Allahabad High Court
Yajur Verma @Jai Verma vs State Of U.P. And 5 Others on 1 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:17579 AFR Reserved on 06.12.2023 Delivered on 01.02.2024 Court No. - 82 Case :- HABEAS CORPUS WRIT PETITION No. - 831 of 2023 Petitioner :- Yajur Verma @Jai Verma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Mahesh Narain Singh,M.N. Singh Counsel for Respondent :- G.A.,Sarvesh Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Mahesh Narain Singh, learned counsel for the petitioner, Sri Sarvesh, learned counsel for respondent no.4 and Mohd. Shoeb Khan, learned A.G.A. for the State.
2. This habeas corpus writ petition has been filed on behalf of minor son Yajur Verma @Jai Verma aged about four years through his father against Smt. Ashi Verma @ Hani Verma, mother of the corpus, the respondent no.4 and others.
3. The submissions of the petitioner in brief are as below-:
i. The marriage of Gaurav Verma, the petitioner with respondent no.4 was solemnized in 2010. Two sons were born to the couple, elder one Granth Verma is now aged about eight and half years and the younger one Yajur Verma is now aged about four and half years. Parental houses of both sides are hardly 500 meters away from each other. The family members of his wife have been exerting pressure on him to stay with them.
ii. It is alleged in the petition that his wife Ashi Verma, all of sudden, in a pre-planned manner stepped down from the train in the night of 27/28.09.2021 at Jhansi Railway Station, when they were returning from Ujjain. He lodged a missing report and she was recovered from Gwaliar railway station and was given in custody, to her father Kamlapati Verma. In pursuance of this conspiracy between his wife and father-in-law, his two sons were snatched away by his wife and her father and they left for Etawah. The petitioner requested his father-in-law and his wife to return the kids but they did not budge. They pressurized Gaurav Verma but he refused to sign certain papers. Thereafter his wife lodged a false F.I.R. as case crime no.433 of 2021, under Sections 307, 498A, 323, 504 120 B, I.P.C., Another case under Section 125 Cr.P.C. has been filed against the petitioner which was decided on the basis of a compromise. With the permission and consent of the petitioner corpus was admitted in pre-nursary class in Etawah. However, all of sudden without informing him, Yajur Verma was withdrawn from his school at Etawah and has been admitted in a school at Lucknow. Opposite party no.4, Ashi Verma, his wife is now pursuing LLB course at Etawah. These facts have proved that Yajur Verma, their minor son is not in custody of his mother and has been left under the care of some distant relative or some other. In view of the above facts, the petitioner has no alternative remedy except to file this habeas corpus writ petition for production of his child.
iii. One of the contentions of the petitioner is that earlier a Habeas Corpus Writ Petition no.521 of 2022, Gaurav Verma vs. State of U.P. and others was filed by respondent no.4 with regard to elder son Granth Verma which was decided by a coordinate Bench of this High Court by order dated 22.09.2022, in which following directions were issued :-
"I. The Corpus shall remain with his father till a contrary direction, if any, is passed by any Court of Law.
II. Father shall not obstruct or object the visiting rights of mother of Corpus and he shall permit his mother to meet the Corpus on any day with prior notice as well as on each Sunday in day time at his home and father will also have similar liberty to meet his younger son at his mother's home.
III. Mother and father of Corpus are also directed not to create any ruckus during their visit at respective houses to meet the child.
IV. The Investigating Officer is directed to organize a mediation between parties as well as, if necessary, organize a counselling session for parents also."
In view of said order passed by the High Court, the argument of the petitioner is that he was given visiting right in respect of his younger son at his mother's house and his wife Ashi Verma has deliberately shifted his younger son to a boarding school at Lucknow, therefore, he can no longer meet him.
iv. A special appeal was filed challenging the aforesaid order dated 22.09.2022 which was decided by order dated 30.11.2022. In the aforesaid order he was again granted a right to meet his younger child Yajur Verma @Jai Verma in the house of Smt. Ashi Verma. The High Court had directed Ashi Verma to allow a weekly meeting of father with his younger son, every Saturday. On the basis of the aforesaid orders dated 22.09.2022 and 30.11.2022 it is vehemently argued that the child has been deliberately removed to Lucknow just to defeat the aforesaid orders and that this facility should be restored immediately.
