Hon'ble Mrs. Saroj Yadav,J.
(1) It transpires from the record that Hon'ble the Senior Judge, vide order dated 11.06.2021, has nominated the instant petition to be listed before the Division Bench presided over by one of us (Ramesh Sinha, J.), hence the instant special appeal has been listed before this Court in today's cause list.
(2) As per the report of the Stamp Reporter, the instant special appeal has been filed by the appellant beyond 51 days without filing application for delay duly supported by an affidavit.
(3) In the note appended with the memo of the writ petition, it has been mentioned by the appellant that though he has applied for obtaining certified copy of the order dated 23.03.2021 impugned in the instant special appeal by filing manual folio but on account of intermittent closure of Hon'ble High Court during this period on account of pandemic Covid-19, the same could not be obtained by him. However, the order dated 23.03.2021 impugned in the special appeal appears to be uploaded for the first time and was seen by the father of the appellant on 12.04.2021 on internet and immediately thereafter, he contacted his counsel and prepared the instant special appeal against the order dated 23.03.2021 and filed the same without any delay, hence there is no delay in filing the instant special appeal on the part of the appellant.
(4) On due consideration, we condone the delay in filing the special appeal.
(5) The instant intra court appeal under Chapter VII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by Km. Advika Tandon, aged about 10 years through her father Amit Tandon (hereinafter referred to as "appellant"), challenging the judgment and order dated 23.03.2021 passed by the learned Single Judge in Habeas Corpus No. 13183 of 2020 : Km. Advika Tandon through her father Amit Tandon Vs. State of U.P. and others, whereby the learned Single Judge disposed off the writ petition by providing visiting rights to the father of the detenue (Km. Advika Tandon) in following manner :
"(i) Mr. Amit Tandon can visit the dentnue on any day with prior notice to her mother. He can make telephonic call for short duration every day to converse with the detenue.
(ii) Mother of the detenue would not object on visiting the child or having conversation over telephone or Skype as the case may be.
(iii) Twice in a week the father can speak to the child over Skype for 1/2 hour during each day and during winter and summer vacation, the father can take the child to be with him and her mother for 50% of the vacations, but primarily the detenue would live with her mother.
(iv) The father has stated that he is an entrepreneur and, therefore, he should contribute Rs.10,000/- per month more for the maintenance and study of the detenue for the time being in addition to what he is already contributing."
(6) Shorn off unnecessary details the facts of the case are that the marriage of Amit Tandon (father of the appellant-Km. Advika Tandon) was solemnized with Smt. Parul Tandon (mother of the appellant-Km. Advika Tandon) on 24.11.2004 at Nehru Park Chandralok Colony, Lucknow and out of their wedlock, the dentenu/appellant, Km Advika Tandon, was born on 13.08.2011 and at present, she is ten years' old. On account of differences between Amit Tandon and his wife (respondent no.4-Smt. Parul Tandon), on 26.08.2019, respondent no.4-Smt. Parul Tandon left the matrimonial home situated at Pune and gone to her parental house situated at Lucknow alone. It is alleged that on 26.08.2019, the mother of the the detenue/appellant (respondent no.4) picked her directly from the School, St. Marry School, Pune, and brought her to Lucknow by flight and subsequently dropped message to Amit Tandon "boarded for Lucknow with Advika".
(7) Feeling aggrieved by the action of the respondent no.4 (mother of the detenue), Amit Tandon has approached this Court by filing Habeas Corpus Petition No.13183 of 2020 : Km. Advika Tandon through her father Amit Tandon Vs. State of U.P. and others. The learned Single Judge, after hearing the learned Counsel for the parties and perusing the habeas corpus petition, disposed off the writ petition by providing visiting rights to the father of the detenue (Amit Tandon) in the manner as indicated in paragraph-6 hereinabove, vide judgment and order dated 23.03.2021.
(8) Not satisfied with the aforesaid decision of the learned Single Judge dated 23.03.2021, the instant intra Court appeal has been filed by Km. Advika Tandon through her father Amit Tandon.
