Allowed

Master Samarjeet Singh (Minor Detenue) and Another v. State of U.P. and 4 Others

Allahabad HC19 Oct 2019SPLA/597/2019

Case brief

AI extract

What is this about?

The special appeal arose from dismissal of a habeas corpus petition seeking custody of a minor from his maternal uncle. The Division Bench held the Single Judge erred in dismissing the petition on maintainability and merits at once, in not weighing the child's welfare or wishes, and in denying the natural father custody without compelling reasons. Appeal allowed; matter remitted.

What did the court decide?

Special appeal allowed; judgment and order dated 10.04.2019 set aside; matter remitted to the learned Single Judge for decision afresh in the light of the observations made.

Master Samarjeet Singh (Minor Detenue) and… — Child Custody and Guardianship | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 597 of 2019

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Appellant :- Master Samarjeet Singh (Minor Detenue) And Another Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Ashok Trivedi Counsel for Respondent :- C.S.C.,Sharique Ahmed

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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This Intra Court appeal under Chapter VIII Rule 5 of High Court Rules, 1952 (hereinafter referred to as Rules of Court) has been filed by Petitioners-Appellants (hereinafter referred to as Appellants) challenging judgement and order dated 10.04.2019 passed by learned Single Judge, dismissing Habeas Corpus Writ Petition No. 4046 of 2018 (Master Samarjeet Singh (Minor) and another Vs. State of U.P. and three others) filed by them.

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It transpires from record that Appellant-2 Pavneet Singh Gandhi (Father/Natural Guardian of Appellant-1 Master Samarjeet Singh (Minor Detenue) was married to Smt. Jasleen (Mother of Appellant-1) on 27.11.2011 in accordance with Sikh Rites and Customs. From aforesaid wedlock a son namely Samarjeet Singh, appellant-1, was born on 11.06.2013. After expiry of a period of little more than six years, it appears that relations between wife namely Smt. Jasleen and her in-laws became strained.

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Smt. Jasleen, mother of minor-Samarjeet Singh, Appellant-1 and wife of Appellant-2 committed suicide on 20.01.2018. In respect of aforesaid incident, an F.I.R. dated 21.01.2018 was lodged by Gurpreet Singh brother of Smt. Jasleen (deceased), brother-in-law of Appellant-2 and maternal uncle (Mama) of Appellant-1. Aforesaid F.IR. came to be registered as Case Crime No.0009 of 2018 under Sections 498A, 323, 304B and Sections 3/4 Dowry Prohibition Act, P.S. Kohna DistrictKanpur Nagar, wherein four persons namely Pavneet Gandhi (husband of deceased), Ladi Gandhi (mother-in-law of deceased), Jasveer Singh

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(father-in-law of deceased) and Raja (brother-in-law i.e. Devar of deceased) were nominated as named accused.

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Appellant-2, Pavneet Singh Gandhi, husband of deceased and his parents namely Jasveer Singh and Ladi Gandhi were arrested on 21.01.2018. Custody of minor-Samarjeet Singh, Appellant-1 was handed over to opposite party no.4, Jaspal Singh in presence of police officials and a G.D. entry to that effect was made in General Diary of Police Station, Kohna, which is at Sl. No. 31 dated 21.01.2018.

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Appellant-2, Pavneet Singh Gandhi, father of minor-Samarjeet Singh was enlarged on bail by this Court vide order dated 10.10.2018. Bail order dated 10.10.2018 was challenged before Apex Court by filing S.L.P. (Crl.) No. 43755 of 2018 (Gurpreet Singh Vs. State of U.P. and others), but, same was dismissed vide order dated 18.01.2019.

