1. Heard Sri Satyendra Narayn Singh and Sri Ashutosh Pandey, learned counsel for the petitioners and Sri Ishwar Chandra Tyagi, learned counsel for the opposite party no.2 and Sri Azad Singh and Sri Abhinav Prasad, learned A.G.A. for the State-respondent.
2. This Habeas corpus writ petition has been filed on behalf of corpus namely Arnav by petitioner no.2/father, with the following prayer:-
"(i). Issue a writ, order or direction in the nature of habeas corpus directing the respondent nos.2 to 4 to produce the corpus/petitioner no.1 before this Hon'ble Court and handover him to the petitioner no.2.
(ii). Issue a writ, order or direction in the nature of habeas corpus directing the respondent nos.2 to 4 to produce the petitioner no.1 i.e. corpus before this Hon'ble Court and release the petitioner no.1/corpus from the illegal detention of respondent nos.2 to 4 and hand over the petitioner no.1 to the petitioner no.2 i.e. father Dr. Abhijat Kumar.
(iii). Issue a writ, order or direction in the nature of mandamus protecting the interest of the petitioner, which this Hon'ble Court deem fit and proper under the facts and circumstances of the case."
3. The facts of the case in capsulated form are that the petitioner no.2 who is the father of petitioner no.1 having qualification of M.B.B.S. (M.S.) Surgery working as consultant surgeon at Navyug Medical Centre Pvt. Ltd., which is his own hospital and is also working as Senior Resident at Basti Medical College, Basti. The marriage of the petitioner no.2 namely Dr. Abhijat Kumar was solemnized with the respondent no.2 namely Dr. Sweta on 31.1.2009, which was registered before the Registrar, Hindu Marriage District Basti on 19.10.2016 and out of the said wedlock a male child i.e. corpus was born on 7.7.2012. The respondent no.2 was working as Doctor in Navyug Medical Centre and she was also one of the Director in the aforesaid medical centre alongwith petitioner no.2 and his parents Dr. Naveen Kumar and Dr. Shashi Srivastava. The petitioner no.1 is getting his education in Class-II, Section A at St. Basil's School.
4. The respondent no.2 had moved an application to C.M.S., V.R.T.K. mentioning therein that due to some personal reasons she cannot attend the hospital therefore, the leave may be granted w.e.f. 19.8.2019 to 31.8.2019. The respondent no.2 also sent a letter of resignation from service at C.M.S., V.R.T.K., District Women Hospital, Basti, mentioning therein that she is unable to work at Basti, reference is made to annexure-5 and 6 to the affidavit accompanying this habeas corpus writ petition.
5. Pursuant to orders dated 14.10.2019 and 14.11.2019 the corpus namely Arnav (Minor) has been produced by her mother i.e. respondent no.2, both have been identified by their counsel Sri Ishwar Chandra Tyagi, representing respondent no.2.
6. On being asked the corpus informed that his name is Aarav.
On being asked, with whom he is living right now, the corpus informed that he is living with his mother.
On being asked, with whom he wants to live, the corpus informed that he wants to live with his mother.
7. The counsel for the respondent contend that the writ of habeas corpus cannot be issued when efficacious alternative remedy is available to the petitioner No.2 under Hindu Minority and Guardianship Act, 1956. It is also contended that the question of custody of the minor child is to be decided not on consideration of the legal rights of the parties; but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the respondents who are taking care of the child since more than a year, they alone would be entitled to have the custody of the child in preference to petitioner No.1-father of the child.
8. I have carefully considered the rival contentions and statement of the corpus recorded herein above.
9. 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.
10. 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.
11. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. 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 of 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.
12. In the matter of Tejaswini Gaud and Ors. Vs. Shekhar Jagdish Prasad Tewari and others reported in (2019) 7 Supreme Court Cases 42 My Lord's of The Apex Court have observed as follows:-
"25. Welfare of the minor child is the paramount consideration:- The court while deciding the child custody cases is not 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.
26. 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, 8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97 education, intellectual development and favourable surroundings, in Nil Ratan Kundu9, it was held as under:-
"49. In Goverdhan Lal v. Gajendra Kumar, 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.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, 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.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court observed:
"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." 9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
52. 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 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."
27. Reliance was placed upon Gaurav Nagpal10, where the Supreme Court held as under:-
"32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148) 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." (emphasis supplied) ???
50. 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 10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 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 (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.
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 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.
28. Contending that however legitimate the claims of the parties are, they are subject to the interest and welfare of the child, in Rosy Jacob11, this Court has observed that:-
"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." ??..
"15. .... The children are not mere chattels : nor are they mere play-things 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 11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 have erred in reversing him on grounds which we are unable to appreciate."
13. In this view of the matter as well as considering the statement of the corpus made before this Court, which is noted above, this habeas corpus writ petition fails and is dismissed, accordingly.
14. However, till the child is settled down in the atmosphere of the second respondent-mother's house, the petitioner No.2 i.e. father alongwith grand parents of the corpus shall visit the child at the second respondent's house on Saturdays or Sundays between 11:00 A.M. to 2:00 P.M. till the corpus attains the age of 10 years. The second respondent shall ensure the comfort of petitioner No.2 as well as the grand parents of the corpus during such time of their stay in her house.
15. The petitioner No.2 is also restrained from indulging into any act of violence with the second respondent or with the corpus and in case he is found in violation of the order of this Court that is being passed today, he will be personally answerable to this Court.
16. It is made clear that dismissal of writ petition shall not preclude the petitioner from seeking remedy available to him in law. Any observation made by this Court, while deciding this writ petition, shall not come in the way of either party.
17. The amount of Rs.15,000/- deposited by the father of the corpus/petitioner no.1 shall be paid to the mother of corpus namely Dr. Sweta by the registry of this Court after due verification through her counsel.
Order Date :- 28.11.2019 Dev/-