Allahabad High Court
Garv Mishra (Minor) Thru. His Father ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 1 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2658
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 30 Case :- HABEAS CORPUS No. - 24874 of 2019 Petitioner :- Garv Mishra (Minor) Thru. His Father Anurag Mishra Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. & Ors. Counsel for Petitioner :- Upendra Kumar,Samarth Saxena Counsel for Respondent :- G.A.,Anil Kumar Mishra,Vivek Kumar Verma Hon'ble Manish Mathur,J.
1. Heard Mr. Samarth Saxena, learned counsel for petitioner, learned Additional Government Advocate for opposite parties 1 to 3 and Mr. Anil Kumar Mishra, learned counsel for opposite parties 4 to 7.
2. This petition for a writ in the nature of Habeas Corpus has been filed for a direction to opposite parties concerned to produce Garv Mishra, minor son of petitioner and for his custody to be handed over to petitioner.
3. Learned counsel for petitioner submits that the detenu Garv Mishra is only one and half years old with his date of birth being 05.09.2018. It is submitted that opposite parties 4 and 5 are the parents of wife of petitioner who passed away on 10.08.2019. Opposite parties 6 & 7 are her brothers with opposite party no.6 being married and having his own family and opposite party no.7 being unmarried as yet.
4. It is noticed from the order sheet that the issue pertaining to maintainability of a writ petition for habeas corpus seeking custody of child had been framed earlier. With regard to the issue of maintainability of a petition for habeas corpurs seeking custody of a minor child has been dealt with by Hon'ble the Supreme Court in Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 SCC 42.
5. In the aforesaid case, the issue was with regard to maintainability of a writ of habeas corpus for custody of minor when efficacious alternative remedy is available under the Hindu Minority & Guardianship Act, 1956 (hereinafter referred to as the Act of 1956). Hon'ble the Supreme Court in the aforesaid case thereafter has held that in child custody matters, a writ in the nature of habeas corpus is maintainable where it is proved that detention of minor child by a parent or others was illegal and without authority of law. It has subsequently also been held that the welfare of the child is of paramount interest and where the court is of the view that a detailed enquiry is required, the court would decline to exercise the extra-ordinary jurisdiction and direct the parties to approach Civil Court. It has been further held that it is only in exceptional cases, that rights of the parties to the custody of minor will be determined in a petition for habeas corpus. Relevant paragraphs of the aforesaid decision are as follows:-
"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."
"21. In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondent father is a natural guardian of the minor child and is having the legal right to claim the custody of the child. The entitlement of father to the custody of child is not disputed and the child being a minor aged 1½ years cannot express its intelligent preferences. Hence, in our considered view, in the facts and circumstances of this case, the father, being the natural guardian, was justified in invoking the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India."
6. Following the aforesaid judgment, a coordinate Bench of this Court in its judgment and order dated 17.09.2020 rendered in Reetu & another v. State of U.P. and others, Habeas Corpus Writ Petition No.406 of 2020 has also held that a writ of habeas corpus can be issued in matters relating to custody of a child where the child is in custody of a relative or a person, who is not the lawful guardian, though not an utter stranger. The relevant paragraph is as follows:-
"13. A writ of habeas corpus can certainly be issued in matters relating to custody of a child where the child is in custody of a relative or a person, who is not the lawful guardian, though not an utter stranger. A kinsman or a relative of the child, who holds the child in custody back from the lawful guardian, would entitle the lawful guardian to seek restoration of custody through a writ of habeas corpus. The question, whether the person who applies for the writ is the lawful guardian or not, is generally to be determined with reference to the personal law, applicable to parties. However so, the Court may also inquire into for the purpose of determining the legality of the custody, from which liberation is sought, vis-a-vis the right of the person asking for the writ, the question of welfare of the minor. "
7. Upon applicability of the aforesaid judgments in the present case, it is admitted between the parties that petitioner is the father of minor Garv Mishra. It is also undisputed that the minor in question is in custody of opposite parties 4 to 7 since the time when mother of the child was undergoing treatment and subsequently passed away.
8. In view of aforesaid judgments, it is apparent that writ petition in the nature of habeas corpus would be maintainable with regard to custody of child who is in the custody of a person who is not a natural lawful guardian but is also not an utter stranger, as in the present case, while opposite parties 4 to 7 are related to the minor through mother. Since it is admitted between the parties that petitioner is father of the minor child, naturally in terms of the Act of 1956, father is the natural guardian of the minor.
9. In view of aforesaid facts, and upon applicability of aforesaid judgments, it is apparent that writ petition for habeas corpus in the present case seeking custody of the minor child is maintainable.
10. In the aforesaid judgments, it has also been held that welfare of the minor would be of paramount consideration even if writ for habeas corpus is maintainable. In the present case, learned counsel for petitioner has drawn attention to his financial and social standing with the submission that the answering opposite parties do not have the financial capability to look after the minor child and it would be in the interest of minor in case custody is given to petitioner who admittedly has the financial wherewithal to take care of the interest of the minor.