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Police upon completion of statutory investigation of Case Crime No. 0009 of 2018 under Sections 498A, 323, 304B and Sections 3/4 Dowry Prohibition Act, P.S.-Kohna, District-Kanpur Nagar, under Chapter XII Cr.P.C. submitted a charge-sheet dated 16.02.2018 against Appellant-2, Pavneet Singh Gandhi, Smt. Ladi Gandhi and Jasveer Singh parents of Appellant-2 Pavneet Singh Gandhi. Upon submission of aforesaid chargesheet, cognizance was taken by court concerned and ultimately, case was committed to Court of Sessions. Consequently, S.T. No. 284 of 2010 (State Vs. Pavneet Gandhi and others) under Sections 498A, 304B, 323 I.P.C. and 3/4 Dowry Prohibition Act, P.S.-Kohna, District-Kanpur Nagar came to be registered. Thereafter, accused were summoned vide summoning order dated 20.08.2018.

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Feeling aggrieved by charge-sheet dated 16.02.2018, summoning order dated 20.08.2018 as well as entire proceedings of Sessions Trial No.284 of 2018 (State Vs. Pavneet Gandhi and others) arising out of Case Crime No. 0009 of 2018 under Sections 498A, 323, 304B and Sections 3/4 Dowry Prohibition Act, P.S.-Kohna, District-Kanpur Nagar, Appellant-2-

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Pavneet Singh Gandhi @ Mikki alone filed Criminal Misc. Application under Section 482 Cr.P.C. No. 32269 of 2018 before this Court. However, there is nothing on record to show that parents of Appellant-2, Pavneet Singh Gandhi also challenged proceedings of aforesaid Sessions Trial by filing an application under Section 482 Cr.P.C. or Criminal Revision before this Court. For ready reference interim order dated 19.09.2018 referred to above is reproduced herein below:.

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“1. Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 16.02.2018, order dated 20.08.2018 as well as the entire proceedings of Sessions Trial No. 284 of 2018 (State Vs. Pavneet Gandhi and Others), arising out of Case Crime No. 9 of 2018, under Sections- 498-A, 304-B, 323 I.P.C. and Section 3/4 D.P. Act, Police Station- Kohna, District- Kanpur Nagar, pending in the court of District and Sessions Judge, Kanpur.

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Learned counsel for the applicant submits that plainly no offence is made out against the applicant who is the husband of the deceased, in view of the undisputed suicide note recorded and available on a video recording wherein the deceased had specifically stated that she held her father-in-law and mother-inlaw responsible for her suicide.

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Matter requires consideration.

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Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.

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Issue notice to opposite party no.2 returnable at an early date.

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Opposite parties may file their counter affidavits within six weeks. Rejoinder affidavit may be filed within two weeks thereafter.

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List thereafter.

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Till the next date of listing, further proceedings of the aforesaid

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case shall remain stayed against the applicant. ”

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It appears that Appellant-2, Pavneet Singh Gandhi after having been enlarged on bail vide order dated 19.09.2018, filed Habeas Corpus Writ Petition No. 4046 of 2018 (Master Samarjeet Singh (Minor) and another Vs. State of U.P. and three others) alongwith his son-Samarjeet Singh, Appellant-1 before this Court for release of minor-Samarjeet Singh in his favour as he was alleged to be under illegal custody of opposite party no.4, Jaspal Singh (maternal uncle/Mama of Appellant-1, Samarjeet Singh).

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Counter and rejoinder affidavits were exchanged between the parties. Ultimately, learned Single Judge dismissed above mentioned Habeas Corpus Petition filed by Appellants vide judgement and order dated 10.04.2019. Feeling aggrieved by above mentioned judgement and order dated 10.04.2019, Appellants have now filed present Special Appeal.

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We have heard Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Mr. Ashok Trivedi, learned counsel for Appellants. Mr. Manish Tiwari, learned Senior Counsel assisted by Mr. Sharique Ahmad, learned counsel representing opposite party no.4 and learned Standing Counsel representing opposite party nos. 1 and 2. In spite of notice having been sent, no one has appeared on behalf of opposite party nos. 3 and 5.

