Allahabad High Court
Km. Advika Tandon Throu.Her Father Amit ... vs State Of U.P.Throu.Prin.Secy.(Home) ... on 23 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 641
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 16 A.F.R. Case :- HABEAS CORPUS No. - 13183 of 2020 Petitioner :- Km. Advika Tandon Throu.Her Father Amit Tandon Respondent :- State Of U.P.Throu.Prin.Secy.(Home) Lucknow And Ors. Counsel for Petitioner :- Anurag Tilhari,Kapil Misra,Pushpila Bisht Counsel for Respondent :- G.A.,Nishant Shukla Hon'ble Dinesh Kumar Singh,J.
(i). Significance of Marriage as Social Institution:-
1. Marriage is an institution that admits man and woman to family life. It is a stable relationship in which a man and a woman are socially permitted to live together without losing their status in the community. Marriage is not merely concerned with the couple; rather it affects the whole society and future generations. The responsibilities it entrusts a couple with are thus both heavy and delicate. In Hindu view, marriage is not a concession to human weakness, but a means for spiritual growth. Man and woman are soul mates who, through the institution of marriage, can direct the energy associated with their individual instincts and passion into the progress of their souls. The institution of marriage is the central draft of all the forms of human society which are a part of civilization. Marriage is the deepest as well as the most complex of all human relations because it is a difficult task for two people to lead their life together when they have their independent thinking and way of living. In Indian life, role expectations are highly specific and institutional in marriage, thus a woman's role in family has remained multifarious. Marriage and family, as a set of institutions, also encompass formal and informal, objective and subjective aspects. Family is a fundamental building block of all human civilization. Marriage is the glue that holds it together. The health of culture, its citizens and their children is ultimately linked to the success of marriage.
2. Strong stable marriages are the best way to ensure that children become responsible members of society. Marriage improves the health and longevity of men and women; gives them access to more active and satisfactory married life, increases wealth and assets, boosts children's chances of success and enhances men's performance at work and their earning. When one gets rid of the institution altogether there are many harmful consequences. It is not just the marrying of two people together, but its success or failure equally affects society. When a family falls apart, it leaves a negative impact on the community because the children of such a family are more likely to be delinquents. On the contrary when a family is strong, the community is positively affected. Every child that goes out into the world from a stable happy home is a blessing to the community, and is able to make a contribution, rather than being a drain on the community.
3. Creation of male and female is not an accidental fact or afterthought but the very apex of God's creative activity. Even more it is the sexual pairing of male and female activity that is the pinnacle of the creative process. To deny the distinction of two sexes is to deny what is integral to God's ultimate creative act.
4. The inherent characteristics of marriage are intimacy, companionship, procreation and parenting. Marriage is not simply a celebration or expression of love. It is the world's most basic and universal institution - the foundation on which families are created and society reproduces itself. Society suffers when procreation and parenting is separated from the definition of marriage. Marriage is the most diverse relationship known to humanity because it unites the two halves of humanity - male and female. It is not a civil right; it is an institution given specific cultural and legal recognition because of the unique benefits it confers on adults, children and society at large.
5. Islam considers marriage as both a physical and spiritual bond that endures into the afterlife, also recommends marriage high among other things, it helps in the pursuit of spiritual perfection. The Bahai Faith sees marriage as, a foundation of the structure of society.
6. Buddhism does not encourage or discourage marriage, although it does teach how one might live a happily married life.
7. Hinduism sees marriage as a sacred duty that entails both religious and social obligations. Old Hindu literature in Sanskrit gives many different types of marriages and their categorization ranging from Gandharva Vivaha to normal marriages, to Rakshasa Vivaha.