11. Learned counsel appearing on behalf of opposite parties 4 to 7 on the other hand has contended that petitioner did not take care of his wife when she was diagnosed with cancer and has in fact left her at the mercy of her parents and brothers. It is submitted that due to ill-treatment by petitioner of his wife, a first information report was also lodged against him under Section 498-A, 323, 504 I.P.C. and Section 3/4 Dowry Prohibition Act, 1961 and, therefore, interest of the minor would not be served in case custody is handed over to petitioner. Learned counsel has also placed reliance on a Division Bench decision of this Court in the case of Ram Naik Misra and another v.
Km. Gauri and others rendered in First Appeal No.53 of 2018 in which considering the paramount consideration of welfare and interest of the minor child, the Court declined to provide custody to father of the minor.
12. In paragraph 4 of the writ petition, it has been stated that petitioner belongs to a respected family and is running business of a general store in his neighbourhood. Father of petitioner has superannuated from Forest Department and is getting his pension while his mother is a house wife. It has also been stated that petitioner resides with his parents in own house in Lakhimpur Kheri. The aforesaid contents of writ petition with regard to financial and social standing of petitioner have not been denied by the answering opposite parties in their counter affidavit but it has been merely stated that conduct and behaviour of father of the child and his family was never been good towards mother of the child and petitioner has not cared for the minor. In paragraph 19 of the counter affidavit, it has also been stated that a petition under Section 125 Cr.P.C. has been filed by the maternal grand father of the minor (arrayed as opposite party no.4 to the present petition) before the Principal Judge, Family Court, Lakhimpur Kheri, registered as Case No.834 of 2019.
13. A perusal of the petition under Section 125 Cr.P.C. indicates that in paragraph 5, it has been stated that the maternal grand father is not in a financial position to take care of the minor. In paragraph 6, it has been stated that father of the minor, i.e. the petitioner herein has the financial wherewithal to take care of the minor. It has also been stated that petitioner herein is the owner of a general store and does not earn less than Rs.50,000/- per month and is, therefore, in a better financial position to take care of the minor.
14. Considering the fact that the opposite parties have not denied the good financial condition of petitioner while at the same time indicating their precarious financial position, it is evident from the material on record that petitioner being not only the natural guardian of the minor in terms of Section 6 of the Act of 1956 would also be in a better position to take care of the minor rather than the answering opposite parties.
15. With regard to said submission, it is apparent from a perusal of the first information report brought on record as Annexure 6 to the petition that the same has been lodged at the instance of opposite party no.4 (who is father in law) and not the wife. The treatment prescriptions on record annexed to the petition indicates treatment of wife of petitioner, Arti Misra having taken place at the instance of the petitioner. From a perusal of the documents on record, it is apparent that the dispute with regard to custody of minor had cropped up after demise of Arti Misra, between the petitioner and his in-laws, which has also resulted in acrimonious litigation.
16. From the aforesaid, it is evident that the opposite parties have not denied the fact that petitioner is the father and, thus, the natural guardian of the minor. Similarly, his better financial condition vis-a-vis opposite parties 4 to 7 has also been admitted by the opposite parties in their counter affidavit, which is also evident from the averments made in the petition under Section 125 Cr.P.C. As such, in the considered opinion of this Court, since petitioner is admittedly the natural guardian of the minor and is in a better financial condition than opposite parties 4 to 6, he would, thus, be better placed to look after the interest and welfare of the minor, particularly in the absence of any pleading by opposite party that petitioner has misbehaved with the minor.
17. So far as the judgment relied upon by learned counsel for answering opposite parties is concerned, a perusal of the same in Ram Naik Misra(supra) indicates that the court refused to grant custody of minor children to the father on the ground that the minors therein who were aged about 15 years and 13 years categorically stated before the court that they did not want to live with their father. Even in the said judgment, it has been held that it is the settled position of law that the father is the natural guardian of minor children and, therefore, he has preferential rights to custody of a minor. As is evident, the facts and circumstances of aforesaid case are clearly distinguishable and are not applicable in the present case.
18. In view of aforesaid, this Court is of the considered opinion that petitioner being father of the minor and natural guardian in terms of Section 6 of the Act of 1956 would be entitled to custody of the minor particularly since it is admitted that he has a better financial condition to look after the minor himself.
19. In view of aforesaid, the petition for habeas corpus succeeds and is allowed. Consequently, it is ordered that the minor be set at liberty by opposite parties 4 to 7 who shall deliver custody of the minor, Garv Mishra to petitioner Anurag Mishra within four weeks from the date of this judgment. In case custody of the minor is not delivered by opposite parties 4 to 7 or anyone claiming through them, the learned Chief Judicial Magistrate, Lakhimpur Kheri shall cause the minor to be delivered to petitioner Anurag Mishra by employment of necessary force through the Superintendent of Police, Lakhimpur Kheri, who is directed to act in the aid of learned Chief Judicial Magistrate, Lakhimpur Kheri in the matter. It is further directed that on the first Sunday of every month, between 10.00 a.m. to 2.00 p.m., petitioner Anurag Mishra shall permit opposite parties 4 to 7 to meet the minor Garv Mishra at his residence and during each such visit, petitioner Anurag Mishra shall extend all due courtesies to opposite parties 4 to 7 and will facilitate the meeting between them.
20. Let this order be communicated forthwith by the Registrar to learned District Judge, Lakhimpur Kheri, learned Chief Judicial Magistrate, Lakhimpur Kheri and the Superintendent of Police, Lakhimpur Kheri for consequential action.
Order Date :- 1.9.2021 kvg/-