1. The flames emanating from bitter marital discord have reached this Court by means of instant writ petition filed by the mother for seeking custody of a minor daughter, from her husband.
2. It has been submitted by Sri Chandra Shekhar Sinha learned counsel for petitioner that Dr Ayushi Singh, petitioner no.2 (hereinafter referred to as ''M') was married to opposite party no.1 Dr. Abhinandan Singh, (hereinafter referred to as ''F') on 14/02/2014 according to Hindu rites and rituals at Lucknow. A daughter, petitioner no.1 (hereinafter referred to as ''D') was born out of the wedlock, who's date of birth is disputed as according to ''M', it is 08/08/2016 while according to ''F', it is 08/08/2015. ''M' has stated that serious differences between them commenced soon after the marriage including harassment and physical torture by ''F' and his family members on her as well as her parents and brother. She was dropped by ''F' to her maternal home on 25/12/2018 along with her minor daughter, and since then they are living together with the parents of ''M'. ''F' thereafter used to visit the maternal house of ''M' to meet ''D', and such visits were never objected by ''M' or her parents. On 10/01/2020 ''F' visited the maternal home of ''M' between 7- 8 PM and told ''M' that his father wants to meet ''D' and that he is sitting in the car. ''F' took ''D' from the custody of ''M' and went to the car where his father was sitting and drove away with ''D'. ''M' who was following ''F', on seeing him drive away with her daughter raised an alarm but by that time ''F' had left with ''D'. Subsequently, on several occasions, ''M' requested ''F' to return ''D', but it was of no avail, and in the aforesaid circumstances she has preferred the present writ petition seeking a direction in nature of habeas corpus to ''F' to give custody of ''D' to ''M'.
3. ''D' has been admitted by the efforts of both the parents to a prestigious girl's school in Lucknow, La Martinere College, where she is presently studying.
4. It has been submitted by Sri Chandra Shekar Sinha, learned counsel appearing for the petitioner, that after the separation between ''M' and ''F', the minor daughter ''D' is living at her maternal home since 25/12/2018. ''F', the father had full visitation rights and was regularly visiting ''D' and no obstruction was ever created. He has further submitted that the minor daughter was in the custody and guardianship of her mother and there was no dispute in this regard between ''M' and ''F'. The act of forcibly taking away ''D' out of the custody of ''M' would amount to abduction and cannot be termed as legal, and therefore submits that the writ of habeas corpus would lie to reunite the minor daughter with her mother.
5. It has been stated that ''M' has completed Bachelor of Dental Sciences (BDS) course in 2013, and is presently pursuing MDS course from Lucknow, while ''F' has also completed MBBS course in 2013 and is presently pursuing MD (Neuro Psychiatry) course from Mahatma Gandhi Medical College, Pondicherry. ''D' is staying at Lucknow along with the grandfather and grandmother. The grandmother often stays at Delhi with the sister of ''F', and therefore ''D' is being looked after by her grandfather.
6. It has further been submitted by ''M' that troubles in the marriage erupted from the very first day when ''F' came home in an inebriated condition, and subsequently on their honeymoon in Fiji and Hong Kong where he consumed large quantities of liquor and started physically and mentally torturing ''M'. She has given further details of the physical torture by ''F' and also the fact that he is suffering from "Mental and Behavioral Disorder". It has further been stated that the said illness reached a very high level and therefore ''F' was admitted to various nursing homes as well as King George Medical University from 08/03/2018 to 14/03/2018 and further was also admitted for 15 days in "Nirwan De-addiction Centre" in Lucknow as he was habitual of heavy consumption of alcohol. In this regard, it has been stated in the writ petition that the aforesaid facts need to be verified after summoning the record from the de-addiction Centre. It has also been stated that ''F' was under treatment from "National Institute of Mental Health and Neurosciences" (NIMHANS) Bangalore, but ''M' could not get further details of the treatment due to doctor-patient confidentiality.
7. Sri I.B. Singh, Senior Advocate appearing for ''F' has raised a preliminary objection that the present petition is not maintainable as there exist an efficacious alternative remedy before the civil courts under section 6 of The Guardians and Wards Act, 1890. In reply to the allegation that ''D' was taken away forcibly and without consent of ''M', it has been stated that when ''F' reached the maternal house of 'M' on 10/01/2020 he found that ''D' was suffering from high fever as well as shivering and respiratory distress. She was immediately taken to one Dr M.K.Singh, who diagnosed her with "bronco Pneumonia". He has further submitted that this clearly shows that ''M' was not taking proper care of her daughter and in support of his allegations he has annexed the medical report and findings of Dr M.K.Singh. ''M' has denied the said allegations about the ailments of her minor daughter and stated that she herself is a Doctor and would not be negligent about her own daughter. It was further submitted that Dr M.K.Singh is closely related (real Phupha) to ''F' and the prescriptions are doctored.