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Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel in challenge to impugned judgement and order passed by learned Single Judge submits that impugned judgement and order is unsustainable in law and fact, hence same is liable to be set aside. Elaborating his submission, Mr. Chatruvedi submits that learned Single Judge has dismissed Habeas Corpus Writ Petition filed by Appellants by observing that petitioners should approach proper forum and simultaneously touched merits of case. Learned Single Judge could have dismissed Habeas Corpus Writ Petition either on the ground of maintainability or on merits but certainly, not on both grounds simultaneously. As such, impugned judgement and order

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passed by learned Single Judge cannot be sustained in law and fact.

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According to learned Senior Counsel, Appellant-2, Pavneet Singh Ghandhi, being father of Appellant-1, Samarjeet Singh (Minor), is natural guardian of minor and therefore, he alone is entitled to be guardian of minor and to have custody of minor.

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Learned Senior Counsel further contends that in view of undisputed position that Appellant-2 is the natural father of minor, respondent opposite party no.4 cannot retain custody of minor nor can he claim to be guardian of minor as there is no such compelling circumstance on the basis of which Appellant-2 should be denied custody and guardianship of minor, i.e. Appellant-1.

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According to learned Senior Counsel, learned Single Judge, while deciding Habeas Corpus Writ Petition filed by appellants failed to exercise jurisdiction vested in him as there is no consideration as to whether paramount interest of minor lies in custody of appellant-2, Pavneet Singh Gandhi, natural father of minor/appellant-1 or Jaspal Singh, maternal uncle/mama of appellant-1. Apart from above, learned Single Judge has not assigned any compelling reason to deny custody of minor/appellant-1 to his natural father appellant-2. Learned Single Judge did not hold any conversation with minor to know his desire of staying with opposite party No.4 Jaspal Singh, maternal uncle/mama of minor appellant-1 or with his natural father, appellant-1.

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On the aforesaid premise, learned Senior Counsel vehemently submits that issue whether Habeas Corpus Writ Petition is maintainable for seeking custody of minor is no longer res-intigra. Reference made to the judgement of Apex Court in Tejaswini Gaud and others V. Shekhar Jagdish Prasad Tewari and others 2019 (7) SCC 42, wherein Court has held that there is no absolute bar in entertaining Habeas Corpus Writ Petition regarding custody of minor, provided there exists exceptional circumstances . Following was observed by Apex Court in

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paragraphs11, 14, 15, 16, 17, 18, 19 and 20:

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““ 11. Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts as to who can be said to be a natural guardian. As per Section 6 of the Act, natural guardian of a Hindu minor in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) is the father, in the case of a boy or an unmarried girl and after him, the mother. Father continues to be a natural guardian, unless he has ceased to be a Hindu or renounced the world. Section 13 of the Act deals with the welfare of a minor. Section 13 stipulates that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Section 13(2) stipulates that no person shall be entitled to the guardianship by virtue of the provisions of the Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

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Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

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In Gohar Begam [Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164] where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued. In Gohar Begam [Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164] , the Supreme Court dealt with a petition for habeas corpus for recovery of an illegitimate female child. Gohar alleged that Kaniz Begum, Gohar's mother's sister

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was allegedly detaining Gohar's infant female child illegally. The Supreme Court took note of the position under the Mohammedan Law that the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody of the child to the mother would result in illegal custody of the child. The Supreme Court held that Kaniz having no legal right to the custody of the child and her refusal to make over the child to the mother resulted in an illegal detention of the child within the meaning of Section 491 CrPC of the old Code. The Supreme Court held that the fact that Gohar had a right under the Guardians and Wards Act, 1890 is no justification for denying her right under Section 491 CrPC. The Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain the writ petition and held as under: (Gohar Begam case [Gohar Begam v. Suggi, AIR 1960 SC 93 : 1960 Cri LJ 164] , AIR pp. 95-96, paras 7-8 & 10)

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“7. On these undisputed facts the position in law is perfectly clear. Under the Mohammedan law which applies to this case, the appellant is entitled to the custody of Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an illegal detention of the child within the meaning of Section 491. This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants. In R. v.Clarke [R. v. Clarke, (1857) 7 EL & BL 186 : 119 ER 1217] Lord Campbell, C.J., said at EL & BL pp. 193-94: (ER p. 1220)

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‘But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty.’

