Heard learned counsel for the petitioner, learned counsel for the respondents no.1 and 2 and learned A.G.A. for the State. Vide order dated 17.11.2014, the question, which was framed as a preliminary question is;
While exercising jurisdiction under Article 226 of the Constitution of India for deciding habeas corpus writ petition the question of custody of a minor child would be decided by the High Court on the sole ground of relationship or the welfare of child would be the paramount consideration?
In this case, the next friend Vijay Videshi of the alleged detenue Nandini @ Nikki aged about three years, is father and claiming himself to be the natural guardian. The alleged detenue is said to have been in the custody of respondent no.1 Smt. Shanti and respondent no.2 Shitla Prasad, who are the maternal grandmother (Nani) and material uncle (Mama) respectively of the alleged detenue.
The contention of learned counsel for the petitioner is that if the natural guardian is alive, the other person cannot be allowed to keep a child, even if, they are the parents or other family members of the mother of the child. He relied upon the judgement of this Court in case of Saroj Devi and others Vs. State of U.P. and others; 2013 (2) JIC 652 (All)].
Learned counsel for the respondents no.1 and 2 submits that so far as the question regarding custody of a minor child is concerned, the paramount consideration would be welfare of the child, irrespective of fact that proceedings are in the form of habeas corpus petition or under the Guardians And Wards Act or any other statute.
The Apex Court in the case of Dr. Mrs. Veena Kapoor Vs. Varinder Kumar Kapoor; AIR 1982 SC 792 while deciding the writ of habeas corpus observed in para 2 of the said judgement as under:
"2. It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. "
Similar view has also been taken by the Apex Court in the cases of Syed Saleemuddin Vs. Dr. Rukhsana and others; (2001) 5 SCC 247 and Rajesh K. Gupta Vs. Ram Gopal Agarwala and others; (2005) 5 SCC 359.
Even in the judgement cited by learned counsel for the petitioner, the Court after considering the welfare of child passed the order in favour of mother regarding custody in preference over the right of her husband.
In view of above, this petition should have been decided after considering the welfare of the child and not on the basis of legal right.
The parties may adduce their evidence in respect of their respective claims by filing affidavits within four weeks from today after exchanging the same.
List after four weeks.
Dated: 27.11.2014 akverma