8. Regarding the date of birth of ''D', it has been stated by ''F', that she was born on 08/08/2015 in a hospital named as Shakun Maternity Home, Lucknow and at the time of filing of the affidavit in this petition, ''D' was just 4 years and 11 months old. ''F' has denied that he is a heavy drinker and also that he or his family has ever mentally or physically tortured ''M'. It has also been stated that ''M' does not have financial resources to take care of their daughter.
9.The relationship between the two families has come to such a point that cross FIRs have been lodged against each other, serious efforts to resolve the dispute through the process of mediation by the High Court has failed, and even during the hearings, the counsels of both the parties clearly stated that there was no scope of any settlement at this stage.
10. I have heard the counsel of the parties and perused the record. Preliminary objection has been raised by ''F' stating that the present writ petition for habeas corpus seeking the custody of the minor daughter would not maintainable inasmuch as there exists an efficacious alternative remedy under the Guardians and Wards Act, 1890. It has been stated that in exercise of writ jurisdiction for relief of habeas corpus, it has to be demonstrated that the custody of the detenue is illegal. It has been submitted that the father is the natural guardian of the minor girl, and therefore the custody cannot be held to be illegal and therefore such a prayer as sought for by the petitioners cannot be granted.
11. The question as to whether the High Court can issue a writ of habeas corpus for seeking custody of a minor child is no longer res integra and has been dealt with by the Hon'ble Supreme Court in various judgments.
12. In the case of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67 the Supreme court has held:-
"10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13], Nithya Anand Raghavan v. State (NCT of Delhi) [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] and Lahari Sakhamuri v. Sobhan Kodali [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable.
11. We need not refer to all decisions in this regard but it would be apposite to refer to the following observations from the judgment in Nithya Anand Raghavan [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] : (SCC pp. 479-80, paras 46-47) "46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition)."
12. Further, in Kanika Goel v. State (NCT of Delhi) [Kanika Goel v. State (NCT of Delhi), (2018) 9 SCC 578 : (2018) 4 SCC (Civ) 411] , it was held as follows : (SCC p. 609, para 34) "34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful."
13. In light of the aforesaid decisions, it is clear that the writ of Habeas Corpus in the facts of the present case would be maintainable and the preliminary objection taken by ''F' deserve to be rejected.
14. This brings us directly to the merits of the matter which require a more detailed examination of the facts placed before this court, and determine as to what would be in the best interest of the child.
15. ''M' and ''F' stayed together after marriage till 25/12/2018 and subsequently ''D' and ''M' were living in the maternal home of ''M'. ''F' continuously visited and met ''D'. It is not the case of the ''F' that he was ever denied visitation rights by ''M'. ''D' was admitted to ''Footprints' for pre-schooling in June 2019 and was subsequently admitted to La Martinere Girls College, Lucknow. It is on 10/01/2020 that ''F' during one of his visits to meet ''D' at the maternal house of ''M' by deploying subterfuge took ''D' out of the custody of ''M', without her consent or informing ''M'. It is stated that ''F' discovered that ''D' was suffering from high fever and therefore took to a doctor whose medical report has been annexed herewith. ''M' has made fervent pleas to ''F' to return ''D', but he did not show any inclination.
16. In the aforesaid facts and circumstances of the case the moot question is whether the detention of ''D' by ''F' can be held to be improper, illegal or without authority of law so as to invoke the writ jurisdiction of this court for grant of writ of habeas corpus.
17. Due consideration must be given to section 6 of the Hindu Minority and Guardianship Act, "6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-- (
a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother."
18. According to section 6(a), the father and mother are the natural guardians of a minor, but the mother is the preferred guardian where the minor is below the age of 5 years. In the writ petition the age of ''D' has been shown to be 3 ½ years. In the counter affidavit it has been stated that the age of ''D' is 4 years and 11 months, and in its support the birth certificate of Shakun Maternity Home has been annexed indicating the date of birth to be 08/08/2015. This fact has been contested in the rejoinder affidavit where the date of birth has been asserted to be 08/08/2016 and in support of the same birth certificate issued by Nagar Nigam has been annexed.
