Allahabad High Court
Mohd. Suleman Kidwai Thru. His Mother ... vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 7 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 12 Case :- HABEAS CORPUS WRIT PETITION No. - 221 of 2022 Petitioner :- Mohd. Suleman Kidwai Thru. His Mother Smt. Samreen Nawaid Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Lko. And Others Counsel for Petitioner :- Suresh Chandra Shukla Counsel for Respondent :- G.A.,Anil Kumar Tripathi Hon'ble Mohd. Faiz Alam Khan,J.
On 02.11.2022 learned counsel for the parties were in agreement that they would file the written submissions within one week and after considering the written submissions, the petition be disposed of finally. In pursuance of this order, the parties have filed written submissions which are taken on record.
The instant petition has been filed by the petitioner, Smt. Samreen Nawaid on behalf of the corpus (her son), Mohd. Suleman Kidwai with the prayer to issue a writ, order in the nature of Habeas Corpus directing the opposite parties no.1 to 3 to ensure the opposite party no.4 & 5 to handover the custody of petitioner/detenue to his mother.
The petitioner in her petition has stated that she was married with the respondent no.6 as per Muslim rites and rituals on 14.11.2015 with consent of her parents and started living as his wife and on 20.08.2019, they were blessed by the corpus, namely, Mohd. Suleman Kidwai. It is also stated that the respondent no.6 works in Fire Brigade Department in Kolkata since 2010 and had never taken the petitioner or his son with him and some matrimonial strained relations developed between them. She started living separately since 21.12.2021 at her sister's house with her son (detenue).
It is further stated that on 13.02.2022, she got khula from the respondent no.6 and, thereafter, she started living separately and she married with one Asif Hasan on 17.05.2022. After her marriage with Asif Hasan, she started living with him with her son and on 02.06.2022, she had sent her son with respondent no.4 & 5 in order to spend some time with them and when she asked them to return the detenue, they refused and despite requesting many times, the corpus was not returned back to her.
It is further stated that detenue is aged about 2 years and 10 months and he requires care and attention of the mother more than the respondent no.6 and as the respondent no.6 is serving in Kolkata, there is no one to take care of him except his grand parents and they are also ill.
It is also stated that the detenue is in illegal custody of the respondent no.4 & 5 and, therefore, his custody be provided to the petitioner.
The petitioner alongwith her petition has filed a copy of khulanama and also of nikahnama with Mohd. Asif Hasan as well as copy of application dated 07.07.2022 given to the various authorities.
On being served, the respondent no.4 & 5 have submitted counter affidavit wherein they have denied the contents of the writ petition and it is stated that the petitioner has solemnized her second marriage and is not entitled to keep the detenue alongwith her. It is specifically stated that since the petitioner has solemnized second marriage and is living with her second husband, she is not entitled for the custody of the detenue. Alongwith the counter affidavit, photographs of the second marriage of the petitioner has been placed on record.
Rejoinder affidavit has been filed by the petitioner denying the contents of the counter affidavit with further averments that in para 4 of the khula, it is clearly mentioned that the child will either live with his father or mother and not with anybody else, therefore, the custody of the corpus with respondent no.4 & 5 is unlawful and she has every right to keep her minor child who is just aged about 2 years and 11 months.
The petitioner in her written submissions has reiterated the contention of the petition and has emphasized on para 4 of the khulanama wherein a stipulation has been made that the child will live only with his mother or his father and not with anybody else, therefore, the custody of the corpus with respondent no.4 & 5 is arbitrary and unlawful.
It is also stated that it was on 02.06.2022, the corpus was sent with respondent no.4 & 5 on their request in order to meet and spent some time with his grand parents at Barabanki and, thereafter, the corpus was never returned to the petitioner.
It is also stated that the detenue is aged about 2 years and 10 months and he needs care and protection of mother more than anyone else while the respondent no.4 & 5 are old aged grand parents and would not be able to manage the corpus. It is also stated that the corpus is comfortable with the mother and having regard to his tender age, he be given in the custody of the petitioner.