Marriage was well established in the Vedic age. The history of ancient India may be said to commence with the period during which the Rig Veda was composed. Vedic literature is the prime source of all cultural manifestations in India. Marriage was considered as a social and religious institution and a necessity for two individuals of opposite sex who had attained full physical development. Woman as a wife is denoted by the words Jaya, Jani, Patni. Jaya: shares the husband's affection, Jani: the mother of the children, Patni: the partner in the observance and performance of religious sacrifices. It is said that man is only one half and he is not complete till he is united with a wife. Hindu mythology has the concept of Ardhnarishwara (half female and half male combination to make the perfect whole).
8. A woman's existence merged with that of a man through the performance of a ceremony and hence it was imperative for the couple to carry out their promises made before supreme witness: Agni. In the Brahadaranyaka Upanishad, the ideal picture of a wife and the other half of the husband have been beautifully delineated by a very telling simile of the half of a shell.
9. In Hindu society marriage is supposed to be a social obligation, for it is believed that marriage is not only a means of continuing the family but also a way of repaying one's debt to the ancestors. It is a life-long commitment of wife and husband and is the strongest social bond that takes place between a man and a woman. The norms set up for regulating the marital behavior in Hindu society is closely connected with religious duties and hence the impact of religious duties has more effect than any other element. Grahastha Ashram, the second of the four stages of life, begins when a man and a woman marry and start a house hold.
10. The family disintegrates when the marital relations break, as in the case of divorce. Historically it has been transformed from a more or less self-contained unit into a definite and limited organization of minimum size, consisting primarily of the original contracting parties. It is a unit of society, society to state and state to nation.
11. A person is socialized in the family. The child's first school is his home and family, which conditions his attitude and behavior towards the elders in society, and which imparts practical education to the child concerning the customs in society, conduct, and other important elements of culture, preservation of health, love, sympathy, and cooperation. It is in the family that the child acquires important qualities as sincerity, sympathy, self-submission, responsibility and character which help the child in becoming an important and responsible member of society. In the family the child gets full freedom of expressing his ideas and views. Psychologists have incontestably proved that the proper development of child is impossible without a good environment in the family.
12. Marriage is a legally, socially, and religiously recognized interpersonal relationship, usually intimate and sexual, and often created as a contract. Controversies apart, marriages are still made in heaven for the average Hindu couple. It is a lifelong commitment and is the strongest social bond between a man and a woman. The human society developed and redefined the institution of marriage over a long period of time. The human instinct such as love, affection, joy, jealousy, hate, fear, and pride has not changed over millenniums. People still need stable family environment and friends to share life experiences. No doubt with the changing circumstances, the significance of marriage is decreasing. It is considered as something secondary, not necessary. To make a family now the new generation is adopting children from orphanages but, the fact is that for giving the child love, affection, attachment, warmth of relations a family is required.
13. Previously, a family crisis of the nature of a maladjustment between husband and wife was overcome by the constraining influence of the elders, kinsmen and social mores and traditions and the family was saved from disintegration but, with the existing loss of respect for the power of these modes of social control husband and wife are deprived of guide or mediator and in a fit of temper or even vengeance they destroy delicately loving nurtured sapling which is the family.
14. In the modern time, the institution of family is undergoing rapid changes due to which the structure of the family is changing. The tie of marriage is the basis of the family. Weakening of marriage ties results in weakening of family ties. Now-a-days marriage is not a religious ritual but merely a social contract which can easily be broken on the grounds of boredom, or some kind of misunderstanding. Consequently, there are an increasing number of divorces. A major cause of the weakening of marriage ties is the failure of men to adapt to new circumstances created by the education of women.
(ii). Impact of Family Breakdown on Children's Well-Being
15. Sociological researches have shown that a child grows up in an intact, two-parent family with both biological parents present do better on a wide range of outcomes than children who grow up in a single-parent family. Single parenthood is not the only, nor even the most important, cause of the higher rates of school dropout, teenage pregnancy, juvenile delinquency, or other negative outcomes we see; but it does contribute independently to these problems. Neither does single parenthood guarantee that children will not succeed; many, if not most, children who grow up in a single-parent household do succeed.