19. Considering the rival claims concerning the date of birth, irrespective of the versions presented by either ''M' or ''F', ''D' is admittedly below the age of 5.
20. In the present case the age of ''D' is of relevance, for the applicability of section 6(a) of the Hindu Minority and Guardianship Act, 1956, which postulates that the custody of an infant or a child of tender age, should be given to his/her mother unless the father discloses cogent reasons which indicate that if the guardianship of the child is given to the mother, the child's welfare could be in jeopardy. The said provision carves out an exception of custody, in contradiction to guardianship, and then specifies that the custody should be given to the mother so long as the child is below 5 years of age.
21. In the present case the uncontested facts are as follows:-
1. The age of ''D' at the time of filing of the writ petition was below 5 years.
2. ''M' and ''D' were living together since their marriage in February 2014 till December 2018 when they separated.
3. After the separation, ''D' and ''M' were living together at the parental home of ''M', till 10/01/2020 when ''D' was taken away by ''F' without consent of ''M'.
4. During the period of separation, ''F' regularly visited and met ''D' at the parental home of ''M'.
5. ''M' is pursuing her MDS from Lucknow while ''F' is pursuing MD (Neuro Psychiatry) from Pondicherry.
6. ''D' is living with her grandparents at Lucknow and is studying in La Martinere Girls College, Lucknow.
7. ''D' appeared before this court and stated that she was equally happy and comfortable with her mother as well as with her grandparents.
22. In the aforesaid circumstances, it is established and accepted by all the parties that the mother and daughter were living together after their separation. On 10.01.2020 the daughter was taken out of the custody of the mother by the father without her consent. This taking out of the custody of the mother, without any judicial intervention is clearly arbitrary and illegal and cannot have the sanction of law. In case, ''F' wanted the custody of ''D' and was of the opinion that ''M' was not taking care of ''D' or that she was negligent in her upbringing, then it was open for him to move an appropriate application under the Guardian and Wards Act, 1890, or Hindu minority and Guardianship Act and should have placed all the facts before the court, awaiting the outcome of the same, rather than forcefully and unilaterally taking the custody of ''D'. When the statute provides for a mechanism for the resolution of a dispute, then it was necessary for ''F' to invoke the same, and without taking recourse to law and in taking the custody of ''D', the acts of ''F' are held to be absolutely illegal and without the sanction of law.
23. Considering the facts of the case, in light of the provisions contained in section 6 and 25 of the Hindu Minority & Guardianship Act it becomes clear that, the right of the father to be the guardian of the minor is preserved, but it carves out an exception of interim custody, in contradiction of guardianship, and specifies that custody should be given to the mother so long as the child was below 5 years of age. It is open for the father to rebut the presumption and prove that mother is somehow incapacitated from acting as the Guardian even when the girl child was below 5 years. The father in his counter affidavit has not placed any substantial material from which it can be established that the mother is unsuitable in any regard.
24. The other aspect which deserves to be noticed is that when the father had acquiesced to the custody of his daughter with her mother, coupled with the fact that he constantly met his daughter during this period and he never objected to the said arrangement, therefore, in such circumstances, he cannot unilaterally be permitted to change the settled position and take the custody of his minor daughter without the consent of the mother. This apart from being illegal and arbitrary, can also be very traumatic for the child who is already witnessing the acrimonious relationship between her parents. In case if this unilateral act of taking into custody of the minor is permitted, it may lead to a very unsavory situation where the Guardian in whose custody the minor is, would be reluctant to even permit visitation rights to the other guardian, as there will always remain a real and apparent threat of deprivation of the custody by the other guardian.
25. With regard to restitution of custody of minor who is removed from the custody of a guardian, section 25 of the Guardians and Wards Act 1890, provides as under:-
"(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882)1.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."
26. In the facts of the present case, it was always open for the father to move an appropriate application for being appointed as a guardian and could have also moved an appropriate application under section 25 of Guardians and Wards Act 1956 for being securing custody of ''D'. In the counter affidavit filed by ''F', he has raised objection regarding the maintainability of the petition stating that ''M' should follow the procedure established by law. ''F' who has himself, without consent of ''M' taken ''D' out of the lawful custody of her mother, cannot be permitted to raise such an argument, especially, when he himself chose not to follow the procedure established by law, and unilaterally took ''D' out of the lawful custody of ''M'.