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The courts in our country have consistently taken the same view. For this purpose the Indian cases hereinafter cited may be referred

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to. The terms of Section 491 would clearly be applicable to the case and the appellant entitled to the order she asked.

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We therefore think that the learned Judges of the High Court were clearly wrong in their view that the child Anjum was not being illegally or improperly detained. The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law.

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We further see no reason why the appellant should have been asked to proceed under the Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under Section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under Section 491. That is well established as will appear from the cases hereinafter cited.”

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In Veena Kapoor [Veena Kapoor v. Varinder Kumar Kapoor, (1981) 3 SCC 92 : 1981 SCC (Cri) 650] , the issue of custody of child was between the natural guardians who were not living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one and a half year old child. The Supreme Court directed the District Judge concerned to take down evidence, adduced by the parties, and send a report to the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

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In Rajiv Bhatia [Rajiv Bhatia v. State (NCT of Delhi), (1999) 8 SCC 525] , the habeas corpus petition was filed by Priyanka, mother of the girl, alleging that her daughter was in illegal custody of Rajiv, her husband's elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court held that the High Court was not

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entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.

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In Manju Malini [Manju Malini Seshachalam v. Vijay Thirugnanam, 2018 SCC OnLine Kar 621 : (2018) 4 AIR Kant R 166] where the mother filed a habeas corpus petition seeking custody of her minor child Tanishka from her sister and brotherin-law who refused to hand over the child to the mother, the Karnataka High Court held as under: (SCC OnLine Kar para 26)

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“26. The moment Respondents 1 and 2 refused to hand over the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of Respondents 1 and 2 even amounts to the offence of kidnapping punishable under Section 361 IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and Respondents 1 and 2 are in legal custody of baby Tanishka.”

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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.

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In child custody matters, the ordinary remedy lies only under

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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.”

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Supplementing his arguments, learned Senior Counsel further submits that Special Appeal against an order passed by learned Single Judge in a Habeas Corpus Writ Petition is maintainable. The issue stands settled by virtue of full Bench Judgement of Lucknow Bench of this Court in Smt. Chawali Vs. State of U.P. and Others , 2015(1) ADJ 387 , wherein following has been observed in paragraphs 173 and 174 :

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“.173 …...

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Issue No.C

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This issue raises the following question:-

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"Question No.5- Whether such a Habeas Corpus petition can be stated to be criminal in nature, and if so, then whether a special appeal would be maintainable against an order passed by a learned Single Judge in such a petition in terms of Chapter VIII Rule 5 ?"

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The aforesaid question need not detain the Court inasmuch as the answer to the arguments advanced by Sri Tripathi and Sri Anu Pratap Singh and Sri Ojha lies in the decisions that have already

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been cited before this Court and are supported by other decisions which are to the following effect that have been relied upon by Sri Zilani :-

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Riya Singh v.. State of U.P., 2011 (11) ADJ 660 (DB) (LB).

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Union of India v.. Inderjeet Baruva, 1980 (Suppl) SCC 696

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S.A.L. Narain Row v. Ishwar Lal Bhagwan Das, AIR 1965 SC 1818.

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Sri Mathur also in his written submissions in paragraph nos.37 to 47 has explained the said position and I entirely agree with the same except in relation to a state detention matter which would itself be entertainable by a division bench. A special appeal would be maintainable against the order of a learned single judge in a matter of private detention habeas corpus petition under Chapter XXI of the 1952 Rules. The order of the learned Single Judge deciding a habeas corpus petition cannot be said to be in the exercise of a criminal jurisdiction. The said question is, therefore, partly answered in the negative and while approving the ratio of Riya Singh's (supra) I hold that a special appeal is maintainable against the order of the learned Single Judge deciding a private detention habeas corpus petition under Article 226 of the Constitution of India.”