16. Empirical studies show that divorce has been shown to diminish a child's future competence in all areas of life, including family relationships, education, emotional well-being, and future earning power. Children are at increased risk of adverse outcomes following family breakdown and that negative outcomes can persist into adulthood.
17. Evidence also show that relatively few children and adolescents experience enduring problems, and some children can actually benefit when it brings to an end a ''harmful' family situation, for example where there are high levels of parental conflict, including violence. Long-term effects in adults, who as children have experienced family breakdown, include problems with mental health and well-being, alcohol use, lower educational attainment and problems with relationships.
(iii). Psychological and Emotional Aspects of Divorce
18. A child's continued involvement with both of his or her parents allows for realistic and better balanced future relationships. Children learn how to be in relationship by their relationship with their parents. If they are secure in their relationship with their parents, chances are they will adapt well to various time-sharing schedules and experience security and fulfillment in their intimate relationships in adulthood. One important factor which contributes to the quality and quantity of the involvement of a father in a child's life is mother's attitude toward the child's relationship with father. When fathers leave the marriage and withdraw from their parenting role as well, they report conflicts with the mother as the major reason.
19. The impact of father or mother loss is not likely to be diminished by the introduction of step-parents. No one can replace Mom or Dad who bring the child in this world. And, no one can take away the pain that a child feels when a parent decides to withdraw from his/her life.
(iv) Facts of this case :-
20. This petition under Article 226/227 of the Constitution of India has been filed with following reliefs:-
"(i) Issue a writ, direction, or order in the nature of Habeas Corpus to produce the detenue before the Hon'ble Court by the Respondents along with full disclosure of reports of all Corona-Tests conducted on the detenue and all Respondents in her close proximity after the Corona-death on 6-Jul-2020 fol lowing multiple positive cases in Respondent No.4's family.
(ii) Issue a writ, direction or order in the nature of Habeas Corpus to the Respondents (Opposite Parties) to set the detenue at liberty forthwith and to not interfere with the personal liberty of the detenue/petitioner.
(iii) It is further prayed, Hon'ble Court may kindly be pleased to seek testimony of the petitioner in a free and fair environment to corroborate her true wishes, and issue direction to the Respondents to immediately hand over interim custody of minor daughter Advika to her father so that she may continue her quality education at Pune while availing the safety, comforts and intellectually stimulating growth environment of her Pune home,
(iv) It is further prayed, the Hon'ble Court may kindly be pleased to issue direction to the Respondent no. 4 to co operate wholeheartedly with petitioner's father to permit and fa cilitate petitioner's education at her renowned Pune school with immediate effect.
(v) It is further prayed, the Hon'ble Court may kindly be please to issue direction to the Respondent nos. 4, 5, 6, 7 & 8 to not change or attempt to change the physical location and/ or school of the petitioner without the prior knowledge and writ ten consent of her father at any time till she turns 18 years old.
(vi) It is further prayed, Hon'ble Court may kindly be pleased to issue direction to the respondents no. 4, 5, 6, 7 and 8 to immediately cooperate and allow un-constrained, exclusive physical and telephonic access at-will between the petitioner and petitioner's father with prior written intimation to Respondent No. 4 as per below:
a) For physical access: A minimum 2-day prior written intimation on email and whatsapp of Respondent No. 4
b) For telephonic access: A minimum 6-hour prior writ ten intimation via email / whatsapp to Respondent No. 4
(vii) It is further prayed, the Hon'ble Court may kindly be pleased to issue direction to the Respondent no. 4 to allow and let the minor daughter spend 100% of her school's winter vacation, at least 60% of her school's summer vacation and at least 50% of all long-weekends in a calendar year exclusively with petitioner's father. If the petitioner and Respondent No. 4 are mutually willing to spend the balance remaining vacation time exclusively together, then Respondent No. 4 must:-
a) Bear the entire boarding, lodging and travel expenses of the petitioner in the event of availing such balance vacation time exclusively and
b) Arrange and comply with the pick-up / drop-off of the petitioner from the society gate of the petitioner's father's residence on such occasions and
c) Permit at least 15 minutes telephonic conversation daily between the petitioner and petitioner's father to enquire and validate the petitioner's well-being while the petitioner is with Respondent No.4.