The respondent no.4 to 6 in their written submissions have stated that the petitioner and the respondent no.6 got separated on 21.02.2021 and on mutual basis, khula was taken by the petitioner on 13.02.2022 and, thereafter, they started living separately. It is also written that the petitioner had solemnized second marriage with Asif Hasan on 17.05.2022.
It is vehemently stated that since the petitioner had solemnized second marriage, she has lost the right to keep the detenue and the custody of the corpus with the respondent no.6 would be more appropriate.
In the written submissions reliance has also been placed of Rohit Thammana Gowda Vs. State of Karnataka and others; 2022 SCC OnLine SC 937, Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others; (2019) 7 SCC 42, Goverdhan Lal Vs. Gajendra Kumar; AIR 2002 Raj 148, M.K, Hari Govindan Vs. A.R. Rajaram; AIR 2003 Mad 315, Kamla Devi Vs. State of H.P.; AIR 1987 HP 34, Anjali Kapoor Vs. Rajiv Baijal; (2009) 7 SCC 322, Athar Hussain Vs. Syed Siraj Ahmed and others; (2010) 2 SCC 654, Syed Saleemuddin Vs. Dr. Rukhsana; (2001) 5 SCC 247 and Mohd. Ikram Hussain Vs. State of U.P. & Others; 1964 (5) SCR 86.
Having perused the pleadings of the parties and having gone through the written submissions submitted by them, it appears to be admitted to the parties that they were married to each other and it was on 20.08.2019, the detenue, Mohd. Suleman Kidwai was born and on 21.12.2021, they started living separately while divorce (khula) as per Muslim law was granted to the petitioner on 13.02.2022. A copy of the khulanama (divorce deed) has also been placed on record and in para 4 of the same, it is mentioned that the son of the petitioner and respondent no.6, namely, Mohd. Suleman Kidwai would remain with both the parents and sometime he would reside with the petitioner and sometime he will remain with the opposite party no.6 and except the parents, he will not remain with anyone else and the maintenance would be given to the corpus by the respondent no.6.
It is also not in dispute that this khulanama was written on 13.02.2022 and on 17.05.2022, the petitioner has solemnized her marriage with one Asif Hasan and according to her, they are living happily. Though it has been stated by the petitioner that the respondent no.6 is serving in Fire Brigade Department in Kolkata (West Bengal) but this contention of the petitioner has been denied by the opposite party no.4 & 5 in their counter affidavit specifically in para 5 of the same. No document has been brought on record which may suggest that the opposite party no.6 is serving somewhere in West Bengal or the corpus is living only with his grand parents. Apart from an application which has been filed with the petition addressed to the Commissioner of Police, Lucknow dated 07.07.2022 wherein it is alleged that on 02.06.2022, the respondent no.4 had come to the house of the petitioner and had taken the corpus with him, there is nothing on record to suggest that the custody of the corpus was exclusively given to the petitioner. Thus, what is prima facie evident from the record is that there is no documentary evidence with regard to the opposite party no.6 serving at Kolkata (West Bengal) and also with regard to the fact that corpus was taken away by the opposite party no.4 from the house of the petitioner on 02.06.2022. What is evident is that after obtaining khula (divorce) from the respondent no.6, the petitioner had solemnized her marriage with one Asif Hasan and is living happily with him.
There is no doubt in the preposition that it is only and only the welfare of the minor child which is paramount in considering the request of the rival parents for the custody of their child. Though the conditions in the khulanama (divorce deed) pertaining to the rotational custody of the son of the petitioner and respondent no.6 was not practical as in future the child would have to take admission in school and, therefore, it would not be possible for him to remain with both the parents due to his educational obligations, however, in the considered opinion of this Court and keeping in view the petitioner has solemnized her remarriage with one Asif Hasan, it would not be in the interest of the minor to shift his custody from his father to the petitioner mother. However, the petitioner may be compensated by providing visitation rights.