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It is thus urged by learned Senior Counsel that learned Single Judge failed to exercise jurisdiction vested in him. Learned Single Judge appears to have been swayed away by the facts and circumstances of the case, which by themselves are not sufficient enough to deny custody of minor Appellant-1 to natural father, Appellant-2. It is thus urged that judgement and order passed by learned Single Judge is liable to be set aside and opposite party no.4 Jaspal Singh is liable to be directed by this Court to hand over custody of minor-Appellant-1 to Appellant-2, the natural father.

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Per-contra Mr. Manish Tiwari, learned Senior Counsel appearing for Opposite Party No.4 has supported impugned order passed by learned Single Judge on the strength of findings recorded therein as also the observations made by learned Single Judge in the impugned judgement and order. Apart from above, Mr. Manish Tiwari, learned Senior Counsel has further submitted that custody of a minor can be denied to natural father provided exceptional circumstances exist. Detailing his arguments, he vehemently submits that father of minor i.e. Appellant-2 was in custody from 21.01.2018. Subsequently, Appellant-2 has been released on bail vide order dated 10.10.2018. It is thereafter that present Habeas Corpus Writ Petition has been filed. Prosecution launched against Appellant-2 and his parents has not yet concluded. Police has submitted a charge-sheet against Appellant-2 and his parents, upon which cognizance was taken and case was committed to Court of Sessions. Accordingly, S.T. No. 284 of 2018 (State Vs. Pavneet Gandhi and Others) under sections 498A, 323, 304B and Sections 3/4 Dowry Prohibition Act, P.S.-Kohna, District-Kanpur Nagar came to be registered. Aforesaid trial is still pending, Therefore, liberty of appellant-2 and his parents is not definite but subject to outcome of aforesaid Sessions Trial. In such circumstances, custody of minor cannot be left to chance but has to be decided taking into consideration definite circumstances. Learned Single Judge, therefore, rightly dismissed Habeas Corpus Writ Petition filed by appellants.

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It is next contended that minor-Samarjeet Singh is of tender age as he is aged about six years and four months on date. Looking at the age of minor-Samarjeet Singh, Appellant-1, he needs a female who can provide care and protection like his mother. No doubt, grandmother of minor is alive but looking at her age and coupled with the fact that she is a chargesheeted accused and trial is still going on, it is impossible to conceive that an old lady will be able to handle a minor boy aged about six years and four months.

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Lastly it is submitted that Appellant-2 minor is in custody of his maternal uncle i.e. Mama-brother of mother of minor. Said custody was given by Police, as is evident from Entry No. 31 dated 21.01.2018 in General Diary of Police Station-Kohna, District-Kanpur Nagar. Opposite Party No.4 has natural love and affection for his sister's son/Bhanja (i.e. Appellant-1). As such, custody of minor appellant-1 is not illegal. In the totality of facts and circumstances of the present case, no illegality was committed by learned Single Judge in dismissing Habeas Corpus Writ Petition filed by Appellants.

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Having heard learned counsel for parties and upon perusal of material on record, this Court finds that following issues arise for evaluation in the present special appeal:-

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I. Whether learned Single Judge was justified in dismissing Habeas Corpus Writ Petition filed by Appellants simultaneously by touching merits of case and further observing that petitioners should approach proper forum.

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II. Whether procedure adopted by learned Single Judge in deciding Habeas Corpus Petition, which admittedly relates to custody of a minor is wholly illegal inasmuch as learned Single Judge has firstly not considered the issue relating to paramount interest of minor in custody of natural father appellant-1 or his maternal uncle/mama opposite party No.4, secondly, without mentioning compelling circumstances on basis of which custody of minor could be denied to natural father, and lastly, learned Single Judge proceeded to decide Habeas Corpus Writ Petition without having conversation with minor to know his point of view regarding his stay with appellant-2 or opposite party No.4, even though minor was of a tender age.

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III.Whether learned Single Judge has failed to exercise jurisdiction vested in him.