(viii) It is further prayed, the Hon'ble Court may kindly be please to issue direction to the Respondent no. 4 that all times while the petitioner is in the exclusive company of Respondent no. 4 (i.e. at times when the petitioner's father is not physically present simultaneously with the petitioner), in the event of either any out-station travel by Respondent No. 4 or any other similar unavailability that compromises Respondent No. 4's personal care and supervision of petitioner, Respondent No. 4 should arrange and ensure in advance, completely at her own expense, effort and planning, for the petitioner (minor daughter) to be in the custody and care of petitioner's father (Amit Tandon) for the duration of Respondent No. 4's such outage or unavailability i.e. to mean that Respondent No. 4 should not entrust the petitioner's care with any other person besides the petitioner's father in the event of her own absence while enjoying her exclusive company.
(ix) It is further prayed, the Hon'ble Court may kindly be please to issue direction to the Respondent no. 4 to immediately handover all the originals of petitioner's personal/KYC records (Passport, Aadhaar, Birth Certificate etc), school records/results and other personal belongings of the petitioner to the petitioner's father."
21. The facts of the present case are that from the wedlock of Amit Tandon, father of the petitioner, and Ms. Parul Tandon (the date of marriage 27.11.2004), the detenue was born on 13.08.2011. At present she is more than nine years of age. The present habeas corpus petition has been filed through father Amit Tandon with prayer to produce the corpus/detenue Km. Advika Tandon, who is allegedly in illegal custody of her mother, maternal grand-father, maternal grand-mother, maternal uncle/mama and maternal aunt/masi. The father, Amit Tandon is an entrepreneur, but before that he was pursuing career in Information Technology from 1998 to 2009. It is alleged that on 26.08.2019 the mother of the detenue picked her directly from the school, St. Mary School, Pune and brought her to Lucknow by flight. She dropped message to Amit Tandon "boarded for Lucknow with Advika".
22. It is alleged that the respondent no.4 is not fit to have the custody of the detenue as she suffers from Poly Cystic Ovary Syndrome (PCOS). This ailment leads to low energy levels, frequent fatigue and mood swings which are not conducive to child attention and growth whereas the father, Amit Tandon is quite fit and has no ongoing health ailments/medication. It is also stated that the detenue shares an extremely close bond with her father and grand mother who have been playing pivotal, predominant and significant role in her grooming, nurturing since childhood, whereas the respondent no.4, the mother, has been focusing primarily on promoting her career. It has been further stated in the writ petition that the detenue has better place in Pune living with her father and grand-mother. She has an independent room in her home in Pune, which situates at prime location along with all paraphernalia. St. Mary's School, Pune where the detenue was studying in Class-III is an eminent school, 155 years old, and top ranked Institution in the country. It has further been stated that the respondent no.4 made frequent extended professional trips while leaving the detenue behind in a fragile state without proper schooling. Schools in Lucknow are not match to St. Mary School, Pune and now detenue is studying in Seth M.R. Jaipuria School. It has further been stated that the detenue's well being and safety are likely to be severely compromised in Lucknow whereas in Pune 24x7 strongly guarded CCTV cameras, gated society of 72 flats, protected park and game playing area at his residence which is in prime location of Kalyani Nagar, Pune whereas the respondent no.4 is living with the detenue at an relatively under developed and unsafe area at the outskirts of Lucknow. It is further stated that maternal grand father/Nana and maternal uncle/Mama have severe drinking problem which has led to the separate living of wife of respondent no.7 along with their 3 years old son since March 2019. It has been further stated that a mysterious death of another sister of respondent no.4 took place at the tender age of 18 years in the same household. Another sister of respondent no.4, i.e. respondent no.8 is employed in Mumbai and she is unmarried and aged about 38 years.