The law relating to habeas corpus concerning transfer of custody of children has been discussed by Hon'ble Supreme Court in the case of Capt. Dushyant Somal Vs. Smt. Shushma Somal reported in (1981) 2 SCC 277 and held that it is beyond question that a writ of habeas corpus is not to be issued as a matter of course particularly when the writ is sought against a parent for custody of a child. However, the Court goes on to observe further that all these does not mean that a writ of habeas corpus cannot or will not be issued against a parent who has snatched away a child from lawful custody of other parent. The Court in para 3 of the judgment has observed as under:
"There can be no question that a writ of hebeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for contempt of court for disobeying an order of court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the court sufficient material to conclude that it is impossible to obey the order, the court will not be justified in punishing the alleged contemner. But all this does not mean that a writ of habeas corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grandmother of the child was not subjected to any cross-examination; the appellant-petitioner did not choose to go into the witness-box; he did not choose to examine any witness on his behalf. The evidence of the grandmother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grandmother. The High Court was quite right in coming to the conclusion that the appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The writ of habeas corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward."
In another case of Rajesh Gupta Vs. Ram Gopal Agrawal and others (2005) 5 SCC 359, Hon'ble Supreme Court held that in a petition seeking writ of habeas corpus for custody of minor child the principal consideration for the Court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the said custody should be changed and the child should be left in the care and custody of someone else. The said judgment reiterated the principles laid down by Hon'ble Supreme Court in the case of Saiyad Salimuddin Vs. Dr. Rukhsana (2001) 5 SCC 247, wherein it is held that in case of dispute pertaining to the custody of the child, the paramount consideration is welfare of the child and not the legal right of either of the parties. The para 7 of the above reported judgment is reproduced as under:
"It is well settled that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the case and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. [See Veena Kapoor (Dr.) v. Varinder Kumar Kapoor and Syed Saleemuddin v. Dr. Rukhsana] It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father."
Keeping in view, the above legal principles enunciated by Hon'ble Supreme Court, it reveals that primary consideration pertaining to deciding the custody of a child is to ascertain at first as to whether, the existing custody of the child can be termed as unlawful or illegal and once it is ascertained that the custody is illegal or unlawful, it is further to be visualized as to whether the welfare of the children or child requires that the present custody should be changed? There would not be two views pertaining to the fact that in any proceeding pertaining to the custody of a child, the paramount consideration is the welfare of the child and in any proceedings before the Court where the custody of a minor is in question, the Court in order to decide that question, must have regard to the minor's welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of mother or the mother's claim in respect of it is superior to that of the father.
It is also equally important and obligatory for the writ court to keep this principle in mind that even in proceedings pertaining to habeas corpus, a serious and mature thinking is required to decide as to what is for the benefit of the children. The children of the parents at war are not mere chattels, nor are they toys for their parents, their welfare has to be judged keeping in view the modern changed social conditions so that they may grow up in a normal and balanced environment as useful members of the society and the Role of the Court is to act as their guardian. In a dispute between mother and father for custody of their children it is expected to strike a just, fair and proper balance between the requirement of welfare of the minor children and the rights of their respective parents over them. In such matter human angels are relevant and important. The Court then does not give much emphasis to what parties say, it is obliged on them to exercise a jurisdiction which is aimed at the welfare of minor. The Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comfort, the moral and ethical values have also to be considered.
The corpus admittedly is living in the custody of his father i.e. opposite party No.6 for the last one year. Keeping in view all the facts and circumstances of the case, I am of the considered view that it will not be in the interest of corpus to change his custody from his father / opposite party No.6 to his mother (petitioner).
It has to be further highlighted that there is difference in approach when deciding the custody of a minor in Guardian and Wards Act and in Habeas Corpus Petition. The sine qua non of the Writ of Habeas Corpus is illegal detention of the corpus and in the facts and circumstances of the case, the custody of the corpus with his biological father could not be termed as illegal detention. Moreover, custody under Guardian and Wards Act is decided after providing an opportunity to the parties to tender evidence in support of their claims and in Habeas Corpus Petition, the sole consideration is "Welfare of the Child", irrespective of the preferential right of the parties. The Writ of Habeas Corpus deals with the machinery of justice and not the substantive Law, the object of which is to release the person detained in illegal custody. The child is unfortunate victim in this case and it is to be understood that, he is not to be treated as chattel and his custody should not be changed frequently to the pleasure of the parents, as the pleasure as well as the rights of the parties are immaterial in these kind of disputes, and only consideration is the welfare of minor. Therefore, from the materials brought on record, I hardly find any factor to show that the interest of minor (corpus) shall be better served or protected, in case, he is given in the custody of petitioner (mother) more so when the mother has solemnized remarriage with some other person. In absence of any such material and compelling circumstances coupled with the fact that, child is in the custody of his biological father for more than one year, I am of the considered view that, any attempt to dislodge the present situation would adversely affect the minor.
