In the revised call none responds for the respondent nos. 5 and 6.
Heard Sri P.K. Sinha and Sri R.R. Kushwaha, learned counsel appearing for the petitioners.
By the instant petition petitioner no.2, mother of petitioner no.1, a female child of about 4 years, seeks change of custody of her daughter from respondent nos. 5 and 6, who happens to be her paternal grandmother and grandfather, from them to her on the ground that the husband of petitioner no.2 had died on 11.8.2014 leaving behind him the corpus and petitioner no.2, his wife. On 30.9.2014 respondent nos. 5 and 6 with the help of others had forcibly taken the corpus with them from the possession of the petitioner no.2. They have detained the corpus illegally.
On behalf of respondent nos.5 and 6 counter affidavit has been filed whereby averments contained in the writ petition have been denied except that the father of the corpus married with petitioner no.2, who gave birth to the corpus. It has been further stated in the counter affidavit that petitioner no.2 had deserted her sick husband leaving behind her five months old daughter, petitioner no.1 and started to live with some other person.Thereafter, petitioner no.2 and her husband agreed upon for divorce by mutual consent. The petitioner no.2 and her husband had also filed a divorce petition on 2.7.2013 by mutual consent under section 13 B of the Hindu Marriage Act.
It has been further stated that the deponent moved before the ACM IInd, Kanpur Nagar for the custody of the corpus on the basis of agreement dated 4.6.2014 and the father of the corpus by a notarial agreement had appointed his mother and brother Dev Kumar as guardian of the corpus and they have raised the child. Petitioner no.2 is unreliable person, she is patient of HIV, she had moved a petition under Guardian and Wards Act before the court of Principle Judge, Family Court Kanpur Nagar.
On behalf of petitioner a rejoinder affidavit has been filed in which averments contained in the counter affidavit have been generally denied and it has been specifically stated that due to caste bias contesting respondents had not treated her well. In the notarial agreement father of the corpus had given visitation right to the petitioner no.2 and in case his brother Dev Kumar failed to maintain petitioner no.1, the corpus would be maintained by the petitioner no.2. Husband of the petitioner no. 2 died on 11th August, 2014. On 30th September, 2014 corpus was kidnapped by the contesting respondents. Since the corpus being female child of 5 years of age, petitioner no. 2 being natural mother has a preferential right for the custody of the minor. On the point of her being patient of HIV the respondent nos.5 and 6 were put to strict proof.
Thereafter, on behalf of respondent nos.5 and 6 supplementary counter affidavit has been filed wherein averments contained in rejoinder affidavit have been denied generally and it has been specifically stated that on 23.4.2015 corpus was produced before this Court in pursuance of the Courts' order dated 30.1.2015. Her statement was recorded and she opted to live with her dadi. The corpus was allowed to go with respondent no.5 and petitioner no. 2 was granted visitation right. But on 20.6.2015 in absence of the deponent petitioner no.2 had taken the corpus with her and disappeared. Police was informed, petitioner no.2 was approached on mobile phone but she deliberately disobeyed the Court's order. Thereafter, ACMM, Kanpur Nagar was approached, but up to 22nd July, 2015 the corpus was not handed over to the deponent.
On 6th August, 2015 another affidavit has been filed on behalf of petitioners whereby averments contained in the previous supplementary counter affidavit have been denied and it has been stated that during the life time of the father of the corpus couple lived in a rented accommodation where the corpus was born. The respondent nos.5 and 6 and his family members were implicated in a murder case, respondent nos. 5 and 6 were arrested. They handed over the corpus to the petitioner no.2 for caring her, who was admitted in Oxford Model Senior Secondary School. Petitioner no.2 does the business of sarees and cosmetics, she is an income tax payee she had purchased a new house. Respondent nos.5 and 6 subsist on meagre amount earned by doing the work of meson even they could not marry their daughter, all three sons are labourer and criminal minded, they would not be able to take care of the corpus and look after her welfare.
On behalf of respondent nos. 5 and 6 a supplementary counter affidavit has been filed, whereby contents of affidavit filed on behalf of petitioner no.2 have been denied and earlier averments have been reiterated, it has been specifically denied that respondent nos. 5 and 6 were never arrested in criminal case. It was a concocted story to hide her misdemeanour by disobeying Court's order dated 19th May, 2015, the petitioner no. 2 had disobeyed the Court's order and taken the corpus with her. The corpus is studying in class UKG in Tagore Vidya Mandir, her school name is Rhydima Chauhan. It has been further stated that earlier petitioner no.2 claimed that she was working in a school vide salary of Rs. 15,000/- per month. Now she claims to be a business women. Actually she leads an immoral life. The deponent's husband is a building contractor and her sons are also earning substantial amount.