23. Respondent no.4 suddenly departed from matrimonial home on 26.08.2019 primarily on account of differences that the father of detenue, Amit Tandon, over letting his 71 years old mother move to stay with him permanently. The permanent home of the family of Amit Tandon is in Varanasi and it was acquired in December 2018 due to acquisition of Kashi Vishwanath Mandir Corridor and, then the mother of Amit Tandon moved with him to Pune. Respondent no.4 was unhappy by the mother of Amit Tandon moving and living permanently with them and she threatened to go back to Lucknow and live with her parents along with daughter, if the mother would continue to live in the house. It is further stated that after respondent no.4 departed with detenue from Pune to Lucknow, the father Amit Tandon, made frequent trips to Lucknow to reason her to be back in the matrimonial home, but despite his sincere efforts to reconcile the matter during these visits, the respondent no.4 was rigid on her instance that only if the petitioner either arrange for a separate residence of his mother in Pune or send her away only then the respondent no.4 and detenue would return to Pune. It is, therefore, submitted that considering the infrastructure, the house hold comfort, environment and schooling as well as petitioner's being fit physically and mentally, Lucknow would not be conducive place for the detenue to live in; Pune as better fitted for her, therefore, the detenue should be released from the custody of respondent no.4 to go with her father.
24. On the other hand, respondent no.4, the mother of detnue, has submitted that there is a matrimonial dispute between the parties and, the detenue is living with her mother who has been forced to live with her parents. Due to the conduct of the father of detenue, the detenue is residing with her mother and maternal parents' house and the same cannot be termed as illegal by any stretch of imagination. It has further been stated that the writ petition is not maintainable and is liable to be dismissed on the ground on non-maintainability. It is further submitted that father of detenue has an efficacious remedy to file a petition before the appropriate court for redressal of his grievance, if any. It has further been stated that the mother had compromised with her career and left job as a dutiful wife and mother of the detenue. It has been stated that the ruses in ovaries developed during the course of married life of respondent no.4. The father of detenue has treated her with grave cruelty and never bother to take care of her. He has always been sarcastic, inconsiderate towards her. It has further been stated that the father of detenue has forced the respondent no.4 to part with her savings from salary income on the pretest of running household. The respondent no.4 used to transfer the money in the account of father of detenue pro-actively and she had spent around Rs.1 crore from her salary.
25. It has further been stated that she has decent medical condition, enjoying good health, whereas the father of the detenue has extreme anger issues, severe allergies and chronic OCD problem. He has unhealthy relation with almost every family member and is incapable of contributing to a young girl's growth and development. The mother of the father can barely fetch for herself. It has further been submitted that it would not be in the paramount interest of the detenue to live with such a family. It has also been submitted that behaviour of the petitioner has been in fact causing a lot of mental trauma and unnecessarily mental and emotional pressure on the detenue at her tender age. He has created such conditions that it became impossible for respondent no.4 or the detenue to live with him any longer.
26. It has been stated that the detenue was initially admitted in Seth MR Jaipuria School, Lucknow in Class-III, however, due to threats advanced by the father, the said Institution has shown its inability to continue the detenue to study in the Institution. Therefore, she was admitted in Modern Vidyawati School which is also a very reputed Institution in Lucknow. It has been further submitted that efforts are being made for the detenue to get her admission in La Martiniere College or Loreto Girls School and in all likelihood she would get admission in some reputed school. It has further been submitted that the detenue being female child and, no female family member is available in the family of father of detenue, it is not in the interest of the child to be left in the custody of the father.
(v) Analysis :-
27. While deciding the dispute of such a nature, the Court has to see the paramount interest of the child.
28. I have heard learned counsel for the parties and perused the pleadings and record of the petition.
29. This Court vide order dated 29.01.2020 directed the father of the detenue, respondent no.4 and detenue to be present in Court on 24.02.2021.