(9) Heard Sri Vishnu Kumar Srivastava, learned Counsel for the appellant, Sri Arunendra, learned Additional Government Advocate for the State/respondents no. 1 to 3 and perused the material brought on record.
(10) Ms. Nandita Bharti and Sri Nishant Shukla, learned Counsel for the respondents no. 4 to 8 are not present though the matter has been called in the revised list.
(11) Challenging the impugned order dated 23.03.2021 passed by the learned Single Judge, learned Counsel for the petitioner has argued that the learned Single Judge, while passing the impugned order, has not considered the betterment of the detenue with regard to her education; health, physical comfort/safety and social well being of the child; availability of custodial parent to support child's development; moral/ethical values emanating from custodial parent and broader family environment. He further argued that the learned Single Judge has also not considered the judgments cited by him in support of his case in the light of the facts and circumstances of the case.
(12) Elaborating his submission, learned Counsel for the appellant has submitted that father of the detenue (Amit Tandon) and grand mother of the detenue are the well qualified, sound health and also a natural guardian of the detenue and further they are capable, willing and eager to continue to care and support the detenue in all financial matter as well as emotional respects as they have always done since her birth. He argued that the detenue has a much better and safer with her father (Amit Tandon) than the mother (respondent no.4) as the detenue, while residing at Pune, was in 24 x 7 security via 12 CCTV cameras, 6 guards, enclosed park, play area, club-house, single gated 70 flats community. Moreso, the detenue has an independent room/bath with requisite privacy in her Pune home and her closest school friend at Pune are also residing in the same society.
(13) It has also been argued by the learned Counsel for the appellant that learned Single Judge, while passing the impugned order, has also not considered the fact that the detenue was studying at Pune in a India Top ten ranking i.e. St. Marry's School, Pune and also the fact that the respondent no.4 has disrupted the ongoing high quality education of the detenue at her nationally acclaimed St. Marry's School, Pune. He argued that though the learned Single Judge, while interacting with the detenue, has observed that she was suffering from mental and emotional trauma and she was in a state of confusion, hence the statement given by the detenue that ''she would like to be with her father during vacations but primarily she would like to be with her mother' cannot be relied upon and the same would not be the basis for taking decision regarding custody of the detenue.
(14) Lastly, learned Counsel for the appellant has submitted that the respondent no.4 is not a fit to have custody of the detenue, Km. Advika Tandon, as she chronically suffers from incurable polycystic ovary syndrome (PCOS) and this ailment leads to the low energy levels, frequent fatigue, mood swings, anxiety, psychological morbidity and depression, which are not conducive to child attention and growth, whereas father of the detenue (Amit Tandon) is quite fit for upbringing of the detenue and has no on-going health ailments/medication. He argued that the detenue shares an extremely close bond with her father and her paternal grandmother, who have played a pre-dominant and significant role in her grooming and nursing since her childhood, therefore, the impugned order passed by the learned Single Judge be set-aside and the custody of the detenue be handed over to her father, Amit Tandon.
(15) Refuting the submissions advanced by the learned Counsel for the appellant, learned Counsel for the State has argued that the allegations as alleged in the special appeal are without any basis. He argued that the respondent no.4 is the well educated mother of the detenue and being a mother of a child, she is well capable of taking care of her child. He also argued that the learned Single Judge, while passing the impugned order, has considered every pros and cons of the issue and after considering it as well as submission advanced by the learned Counsel for the parties, has rightly disposed of the writ petition by means of the impugned order while giving visiting rights to the father of the detenue.
(16) Learned Counsel for the State has stated that the plea of the appellant that the judgment cited by him has not been considered by the learned Single Judge, has no substance as the learned Single Judge has considered each and every point as argued by the learned Counsel for the parties at the time of argument. He also argued that the respondent no.4 has no such ailment so as to not take care of the detenue being her mother and, therefore, after considering the health issues of the respondent no.4, the learned Single Judge has rightly handed over the custody of the detenue.