Thereafter, on behalf of petitioner no.2 another supplementary rejoinder affidavit has been filed to enable the Court to ascertain that she had purchased a house on 23rd November, 2013, a copy of the sale deed had been annexed with the affidavit.
Learned counsel appearing for the petitioners Sri P.K. Sinha submits that it is an admitted case that corpus is below 5 years of age, she is a female child, petitioner no.2 is the natural mother and she has preferential right for the custody of the person of the corpus. He further submits that no decree of divorce was passed on the basis of petition moved under section 13B of the Hindu Marriage Act by the competent Court. He further submits that in the matter of change of custody paramount consideration always welfare of the minor and on 12.07.2016 the corpus showed her willingness to go with her mother.
Thus, thrust of arguments is that the corpus likes to be with her mother, the law also recognizes the preferential right of the petitioner no.2 and considering the overall facts, financial position other surroundings circumstances and the efforts made it would clearly transpire that welfare of the child will be best looked after by her mother. In support of his argument he has referred the case of Nil Ratan Kundu Vs. Abhjit Kundu AIR 2009 SC 732, in this case the Hon'ble Apex Court while dealing with the sections 7 and 17 of the Guardians and Wards Act and section 26 of the Hindu Marriage Act and observed the following:-
"26.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 custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. it is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases is neithher 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 parents 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. Order of Courts below not in consonance with law."
Here pendency of petition for the custody of the minor sought under the Guardians and Wards Act, which is still pending in family Court Kanpur Nagar is not in dispute. Thus here it is not for this Court to comparatively examine as to whether who has superior right for the custody of the corpus. In the writ of habeas corpus, the Court is required to see, in the matter of transfer of custody of minor children on two points, one is illegal detention of the minor and the other whether the welfare of the child requires that the custody should be changed and the child should be given in the custody of person seeking it vide Sayed Saleemudeen Ruksana (2001) 5 SCC 247.
In the present case, though case of petitioner no. 2 is that corpus was forcibly kidnapped on 30th September, 2014 soon after death of her father but on behalf of respondent nos. 5 and 6 it has been stated that petitioner no.2 before death of her husband had left him and went with someone else for this reason they got the custody of the minor. These are two rivals contentions require enquiry into disputed question of facts, which this Court would not inclined to go into as the matter for deciding custody of the person is pending before the competent Court. At present suffice is for me to observe that when the child was produced before this Court on 19th May, 2015 she was produced by respondent no.5 and corpus gave a statement, which substantiates the above facts, is being quoted below:-
"The Court has put some questions to Km. Jyoti, corpus, who stated the Court that presently she is residing with her grand-mother and also wants to go and live with her."
This statement was made in the presence of mother of the corpus, this fact was noticed by the Court on that day. Further the petitioner no.2 had preferred to evade the specific averments made about her conduct about the events happened on 20th June, 2015 and subsequently thereto in reference to her disappearance with the corpus. I think the way respondent no.5 had approached ACM II Kanpur Nagar and conducted herself that shows atleast she can be called to be de-facto guardian of the minor, my observation would not mean to defeat the superior right of the petitioner no.2 being natural mother, my observation is confined only on the point of illegal detention and on the basis of this point I hold that the corpus has not been illegally detained by respondent nos. 5 and 6.
Welfare of the minor is also a complex question specially keeping in view the imputations made by respondent no.5, social and financial background are more or less about the same and on their basis welfare of the minor cannot be determined in this jurisdiction. The child when appeared before this Court was willing to live with her dadi and she call her as maa, she has stated to go to school, she is getting education. I don't think in the present matter there is any cause for anxiety to change the present custody on the basis of disputed question of facts, therefore, I leave this for the Principle Judge Family Court to decide, the petition is disposed of with this observations that the Principle Judge Family Court should expeditiously decide the case of for the custody of the child under Guardian and Wards Act, which is said to be pending in his Court, whenever certified copy of this order is filed before it and he shall make every endeavour to dispose of the same within 3 months. The observation made in the order shall have no bearing in the matter of pending before the Principal Judge, Family Court, Kanpur Nagar.
Order Date :- 30.11.2016 Arti Sharma