30. On 24.02.2021, the Court interacted with the father and mother of detenue separately and in their absence with the detenue. After understanding the respective stands and keeping in view the welfare of the child, the Court was of the view that the custody of the detenue cannot be given to the father at this stage. The Court while referring the matter to the Mediation Centre had passed the following order :-
"1. In pursuance of the order dated 29.01.2021, father of the detenue, Mr. Amit Tandon, detenue, Km. Advika Tandon and Ms. Parul Tandon, wife of Mr. Amit Tandon are present in the Court.
2. The court has spoken to Mr. Amit Tandon and Ms. Parul Tandon and Km. Advika Tandon, in absence of her parents.
3. The Court is of the view that at this stage, custody of Ms. Advika Tandon cannot be given to the father. It also appears that she is happily living with her mother in Lucknow but she would also like to have love and affection of her father. Km. Advika Tandon has informed the Court that she speaks with her father over phone and twice a week on Skype.
4. Ms.Parul Tandon further states that the father of the child can visit her at any time with prior notice and he can make telephone call to her for short duration anyday. She will never object regarding visiting the father to meet the child or having conversation over telephone or Skype as the case may be. It is also broadly agreed that the child would like to visit her father during long vacations and stay with her grand mother. But, permanently at this stage, she would like to live with her mother.
5. Keeping broad consensus between the parties, in order to formalize the terms of settlement between the parties with respect to custody and visitation in respect of Km. Advika Tandon, it would be appropriate to refer this matter before Mediation and Conciliation Centre of this Court.
6. Both the parties have agreed to be present before the Mediation and Conciliation Centre of this Court on 25.02.2021 at 2:30 P.M. Ms. Parul Tandon is directed to bring Km. Advika Tandon before the Mediation Centre.
7. Learned mediator is requested to make his/her all out efforts to get the matter settled between the parties and reduce the terms of settlement in writing and place it before the Court for passing appropriate order.
8. List this case on 04.03.2021 along with report of Mediation Centre.
9. Today and tomorrow, the father can take the child to treat her anywhere of her choice."
31. However, the mediation proceedings failed and the case came to be listed before this Court again. The Court again tried to settle the matter between the parties amicably keeping in view the paramount interest of the child. However, the Court could not succeed in settling the matter amicably between the parties and, therefore, it proceeded to hear the parties so that the petition can be disposed off. It appears from the respective stands of the parties that the marriage between them has been irretrievably broken down. More than anybody else it is the detenue who is suffering at this stage. She is suffering from mental and emotional trauma and is in a state of confusion because of quarreling of her parents over her custody. In matter like this the Court has to keep in mind the paramount interest of the child while deciding the question of custody of the child.
32. It is no longer res integra that a petition for habeas corpus is maintainable if the child is in the custody of another parent. It is the settled law that the Court can move in its extraordinary jurisdiction to secure the best interest of the child.
33. The Hon'ble Supreme Court in the cases of Elizabeth Dinshaw Vs. Arvand M. Dinshaw, (1987) 1 SCC 42 and Lahari Sakhamuri Vs. Sobhan Kodali (2019) 7 SCC 311 among others has held that writ petitions in cases like this are maintainable.
34. In the case of Nithya Anand Raghavan Vs. State (NCT of Delhi), (2017) 8 SCC 454, Hon'ble Supreme Court in para nos.46 to 47 has held as under :-
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.
35. Further in the case of Kanika Goel Vs. State (NCT of Delhi), (2018) 9 SCC 578, Apex Court in paragraph 34 has held as under :-
34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful.
36. Hon'ble Supreme Court in the case of Nithya Anand Vs. State (NCT of Delhi) (supra) has held that in a habeas corpus petition, the Court has to examine at the threshold whether the minor is in lawful or unlawful custody of another person. The custody of the minor with the natural guardian being her mother cannot be said to be unlawful. 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. It has further been held that instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.