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Before proceeding to consider aforesaid issues, we may point out that Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as Act, 1956.) and The Guardian and Wards Act, 1890 substantially deal with custody as well as guardianship of minor. Therefore, law laid down by Courts in consideration of the issue i.e. custody and guardianship of minor has to be found in reference to the provisions of aforesaid Acts. The guiding principles developed by Courts while deciding the issue relating to custody of a minor are paramount interest of child, desire of minor to stay with natural guardian or otherwise, whether compelling circumstances exist to deny natural guardian the custody of minor or not, will have to be applied while deciding issue relating to custody of minor. 23. We may further point out that there are no indicators in Section 25 of Act, 1890, regarding principles to be kept in mind while deciding the guardianship of minor. To the contrary Section 13 of Act, 1956 specifically provides that welfare of minor is paramount consideration. Guided by aforesaid principle, Courts have developed the law relating to custody of minor. Apart from laying down principles to be considered by Courts. While deciding custody of minor as noted above, it has further been developed that a minor, who is below five years of age, shall ordinarily be allowed to stay with mother. Similarly in case of minor girls, it has been the consistent view that their custody should remain with mother till they attain age of majority. It shall be useful to refer to paragraphs 7, 8, 9, 10 and 11 of a Division Bench judgement of this Court in First Appeal Defective No. 138 of 2019 (Mritunjay Vs. Hari Shankar Dixit) decided on 8.7.2019, wherein Court has considered issue relating to custody of minor:

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“7. While determining the question of custody of a minor child, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

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In Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC

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673, it has been held that the principles of law in relation to the custody of a minor child are well settled. While determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

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In the above case, a passage from Halsbury's Laws of England (4th Edn., Vol. 13) was reproduced which reads as under:

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"809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."

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Earlier, Apex Court in Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian.

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Following the above authorities, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 Court expressed the same view holding as under:

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"It is to be borne in mind that in a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective."

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(emphasis added) ”

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In Lekha Vs. P. Anil Kumar 2006 (13) SCC 555 , Court had dealt with the issue regarding guardianship and custody of minor and observed as follows in paragraphs 15, 16, 17 and 19:

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“ 15. Sk. Moidin v. Kunhadevi [AIR 1929 Mad 33 (FB)] was a case of a father, a motor driver, applying for writ of habeas corpus to get custody of his 7-year-aged child. Nobody was available in his house to look after such child. The Full Bench held that the Court has to look to an application under habeas corpus in the interest of the child as being paramount. The Court held that prima facie in the eye of the law, the father is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount.

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In Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad 451 : 56 Cri LJ 1192] the High Court in deciding the question of custody held as follows: (AIR p. 452)

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“In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ‘ipso facto’ entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25.

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The application of these tests casts an ‘arduous’ duty on the

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court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and Wards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward—a no mean task but the highest fulfilment of the dharmasastra of his own country.

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It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others.”

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In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court held as under: (SCC p. 565, para 17)

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“17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.”

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19.The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the

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mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi[AIR 1950 Mad 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.”

¶111

(Emphasis added)

¶112

The scope of examination while deciding custody of minor in Habeas Corpus Writ Petition has been considered in Tejaswini Gaud and others (Supra), wherein Court has in paragraphs 21, 26, 27, 28, 29, 34 and 35, as follows:-

¶113

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.

¶114

The court while deciding the child custody cases is not

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bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.

¶117

After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , it was held as under: (SCC pp. 427-28, paras 49-52)

¶118

“49. In Goverdhan Lal v. Gajendra Kumar [Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 : AIR 2002 Raj 148] , the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.

¶119

Again, in M.K. Hari Govindan v. A.R. Rajaram [M.K. Hari Govindanv. A.R. Rajaram, 2003 SCC OnLine Mad 48 : AIR 2003 Mad 315] , the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to “human touch”. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.