27. This court in the case of Vijai Kumar Sharma and others vs State of U.P. and others I(1991)DMC 244 while considering whether the father in taking a minor out of the custody of his mother would be guilty under Section 364 of the Indian Penal Code, this Court held that the father cannot be held guilty for abduction as it cannot be said that the child had been removed from the custody of the natural guardian but held that the conduct of the accused persons in taking away the child without consent of the mother amounted to cruelty as defined under section 498A IPC. Such an act undoubtly disrupts the peaceful life of the minor and militates against his/her healthy mental growth, and therefore this court exercising the jurisdiction of parens patriae where it is the bounden duty of the Court to protect the interest of the minor, and accordingly the act of ''F' in taking ''D' out of custody of ''M' is held to be illegal.
28. The Hon'ble Supreme Court while considering this aspect in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 at page 425 has observed "42. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] , this Court held that the object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of the ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of the minor. In considering the question of welfare of a minor, due regard has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. The Court further observed that merely because there is no defect in his personal care and his attachment for his children, which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. The Court also observed that children are not mere chattels, nor are they toys for their parents. The absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions, must yield to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of 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 the welfare of the minor children and the rights of their respective parents over them."
29. The mother in the petition has stated that she has taken good care of ''D' as any mother would, and also admitted her to Pre-Schooling Institute "Footprints" where ''D' performed very well. That apart from the mother who is entitled to the custody of minor daughter till the age of 5 years, does not dis-entitle her to continue with the custody even after attaining the age of 5 years where it can be shown that it is in the best interest and welfare of the child. In the counter affidavit, ''F' has levelled certain allegations, none of which could persuade this court from coming to a conclusion that ''M' was in any manner dis-entitled or incapacitated from being given the custody of ''D'. The medical prescriptions attached with the counter affidavit wherein it has sought to be established that ''D' was suffering from "bronco pneumonia" also does not inspire much confidence, as the consulting Doctor is closely related to ''F', the fitness certificate is undated, and even otherwise it is difficult to fathom that the mother who is herself is a doctor would not venture to medically neglect her minor daughter.
30. ''M' being a qualified doctor, and also pursuing her MDS in Lucknow and is living with her parents can very well look after the interests and welfare of ''D'. ''M' who is pursuing her MDS would also be receiving stipend/salary during this period from which she can adequately support ''D'.
31. This court also notices the fact that the custody of ''D' is actually with Mr Anil Singh, her grandfather at Lucknow and not with ''F' as he is away, studying in Pondicherry. Even during the court hearings Mr Anil Singh has attended the hearings in absence of ''F'. Even when the court required presence of ''D', she was brought to Court by Mr Anil Singh. Mr Anil Singh, who is the grandfather of ''D' does not have any legal right to the custody of ''D' and cannot be entitled to continue with the custody of ''D' as, firstly he has not approached this court claiming guardianship of ''D', and secondly the mother being a natural guardian is legally entitled to the custody of ''D'.
32. This court is of the considered opinion that one parent single-handedly deciding the physical and emotional environment of a child might not result as the best option for the child. If an arrangement was agreed upon by the parents and if one of them is unhappy with such an arrangement, they must approach the court and not stealthily take away the child. There should not be an absolute right of either parent deciding the destiny of the child, importance has to be given to the best interest of the child.
33. Considering the above facts and circumstances, this Court is of the considered opinion that the custody of ''D' with ''F' and his father Mr Anil Singh is held to be illegal, and consequently, the writ petition is allowed with a direction that the custody of ''D' should be immediately handed over to ''M'.
34. It is clarified that this order shall not preclude any of the parties to exercise their statutory right as provided for under the Guardians and Wards Act or Hindu Minority and Guardianship Act, 1956.
35. Looking into the fact that ''D' has remained in the custody of ''F' and his father Mr Anil Singh, it is provided that ''F' shall have visitation rights to meet ''D' on every Saturday or Sunday at the convenience of ''M'. He shall take ''D' at 10 AM on the given day and return her by 4.00 PM on the same day. In case custody of ''D' is not restored by 4.00 PM as provided, then on the request of ''M' respondent No.5 is directed to immediately intervene and restore the custody of ''D' to ''M'.
36. Mr Anil Singh may also meet ''D' on any one day on alternative weekends, as per convenience of ''M', in the presence of ''M'. ''M' shall also permit and make necessary arrangements for video conferencing for five minutes every alternative day with ''F' or his father.