(17) Elaborating his submission, learned Counsel for the State submits that the schooling of the detenue at Lucknow is not bad as has been projected by the father of the detenue as the Lucknow is the capital city of the State and there is large number of reputed educational institutions as well as renowned medical hospitals and further the Lucknow is the well connected city of all over the country as well as foreign facilities. The learned Single Judge has considered all these aspects of the matter and has rightly passed the impugned order and there is no illegality or infirmity in the impugned order.
(18) We have examined the submissions advanced by the learned Counsel for the parties and gone through the impugned judgment as well as perused the record.
(19) The plea of the learned Counsel for the appellant that the judgment cited by the writ petitioner in habeas corpus petition has not been considered by the learned Single Judge, has no substance as we find from the record of the habeas corpus petition that the the writ petitioner/appellant has not mentioned in the petition any judgment to whom he had placed reliance before the learned Single Judge nor the appellant in the instant appeal has mentioned/cited any judgment on which he placed reliance before the learned Single Judge, hence the plea of the appellant in this regard that judgment cited by the writ petition has not be considered by the learned Single Judge, has no substance and is accordingly rejected.
(20) It is not in dispute that in pursuance of the order dated 29.01.2021, the writ petitioner (Amit Tandon), his wife (respondent no.4-Ms. Parul Tandon) and detenue (Advika Tandon) appeared before the learned Single Judge on 24.02.2021, on which date, the learned Single Judge had interacted with the writ petitioner (Amit Tandon) and his wife (respondent no.4-Ms. Parul Tandon) and in their absence with the detenue (Advika Tandon) and after appreciating their respective stand, learned Single Judge has referred the matter to the Mediation and Conciliation Centre of this Court. The order dated 24.02.2021 reads as under :-
""1. In pursuance of the order dated 29.01.2021, father of the detenue, Mr. Amit Tandon, detenue, Km. Advika Tandon and Ms. Parul Tandon, wife of Mr. Amit Tandon are present in the Court.
2. The court has spoken to Mr. Amit Tandon and Ms. Parul Tandon and Km. Advika Tandon, in absence of her parents.
3. The Court is of the view that at this stage, custody of Ms. Advika Tandon cannot be given to the father. It also appears that she is happily living with her mother in Lucknow but she would also like to have love and affection of her father. Km. Advika Tandon has informed the Court that she speaks with her father over phone and twice a week on Skype.
4. Ms.Parul Tandon further states that the father of the child can visit her at any time with prior notice and he can make telephone call to her for short duration anyday. She will never object regarding visiting the father to meet the child or having conversation over telephone or Skype as the case may be. It is also broadly agreed that the child would like to visit her father during long vacations and stay with her grand mother. But, permanently at this stage, she would like to live with her mother.
5. Keeping broad consensus between the parties, in order to formalize the terms of settlement between the parties with respect to custody and visitation in respect of Km. Advika Tandon, it would be appropriate to refer this matter before Mediation and Conciliation Centre of this Court.
6. Both the parties have agreed to be present before the Mediation and Conciliation Centre of this Court on 25.02.2021 at 2:30 P.M. Ms. Parul Tandon is directed to bring Km. Advika Tandon before the Mediation Centre.
7. Learned mediator is requested to make his/her all out efforts to get the matter settled between the parties and reduce the terms of settlement in writing and place it before the Court for passing appropriate order.
8. List this case on 04.03.2021 along with report of Mediation Centre.
9. Today and tomorrow, the father can take the child to treat her anywhere of her choice."
(21) It appears that the mediation proceedings between the parties had became failed and, as such, the matter was again listed before the learned Single Judge. Thereafter, the learned Single Judge tried to settle the matter between the parties amicably keeping in view the paramount interest of the child but the matter could not be settled amicably between the parties. In these circumstances, the learned Single Judge proceeded to hear the parties.
