranged Muslim couple, was considered by the Bombay High Court in Mohammad Shafi vs. Shamin Banoo, AIR 1979 Bom 156. It must be remarked that the facts of the case in Mohammad Shafi show that it was truly a custody dispute between the estranged parents of the two minors, where the application by the mother for custody appears to be one made under Section 25 of the Guardians and Wards Act. She had asked for the custody of her minor son, aged four years and a minor daughter, aged two and a half years, at the time of commencement of action. The facts of the case founded on pleadings of parties can best be understood by a reference to their statement in paragraph nos.2 and 3 of the report, that read:
"2. An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamim Banu against her husband Mohomed Shafi under sections 7 and 25 of the Guardian and Wards Act. She alleged therein that she was married to Mohomed Shafi and bore three children from respondent Mohomed Shafi, namely Mohomed Raees whose age was given as 4 years, Waheeda Begum, whose age was given as 2½ years and Farooque who was aged 1½ years at the time when this application was presented. She then stated that she was given very cruel treatment by the respondent who wanted to marry another woman and drove her out and at that time snatched Mohomed Raees and Waheeda Begum from her. Farooque was then only a month old and was allowed to be retained with her. She, therefore, filed this application for custody or return of the custody of the minors to herself, namely, Mohomed Raees and Waheeda Begum and for appointment of herself as the guardian under section 7. She also stated in the application that the respondent has married Sajjidabegum after the petitioner was driven away and that the respondent and his newly married wife are living together along with the minors who were, according to her, treated cruelly by the wife, step-mother and the respondent.
3. The respondent filed his written statement to this application and denied that the petitioner was driven away and was treated cruelly. He claimed that he was the natural father of the minor children whose ages were not disputed and was, therefore, entitled to their custody. He contended that the petitioner was divorced by him on 7th November, 1975 and that she was a woman of suspicious character and had connections with others and used to leave the house of the respondent at night in the company of somebody secretly. That she has left him with a view to carry on her affair with her boy friend. In these circumstances and also under the personal law to which the parties belong, namely, Mahomedan Law, he claimed that he was entitled to the custody of the children and was the proper and legal guardian of the minors. It is his claim that the application is motivated by the proceedings which she has commenced under section 125 of the Code of Criminal Procedure against him. He did not deny that he has married a third time, but denied that either the minors were given cruel treatment by him or his new wife. Lastly, he contended that the minors are being properly looked after and that the petitioner who is staying with her father has no means of income as also her parents which could be sufficient to bring up these minor children. That they would be practically starving whereas the respondent has sufficient earnings of his own. That there are other members in his family who come to him and look after his children by the petitioner."
22. In the present case, the Court finds that the child is still of tender years. The child is aged about six years who needs just not the financial means of his father but also the loving care and guidance of his mother. The father is, of course, there but the mother is required to be around the child, at close quarters. It is certainly more important to a minor's welfare that he receives the mother's love and guidance, as also her close supervision, that may groom him into a young adult and a good citizen. Away from the mother, in the father's company, the likelihood of delinquency is higher as the father is away to earn his livelihood.
23. So far as the financial needs of the minor are concerned, it is the father's responsibility to provide for him and the law would take care that the father discharges that responsibility towards the minor, though the minor stays with the mother. There is nothing pleaded or said on behalf of the father to show that the mother is disentitled to the minor's custody on the basis of any principle recognized by law. It has also not been shown that the minor's welfare would be better secured for some demonstrable cause with the father, while the father stays estranged with the mother.
24. In these circumstances, the principles of law clearly work in a way that the conclusion has to go in favour of a better welfare for the minor in the hands of his mother. This Court must observe here that during the interaction with the minor whatever words of choice he expressed for the father were no more than clinging emotions, because he is staying with his father for some time now. There is nothing expressed in the minor's words that may persuade the Court to decide against the mother, or in the father's favour. The mother's insistence to hold the custody of the minor is more than a mere wish.
25. In the entirety of the circumstances of the present case, this Court is satisfied that prima facie the welfare of the minor would be better secured in the mother's hands. This Court makes it clear that the conclusions recorded above are tentative in nature. If the father still thinks that on a more meticulous analysis of evidence that he can adduce, it may be shown that welfare of the minor is better secured in his hands than the mothers, it would be open to respondent no.4, the minor's father, to institute proceedings under the Guardian and Wards Act, 1890 before the court of competent jurisdiction to establish his right to custody. If that course is adopted, nothing said here will be read for or against either of the parties and the concerned Court will decide in accordance with law on basis of the evidence adduced.
26. In the result, this habeas corpus writ petition succeeds and is allowed. The rule nisi is made absolute. Let custody of the minor Asif, who is present in Court, be handed over to the mother Rinku Rukshar forthwith. She is also present in Court. The father, Arshad will have visitation rights once a month on the second Tuesday of every month between 10:00 a.m. to 01:00 p.m. The mother Rinku Rukshar and all her family members with whom she stays, will extend due courtesy and facilitate the minor's meeting with his father, Arshad.
27. Let this order be communicated to the Senior Superintendent of Police, Prayagraj by the Joint Registrar (Compliance).
Order Date :- 08.10.2020 Deepak/Neeraj