Keeping in view the entire factual matrix and rival contentions of the parties and taking into consideration the fact that petitioner is the mother of corpus and also bearing in mind that the feeling of love and affection of each parent, whether father or mother, for his/her children, be respected, I deem it proper that, visiting rights may be provided to petitioner to meet her son.
Hon'ble Supreme Court in the case of Amyra Dwivedi Vs. Abhinav Dwivedi and Ors.; MANU/SC/0535/2020 while considering the importance of visiting rights has held as under:-
"4. In Yashita Sahu v. State of Rajasthan 2020 AIR 577, this Court held that the welfare of the child is of paramount consideration in matters relating to custody of children. In this context, we may refer to paragraph 22 of the judgment, which reads as follows:
"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 re-union 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 matter 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."
5. When a court grants visitation rights, these rights should be granted in such a way that the child and the parent who is granted visitation right, can meet in an atmosphere where they can be like parent and child and this atmosphere can definitely not be found in the office of District Legal Services Authority. That atmosphere may be found in the home of the parent or in a park or a restaurant or any other place where the child and the parent are comfortable. "
In view of the above facts, the following order is passed:-
(I) The mother petitioner shall be entitled to meet the child both on the Saturdays and Sundays for a period of eight weeks at the first instance at the house of respondent no.6- Akif Habeeb at House No.B/566, Lakhperabagh, Near Masjid Nawabganj, Police Station Badel, District Barabanki between 11:00 am to 5:00 pm in the evening. In case, the Saturday is a school working day, then the mother will be entitled to meet the child from 5:00 pm to 8:00 pm on such Saturday.
(II) After the period of eight weeks is over and the child becomes familiar with his mother and gets to know her better, the mother will be entitled to take the child with her on each Sunday from 11:00 am in the morning till 5:00 pm in the evening and will bring him back to the house of opposite party no.6 before 5:00 pm. (III) On festivals, such as, Eid-ul-fitr, Eid-ul-Adha, Eid-Miladun-nabi etc., the child may spend time with the father in the morning, but in the evening, he will be permitted to go with the mother for at least two hours on each and every festival.
(IV) When child will start going to school, as far as summer vacations are concerned, if the vacations are for more than fifteen days, the mother will be entitled to take the child for five days, either at the beginning or at the end of the summer vacation. In case the vacations are for more than one month, then petitioner mother will be entitled to keep the child for ten days with her. During the vacations, the mother can also take child out for holidays to any place wherever she feels comfortable.
(V) On the birthday of the child, this Court hope and expect that both the parents should spend some time together with the child leaving their differences apart, but if they cannot do so, then the mother can have custody of the child in the first half of the day for at least four hours and the father in the second half (evening).
(VI) I permit the mother to attend all the school functions, such as, annual day, foundation day, sports day or parents teacher meeting. I direct the school concerned (where the child is studying or will study) to ensure that on production of this order of this Court, the name of the petitioner be entered into the school records as mother of the child and she be informed and called for all the functions when other parents are called. She shall also be apprised about the progress of the child in the school.
(VII) As far as the contact rights are concerned, since the petitioner mother and child live in same town, the mother can either make video call or telephone call with the child every day for twenty minutes between 7:00 pm to 8:00 pm in the evening.
It is made clear that the petitioner wife is at liberty to move the appropriate court for custody of the child under the Guardians and Wards Act 1890. It is further provided that in line of the order which I have passed today, if the need arises, the appropriate court can increase the period of visitation rights of the mother, pending disposal of the custody application, if any.
Thus, having regard to all the facts and circumstances of the case and keeping in view the welfare of the minor child, the instant petition is finally disposed of with the aforesaid directions.
Order Date :- 7.12.2022 Saurabh