(22) After hearing the learned Counsel for the parties and considering the fact that the marriage between Amit Tandon and Parul Tandon has been irretrievably broken down and on this count, it is the detenue who is suffering from mental and emotional trauma and is in a state of confusion because of quarreling of her parents over her custody, the learned Single Judge opined that on the issue, the Court ought to keep in mind the paramount interest of the child while deciding the question of custody of the child and, therefore, on placing reliance upon the judgment of the Apex Court in Elizabeth Dinshaw Vs. Arvand M. Dinshaw : (1987) 1 SCC 42, Lahari Sakhamuri Vs. Sobhan Kodali : (2019) 7 SCC 311, Nithya Anand Raghavan Vs. State (NCT of Delhi) : (2017) 8 SCC 454, Kanika Goel Vs. State (NCT of Delhi) : (2018) 9 SCC 578, Yashita Sahu Vs. State of Rajasthan and Nilanjan Bhattacharya Vs. State of Karnataka (Civil Appeal No. 3284 of 2020) and the judgment of this Court in Hebeas Corpus Petition No. 450 of 2020 :Master Advik Sharma Vs. State of U.P., the learned Single Judge has recorded the following findings :-
"41. In the present case, the mother of detenue is fully qualified having MBA and gainfully employed. Except from minor health issues, she does not suffer from any major health problem. The court cannot lose sight of the fact that the detenue is minor girl child. Lucknow is not a small place. It is a capital of the biggest State in the country and has good educational Institutions as well as medical facilities. It is well connected with all over the country as well as foreign countries. The schooling in Lucknow is not bad as projected by the father of the detenue. At this young age, the detenue requires love and affection of the mother as well as father. Since, the parents have decided to live separately, the Court has to consider where the paramount interest of the child lies and how it can be best secured while deciding the question the custody.
42. The father of the petitioner is contributing only Rs.10,000/- per month only. When the Court asked him whether he is ready to contribute something more, he specifically denied and said that he did not have means to contribute more. The mother, however, has shown generously to accommodate the father of detenue to provide the visitation rights. She had agreed to give custody of the detenue for two days in a month and custody for 50% of the summer as well as winter vacations so that child can live exclusively with the father of the petitioner with excess to mother. The father has not been consistent with his stand and he changed his stand after broadly agreeing before the Court.
43. This Court does not find anything from the pleadings or the submissions which would disentitle the mother to have the custody of the child.
44. Considering the age, sex of the child and she being in the custody of mother who is not incapacitated in any manner and gainfully employed, being well qualified, it would not be appropriate to give the custody of the child to the father, Amit Tandon. In interaction with the Court, the detenue expressed that she would like to be with father during vacations but primarily she would like to be with her mother. "
(23) Considering all the aforesaid aspects of the matter, the learned Single Judge disposed of the habeas corpus petition by providing the visiting rights to the father of the detenue in the manner as stated hereinabove in para-6 to the writ petition.
(24) It transpires from the impugned order that the learned Single Judge, while disposing of Habeas Corpus No. 13183 of 2020, took note of the age, sex of the detenue and educational qualification and gainful employment of the mother of the detenue and also the expression of detenue while interaction that she would like to be with father during vacations but primarily she would like to be with her mother. The learned Single Judge, on considering the welfare of the child, opined that it would not be appropriate to give the custody of the child to the father (Amit Tandon).
(25) Learned Counsel for the appellant has failed to point out any illegality or infirmity in the impugned order so as to interfere in the matter and further he has also not given any plausible reason to the effect that the wife of the appellant (Parul Tandon) has not properly taken care of his minor child (Km. Advika Tandon).
(26) Taking into consideration the totality of the facts and circumstances of the case and also findings recorded by the learned Single Judge while disposing of the Habeas Corpus No. 13183 of 2020, we are of the considered view that there is no illegality or infirmity in the impugned order. The learned Single Judge has recorded findings of fact on the basis of records, which, in our view, are cogent one as in the matter of custody of the minor child, the paramount importance should be given to the welfare of the minor child.
(27) Accordingly, the instant special appeal lacks merit and is, accordingly, dismissed.
Order Date :- 30.7.2021 Arun/Ajit/-