37. In Yashita Sahu Vs State of Rajasthan 2013 SCC 67 it has been reiterated that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
In paragraph 20 to 25 in respect of the paramount consideration being welfare of the child, Hon'ble Supreme Court in the said judgement has held as under :-
Welfare of the child - the paramount consideration
20. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
21. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.
22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.
23. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
24. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.
25. In addition to "visitation rights","contact rights" are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, email or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.
(vi) Conclusion :-
38. The court exercises "parens patriae" jurisdiction while deciding the custody of a minor child. The Court can on its own fix the terms and conditions of custody and visitation rights of another parent.
39. The Supreme Court in the case of Nilanjan Bhattacharya Vs. State of Karnataka, Civil Appeal No.3284 of 2020 has held that the Court has to fix the terms and conditions of custody and visitation rights considering the welfare of the child.
40. This Court in Habeas Corpus Petition No.450 of 2020 (Master Advik Sharma Vs. State of U.P.) has held that there is a strong presumption about a child's welfare to be better secured in the mother's hand, which can be dispelled only by cogent and glaring evidence about the mother's lack of fitness to discharge her maternal obligations.
Para 49 of the said judgment which is relevant is extracted hereinunder :-
"49. In the opinion of this Court, there is a strong presumption about a child's welfare to be better secured in the mother's hand, which can be dispelled only by cogent and glaring evidence about the mother's lack of fitness to discharge her maternal obligations, as already remarked. There is no such circumstance or evidence brought to this Court's notice that may render Preeti unfit to take care of her minor son. This Court is fortified in the view that we take by the decision of the Supreme Court in Roxann Sharma vs. Arun Sharma, (2015) 8 SCC 318, where it has been held:
"13. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years."
41. In the present case, the mother of detenue is fully qualified having MBA and gainfully employed. Except from minor health issues, she does not suffer from any major health problem. The court cannot lose sight of the fact that the detenue is minor girl child. Lucknow is not a small place. It is a capital of the biggest State in the country and has good educational Institutions as well as medical facilities. It is well connected with all over the country as well as foreign countries. The schooling in Lucknow is not bad as projected by the father of the detenue. At this young age, the detenue requires love and affection of the mother as well as father. Since, the parents have decided to live separately, the Court has to consider where the paramount interest of the child lies and how it can be best secured while deciding the question the custody.
42. The father of the petitioner is contributing only Rs.10,000/- per month only. When the Court asked him whether he is ready to contribute something more, he specifically denied and said that he did not have means to contribute more. The mother, however, has shown generously to accommodate the father of detenue to provide the visitation rights. She had agreed to give custody of the detenue for two days in a month and custody for 50% of the summer as well as winter vacations so that child can live exclusively with the father of the petitioner with excess to mother. The father has not been consistent with his stand and he changed his stand after broadly agreeing before the Court.
43. This Court does not find anything from the pleadings or the submissions which would disentitle the mother to have the custody of the child.
44. Considering the age, sex of the child and she being in the custody of mother who is not incapacitated in any manner and gainfully employed, being well qualified, it would not be appropriate to give the custody of the child to the father, Amit Tandon. In interaction with the Court, the detenue expressed that she would like to be with father during vacations but primarily she would like to be with her mother.
(vii) Relief :-
45. Considering all these aspects, this Court does not find any merit and substance in this petition, which is hereby disposed off with visitation rights to the father of the detenue in following manner :-
(i) Mr. Amit Tandon can visit the detenue on any day with prior notice to her mother. He can make telephonic call for short duration every day to converse with the detenue.
(ii) Mother of the detenue would not object on visiting the child or having conversation over telephone or Skype as the case may be.
(iii) Twice in a week the father can speak to the child over Skype for ½ hour duration each day and during winter and summer vacation the father can take the child to be with him and her mother for 50 % of the vacations, but primarily the detenue would live with her mother.
(iv) The father has stated that he is an entrepreneur and, therefore, he should contribute Rs.10,000/- per month more for the maintenance and study of the detenue for the time being in addition to what he is already contributing.
Order Date :- 23.03.2021 Prateek/Anand