4. It may be noted that the petition is spread into over 40 pages containing incidents told elaborately with rather ornate and longish descriptions, many of them may not be related to main relief, hence I do not find it necessary to allude to all of them.
5. In the counter affidavit filed by opposite party no.4, deponent Ashi Verma has levelled most of the paragraphs of the petition as misleading, misconceived and fake.
It is submitted by her that the sole purpose behind the request to arrange his visit to meet his son is actually part of plot to kill her. She had noticed that two unknown persons were talking with her husband and she was in fact pushed out from the train when it had just started from Jhansi. She sustained injuries but she was saved and this was the reason they did not stop the train and did not get down for searching her. She was found lying unconscious near the track and was saved by some school going girls. Thereafter she herself went to police station and narrated the story and at that time she refused to go with her husband and mother-in-law and both of her sons refused to go with father and accompanied her. Later on her elder son was kidnapped by his father. She submits that in order to provide best education to her children she has got admitted younger son to a best school in Lucknow, where he is studying as a regular student. She herself intends to get admission in Lucknow so that she can take care of her son. Her son is in a day boarding school and his school timing is 9.30 A.M. to 4.50 P.M. Her husband has not given her any alimony. His restaurant is running in loss and he has always been very cruel in his behaviour and therefore he cannot take care of his sons for the reasons that his financial position is weak and also that his behaviour is rough and harsh. Her husband Gaurav Verma has twisted facts and concocted stories in his defence. Further it is stated that Yajur Verma is regularly studying in a very good school of U.P. and that Gaurav Verma wants to spoil the younger child in the same manner as he has been doing with his elder son, who was kidnapped from the custody of mother just in order to save himself and his parents from criminal cases.
6. In the end it is contended that this habeas corpus writ petition is not maintainable on two grounds. The first ground is that the child is only four years old and the mother is his natural guardian and the second is that Gaurav Verma has already filed a case under the Guardian and Wards Act.
7. I heard both the sides and interacted with the parties giving them enough of space and time with a view to explore the probability of amicable solution and also to rummage through the real facts and circumstances which may aid the court in adjudicating the matter of custody of the child, which is more often then not a very sensitive issue between parents.
8. Admittedly the parties are husband and wife and are living separately since at least more than two years. The couple have two sons and this habeas corpus writ petition has been filed by the father seeking custody of his younger son who is admittedly about four years old.
9. The petitioner's straight contention is that earlier in the petition filed by mother on behalf of their elder son the High Court gave him liberty to meet his younger son at mother's house at Etawah and that as the child has been removed to Lucknow, therefore, his right granted by the High Court stands defeated. This is quite clear that younger son has been staying with his mother all along and that he never stayed with his father alone at any point of time.
10. In Syed Saleemuddin vs. Dr. Rukhsana and others , (2001)5 SCC 247 it was observed as below-:
"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."
11. The same question again cropped up before the Hon'ble Supreme Court in Nithya Anand Raghavan vs. State (NCT of Delhi) and another, (2017)8 SCC 454 :-
"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."
12. In Meenakshi and another vs. State of U.P. and others Allahabad High Court, 2020 12 ADJ 254 it was observed in para-47 as below:-
"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."
13. The Hon'ble Supreme Court in the case of Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 has observed as below:
"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.
The Supreme Court has further observed that 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 and that it is only in suitable cases, the rights of the parties to the custody of a minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
14. In paras 25 and 26 of the judgement given by Allahabad High Court in the case of Meenakshi (supra) it has been held that :
"25. No doubt, the father and the mother, are both natural guardians, if one goes by Section 6(a) of the Act of 1956. The mother's right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan (Ms) and another vs. Reserve Bank of India and another, (1999) 2 SCC 228. So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.