¶120

¶121

In Kamla Devi v. State of H.P. [Kamla Devi v. State of H.P., 1986 SCC OnLine HP 10 : AIR 1987 HP 34] the Court observed: (SCC OnLine HP para 13)

¶122

‘13. … the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.’

¶123

In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected,nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form

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an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”

¶126

Reliance was placed upon Gaurav Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] , where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51)

¶127

“32. In McGrath (Infants), In re [McGrath (Infants), In re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed: (Ch p. 148)

¶128

‘… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word “welfare” must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.’

¶129

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When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] , 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 comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

¶131

51.The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the

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court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.

¶134

1. Contending that however legitimate the claims of the parties are, they are subject to the interest and welfare of the child, in Rosy Jacob [Rosy Jacob v.Jacob A. Chakramakkal, (1973) 1 SCC 840] , this Court has observed that: (SCC pp. 847 & 855, paras 7 & 15)

¶135

53.“7. … the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors.***

¶136

… The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred [Jacob A. Chakramakkal v. Rosy J. Chakramakkal, 1972 SCC OnLine Mad 90 : (1972) 85 LW 844] in reversing him on grounds which we are unable to appreciate.”

¶137

As observed in Rosy Jacob [Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840] earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include

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¶139

various factors like ethical upbringing, economic well being of the guardian, child's ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable.

¶140

The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach. In the present case, the first respondent has neither abandoned the child nor has deprived the child of a right to his love and affection. The circumstances were such that due to illness of the parents, the appellants had to take care of the child for some time. Merely because, the appellants being the relatives took care of the child for some time, they cannot retain the custody of the child. It is not the case of the appellants that the first respondent is unfit to take care of the child except contending that he has no female support to take care of the child. The first respondent is fully recovered from his illness and is now healthy and having the support of his mother and is able to take care of the child.”

¶141

Upon examination of impugned judgement, we find that learned Single Judge, has dismissed Habeas Corpus Writ Petition, filed by appellants by observing that petitioners should approach proper forum and simultaneously by touching merits of case. Procedure so adopted by learned Single Judge, cannot be approved as no writ petition can be dismissed on the ground of maintainability as well as merits simultaneously. We therefore, find force in the submission urged by Mr. Gopal Chaturvedi, learned Senior Counsel that learned Single Judge committed a mistake in law, by dismissing Habeas Corpus Writ Petition filed by appellants simultaneously on maintainability as well as on merits. 27. Perusal of judgement rendered by learned Single Judge shows that

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learned Single Judge has simply noted the arguments advanced by respective counsels and thereafter, has given conclusion. Submission of Mr. Gopal Chaturvedi, learned Senior Counsel is that learned Single Judge has not adverted to the submissions urged in the light of facts and circumstances of the case. It has not weighed submissions urged before it nor recorded a conclusive finding. Procedure adopted by learned Single Judge is not acceptable in law as submissions urged whether accepted or rejected have to be preceded by an in-depth analysis of the same. When aforesaid exercise is undertaken, Court applies its mind to the facts of case, submissions made and law applicable. Upon evaluation of same, the Court derives the conclusions. It is this process alone which provides reasons in support of conclusion so drawn. Reference at this stage, be made to Union of India Vs. M. L. Capoor AIR 1974 SC 87 , wherein following has been observed in paragraph 28:-

¶144

“28...... Reasons are the links between the materials on which

¶145

certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable..........:-

¶146

We further find that learned Single Judge while passing impugned judgement has not considered the issue relating to paramount interest of minor, which is the cardinal issue to be considered while deciding custody of minor. Learned Single Judge omitted to consider this aspect of matter which has vitiated impugned judgement and other. It should have considered the position of Appellant-2, Pavneet Singh Gandhi and opposite party no.4 and then return a conclusive finding as to in whose company lies the interest of minor i.e. Appellant-1.

¶147

Apart from above, Corpus, whose custody was involved is of a tender age. Corpus is just aged about six years and four months. Therefore, Court

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in all propriety should have held conversation with minor to ascertain his desire of his staying with his father, Appellant-2 or with his maternal uncle/Mama i.e. opposite party no.4. No such exercise was undertaken and his custody has been decided only by considering pending criminal case.

