Dismissed

Km. Anika(Minor) and Another v. State of U P and 3 Others

Allahabad HC14 Dec 2022HABC/83/2021

Case brief

AI extract

What is this about?

The High Court dismissed a habeas corpus petition filed by a mother seeking custody of her minor daughter, who was currently in her father's custody. The Court held that since regular civil litigation on custody and maintenance was pending, the writ petition was not appropriate and would unsettle the child's psychological well-being.

What did the court decide?

Habeas corpus petition dismissed; no change in custody ordered.

Km. Anika(Minor) and Another Vs State of U… — Child Custody and Guardianship | Allahabad HC (2022)

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Reserved on- 22.11.2022 Delivered on- 14.12.2022

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Court No. - 91

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Case :- HABEAS CORPUS WRIT PETITION No. - 83 of 2021

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Petitioner :- Km. Anika(Minor) And Another Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Ghanshyam Pandey,Anurag Pathak,Ashish Dwivedi,Harshit Pathak,Shailesh Kumar Counsel for Respondent :- G.A.,Ankur Tondon

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Harshit Pathak, learned counsel for the petitioners, Sri Ankur Tandon, learned counsel for the respondents and Sri O.P. Mishra, learned A.G.A. for the State.

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Perused the record.

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This habeas corpus writ petition has been filed by the petitioner no.2 in capacity of natural guardian/mother of corpus, Km. Anika, a girl (who has been arrayed as petitioner no.1), seeking her custody from respondent no.4- father of corpus.

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Submissions of the petitioner no.2 are that she and respondent no.4 are husband and wife, who got married on 02.12.2015; a girl child Anika was born to her on 15.07.2017; her daughter with the assistance of police was forcibly taken from her and given in custody of respondent no.4; since then, she has been complaining to police authorities to get her restored, however with no avail; she filed a case under Section-7 of

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the Family Courts Act, 1984 before the Principal Judge, Kanpur Nagar. The girl is merely three and a half years of age; hence being mother and natural guardian and taking into consideration the welfare of the minor girl, she must be reposed over to her.

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The petition is opposed by the respondent no.4- father of the girl child, on the grounds that several litigations are pending between the two sides and that his daughter is quite comfortable with him and he is taking best care of her and his custody by no stretch of imagination can be called illegal. Therefore, this petition is not only not maintainable but also is a mala fide attempt to wrest the custody from him.

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It is brought to my notice that a case under Section-7 of the Family Courts Act has already been filed in October, 2020 by the respondent-husband with a prayer to grant an injunction for restraining his wife and her family members from forcibly taking away the

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corpus Km. Anika from his custody. My attention has also been drawn to a paper, which has been annexed with the counter affidavit filed on behalf of the respondent no.4, which prima-facie indicated that the petitioner no.2 has already filed an application under Section-25 of The Guardians and Wards Act, 1890 seeking custody of her daughter. During the course of hearing, the above fact is not disputed by the petitioners’ side, however its added that as the child is of tender age, hence the custody should be with her mother alone.

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The petitioner has cited the case of Habeas Corpus No.8820 of 2020 ( Shigorika Singh and Another vs. Dr. Abhinandan Singh and Others) and Habeas Corpus Writ Petition No.861 of 2019 ( Smt. Meenakshi vs. State of U.P. and 8 Others) and the respondent has cited the case of Habeas Corpus Writ Petition No.1026 of 2019 ( Master Manan @ Arush vs. State of U.P. and 8 Others) and Habeas Corpus Writ Petition No.82 of 2019 ( Manuj Sharma v. State of U.P. and Others).

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In Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, decided by the Apex Court on 6^th May, 2019 , cited before me by the respondent, the principle which governed the custody of a child have been comprehensively dealt with. The Apex Court quoted from a judgement given in Kamla Devi vs. State of H.P., AIR 1987 HP 34 in Para 51 as below:-

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“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 childs 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 Courts view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.”

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In number of judgements, the courts have given an opinion that welfare of the child remains the supreme consideration and due weight should be given to child’s ordinary comfort, prospects of education, growth, over all development etc. and in case the child is mature enough, his/her own wishes may also be found out and given due consideration.

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It may be noted that in the instant case, the corpus was once produced before this Court by the respondent no.4 on the directions of this Court. On that occasion (on 02.03.2021) it was observed as below:-

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“Learned counsel for the parties do not dispute the fact that looking to the age of the petitioner no. 1 (minor of age about 3 1/2 years), it may be difficult to ascertain her wishes and the questions with regard to her guardianship and custody may have to be considered taking into account the facts and circumstances of the case, looking to the welfare of the child.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .

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It seems that owing to immaturity of the child, the Court could not ascertain the child’s own wishes and therefore could not form an opinion and the child was allowed to go back with her father.

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Now, the facts are that admittedly the husband and wife are living separately and they have strained relations between them. How and in what circumstances the child was left in the custody of her father are disputed and may require a deeper inquiry into facts. In my view, it will not be at all proper to go into questions of ‘how, why and what circumstances’ in this habeas corpus petition, more so because regular civil litigations are pending between the two sides. The situation as it is today, the corpus has been staying with her father for quite sometime and on account of her tender age could not show any clear inclination. In my view, it will not be at all appropriate to abruptly take her away from the familiar environment in which she has been staying so far and place her in a new surroundings, which are hitherto unknown to her. Without going into legality of one’s claim and without going deep into conflicting stands relating to the corpus being snatched away from the mother as alleged by her or the corpus being left by her mother, while she departed on her own from her matrimonial home as alleged by respondenthusband, my view is that it will not be in her best interest to unsettle her and displace her or to impose on her the wishes from outside. Any such change may not contribute to her psychological health. There is nothing to suggest that she is not being properly taken care of by her father. Moreover as admittedly cases under section 7 of the Family Court Act and section 25 of the Guardian and Wards Act are pending and being contested by both

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the sides, therefore it shall be appropriate that the matter is decided through regular legal

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process and not through this writ petition.

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The petition is accordingly, dismissed .

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Order Date :- 14.12.2022

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Saif

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Digitally signed by SHAIKH SAIF ABDIN Date: 2022.12.14 17:12:33 IST Reason: Location: High Court of Judicature at Allahabad

Km. Anika(Minor) and Another v. State of U P and 3 Others

Case brief

What is this about?

What did the court decide?

Km. Anika(Minor) and Another v. State of U P and 3 Others

Case brief

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What did the court decide?

What the court decided

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