26. What is important while deciding the issue of custody between two natural guardians, is where the minor's welfare would be best secured. The statute indicates a preference for the mother, so far as a child below five years is concerned. But, that legislative edict though a strong indicator, is not to be construed as an inflexible rule to be mechanically applied. The question of a child's welfare is always a matter for the Court's decision, based on varied factors."
15. From perusing the precedents this legal position emerges that the habeas corpus petition is no ordinary remedy and that the normal procedure would be to invoke the civil court jurisdiction under the Hindu Minority and Guardianship Act or the Guardians and Wards Act. Natural corollary therefore is that writ jurisdiction in this regard should be exercised in most suitable cases if not the exceptional ones. Secondly that where difficult and complex questions, as regard custody of minor arise, the relevant statutory provisions and the rights of parties emanating therefrom should be kept in mind. Though welfare of the child shall still remain the paramount consideration. The things have to be balanced between the right of the parties and child's preference where the child is capable of forming an intelligent preference with the ultimate i.e. welfare of the child.
16. The Allahabad High Court in Meenakshi (supra) was faced with a vexed and sensitive question of custody of minor aged four years between his mother and father. The Court observed that for a child below five years a mother is to be preferred, though the ultimate parameter remains what is best for child's welfare. In the instant case the corpus, who is around four years, has been staying with his mother all along. The petitioner has not been able to show as to reasons why the custody of the corpus must change hands and how he can take better care of him rather than his mother. This has come in evidence that corpus is studying at some good educational institution at Lucknow and that his mother is having support of her family in raising the child. The petitioner has taken shelter of the fact that he was given right to visit his younger son by an order passed in Special Appeal No.658 of 2022, Granth Verma Vs. State of U.P. and others. Admittedly, this matter concerned to his elder son only. It has already been shown that this order was passed as an interim arrangement, by the High Court by its order dated 30.11.2022. Admittedly arrangement was purely temporary and was subject to the condition that mother of corpus Ashi Verma continued to reside at Etawah and that in case she changed his domicile to any other district, the interim arrangement would stand discharged.
17. In the instant case this is an admitted position that mother of the child has got him admitted to a school at Lucknow and that she planned to shift to that place to pursue her study/career. The petitioner has himself said that child has been shifted to Lucknow. Respondent no.2, mother has dispelled doubts for the reasons behind shifting. She has informed in her counter affidavit that corpus has been admitted in very good school at Lucknow and that he (the corpus) is staying with his mother, his grand mother and grand father. And meanwhile she too has already shifted to Lucknow and planned to settle there permanently. She has imputed several serious allegations against her husband. One of them being forcible removal of elder son from her custody and attempt being made on her life by pushing her from a running train. Though her allegations cannot be ascertained in this habeas corpus petition, however, the kind of allegations demonstrate the huge and serious differences and conflicts the couple have between them. All said and done the facts remains that the petitioner has not been able to show that how it is necessary to transfer custody of the corpus from mother to the father at this juncture and how the welfare of the child would be better served with his father or how mother is not entitled or how it is not good to leave the corpus with his mother.
18. The parties were interviewed and interacted with, by me in the privacy of my chamber. I tried to fathom the factors involved in the matter for the purpose of exploring the chances of amicable settlement as well as for the purpose of deciding custody of the child. After long interaction with the two, I came to the conclusion that there are issues, controversies and certain happenings which cannot be solved by ordinary counselling. The parties need to go through long and sustained counselling and that in the circumstances I find it much better not to disturb the custody of the corpus at this juncture and more so to keep him away from complexities of the relationship between his parents. This probability cannot be ruled out that with change of hands - he might be exposed to certain other realities of strained relations between his parents, of which he might be oblivious of so far. A tender and impressionable mind is not prepared for a jolt now and in case he is dislodged from his current environment, in which he may be comfortable by now, such a course of action may bring new revelations which ultimately may not be conducive for his health.
19. Taking into consideration all the facts and circumstances, I do not find any good reason for transferring the custody of the child to the petitioner. Therefore this habeas corpus writ petition is dismissed.
Order Date :01.02.2024 Asha