¶150

Another issue crops up for consideration is that learned Single Judge while deciding custody of minor has been swayed away by the facts and circumstances of case. Particularly, prosecution launched against Appellant -2, natural father of Appellant-1 minor. It is true that criminal prosecution has been launched against Appellant-2 but whether that by itself is a ground to deny custody of minor to natural father has not been evaluated. No reason has been assigned to deny custody of minor in favour of natural father. Admittedly, natural father has preferential claim over any other person regarding custody of minor. Departure from aforesaid rule can be made only if compelling circumstances exist. Learned Single Judge has not assigned any such compelling circumstance for departing from aforesaid established legal principle.

¶151

In Roxann Sharma Vs. Arun Sharma, reported in AIR 2015 SC 2232 , Court has observed that custody of a minor who is less than five years of age, can be denied to mother for strong reasons. Paragraph 16 of the said judgement is relevant and reads as under:-

¶152

"The learned Single Judge in Writ Petition 79 of 2014 has categorically ordered that whilst the custody of Thalbir shall continue with the Father, the Mother shall get "visitation rights" which he temporarily fixed at least three days in a week "at a mutual agreeable place preferably within the jurisdiction of the Court," situate in Goa; the Trial is continuing in Goa. We fail to locate or appreciate any reason or justification for the intervention of the High Court in Writ Petition 576 of 2014 which is the subject matter of Civil Appeal of 2015 arising out of SLP (C) 32581 of 2014 by a different learned Single Judge. We have already noticed the intendment of Section 14 of the G&W Act which acknowledges

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the salutary necessity of only one court in dealing with the guardianship or custody disputes pertaining to the minor. This petition challenged the proprietary of the Order dated 6.9.2014 passed by the learned Civil Judge which in turn was in compliance with the Order dated 2.8.2014, which it may be recalled granted visitation rights to the Mother for at least three days in a week within the jurisdiction of the Court. The annals of the turbulent marriage of the parties, the IVF conception of Thalbir etc., have been duly noted by the first learned Single Judge and the learned Civil Judge. The learned Single Judge has then questioned the very applicability of HGM Act as well as G&W Act in the State of Goa, an aspect which had not been agitated by either the Mother or the Father in any of the earlier proceedings. There can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons . The need to have a continuity in adjudication ought to have persuaded the second learned Single Judge to have recused himself in preference to his learned Brother who decided the previous Writ Petition."

¶155

It is thus evident that learned Single Judge while deciding Habeas Corpus Writ Petition filed by Appellants has not considered paramount interest of the minor child. It has not evaluated as to in whose custody the interest of minor shall be best protected. We further find that learned Single Judge did not hold any conversation with the minor who is of a tender age to know his desire of staying with his father or opposite party no.4, Jaspal Singh i.e. maternal uncle/Mama of minor child. Apart from above, we further find that custody of a minor can be denied to natural guardian provided compelling circumstances exist to deny custody of

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minor to natural guardian, but it has not detailed any such circumstance sufficient to deny custody of minor to natural father. Further, it has been swayed away by peculiar facts of present case, which by themselves are not singularly sufficient to decide custody of minor. Further more, it could not have decided Habeas Corpus Writ Petition filed by Appellants on merits as well as on maintainability simultaneously.

¶158

In view of discussions made herein above, present Special Appeal succeeds and is liable to be allowed.

¶159

Accordingly, we allow this special appeal and set aside judgement and order dated 10.04.2019 passed by learned Single Judge and remit the matter to learned Single Judge for decision a fresh, in the light of observations made herein-above. However, we make the costs easy.

¶160

Order Date :- 19.10.2019 YK

Master Samarjeet Singh (Minor Detenue) and Another v. State of U.P. and 4 Others

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Master Samarjeet Singh (Minor Detenue) and Another v. State of U.P. and 4 Others

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