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2016 DIGILAW 3779 (ALL)

ALI AZHAR v. STATE OF U. P.

2016-11-23

PRATYUSH KUMAR

body2016
JUDGMENT Hon’ble Pratyush Kumar, J.—Heard Sri S.S. Shah, Advocate learned counsel appearing for the petitioners and Sri Sudhir kumar Kesarwani, Advocate learned counsel appearing for the respondent No. 4 and learned AGA for the State. 2. On behalf of the petitioners a supplementary-affidavit has been filed and is taken on record. 3. By the instant petition petitioner No. 1, who happens to be biological father of petitioner No. 2 her minor male child aged about 10 years, seeks change of custody of the minor from respondent No. 4, who happens to be mother of the minor, to himself on the ground that petitioner No. 1 and respondent No. 4 were married and on 3rd June, 006 petitioner No. 2 was born out of their wedlock. Respondent No. 4 was rude to petitioner No. 1 and had illicit relation with one Abdullaha. She left the house and her child. Thereafter she instituted criminal cases against the petitioner No. 1. She filed a writ of habeas corpus before this Court wherein vide order dated 26th September, 2011, copy whereof is annexure-5 to the supporting affidavit, respondent No. 4 was granted visitation right alongwith custody of minor for two days in each weak, Saturday and Sunday. According to para 25 on 26th September, 2015 respondent No. 4 took the child and disappeared. She could not be contacted. Thereafter the instant petition has been filed. Supplementary-affidavit dated 31st March, 2016, 24th August, 2016 and 3rd October, 2016 have been filed. 4. On behalf of the respondent No. 4 a short counter in the form of supplementary-affidavit has been filed whereby it has been stated that at present corpus is living at Delhi and studying in class 5 and respondent No. 4 is having her custody and care diligently. 5. On behalf of respondent Nos. 2 and 3 report about means of respondent No. 4 on affidavit has been filed. 6. Before dealing with the matter I would like to place on record that corpus was produced before the Court on 18th July, 2016 and the Court recorded the proceedings that took place in the present matter as follows: “Heard learned counsel for the petitioners as well as learned counsel for the respondent Nos. 4 and perused the record. Respondent No. 4 also present in person, alongwith corpus/petitioner No. 2. 4 and perused the record. Respondent No. 4 also present in person, alongwith corpus/petitioner No. 2. Corpus was allowed to sit independently with his parents in the association of security guard, and his statement was directed to be taken in the chamber in seclusion. In the chamber corpus stated that he wants to remain with his mother. It is also stated that his father as well elder brother of his father used to beat him bitterly. It is also stated by him that some intoxicated material was administered to him, thereby causing in physical as well as mental problem. It is also stated by him that he is taking education in a vary good school at Delhi. His mother lived with the Nani of the corpus and sister of his mother also take care of him very well. It is further stated by him that his father was not giving proper education to him and he was admitted to a school, madam of which was not of good nature, always speaking loudly and certain time he felt depressed due to that. Corpus stated various facts sou-moto without being asked and certain questions were put to him, they are answered wisely. Corpus seems to be a talented boy. Welfare of the corpus is supreme and wishes of corpus is also relevant for giving him in the custody of anybody. As corpus is not willing to go to his father house, therefore, it is ordered that corpus will remain with his mother, unless otherwise ordered. It is to be seen as to with whom welfare of corpus lies, for that petitioner/father of corpus as well as respondent No. 4 mother of corpus are directed to produce the evidence of their support, regarding welfare of corpus and means for that. The personal appearance of the corpus as well as respondent No. 4 is exempted, unless otherwise ordered. Bailable warrant were issued against the respondent No. 4. The compliance report of the Chief Judicial Magistrate, Meerut is upon record. List this matter again on 24.8.2016.” 7. The supplementary-affidavit filed today on behalf of petitioners, supplementary counter filed by respondent No. 4 and progress report filed by respondent Nos. 2 and 3 are in compliance of the aforesaid order. 8. The compliance report of the Chief Judicial Magistrate, Meerut is upon record. List this matter again on 24.8.2016.” 7. The supplementary-affidavit filed today on behalf of petitioners, supplementary counter filed by respondent No. 4 and progress report filed by respondent Nos. 2 and 3 are in compliance of the aforesaid order. 8. Before proceeding further it would be gainful to recollect the legal position which the Court exercises jurisdiction under Article 226 of the Constitution of India has to keep in mind. In the case of Sayed Salimudeen v. Rukhsana, 2001 (5) SCC 247 , the Hon’ble Apex Court in the writ seeking transfer of custody of children has observed that principal consideration for the Court would be to ascertain whether custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of somebody else. 9. Thus this Court has to decide two questions whether the minor/corpus is in illegal detention at the date of his production before this Court; 10. Whether welfare of the child/corpus requires the Court to change his custody from her mother to the petitioner No. 1. 11. The minor when produced before this Court as noticed above has not made any complaint against respondent No. 4. Both petitioner No. 1 and respondent No. 4 are biological parents of the minor. They in Muslim Law after certain age; seven years the father becomes the only guardian of the minor, specially, of male child but mother has not been relegated to the status of stranger. The nature has given her right to see, to care for and to shower affection on her off spring. For this reason the law does not recognize custody of the child with his/her mother to be illegal. 12. The wishes of the minor and the observation made above, make custody of the minor not illegal but there also negate the possibility of unlawful confinement or illegal detention. Here the sole question is when by Court’s orders 26th September, 2011 the respondent No. 4 was only given visitation right and custody of minor only for two days. She can acquire a right to have the child continuously with her. Here the sole question is when by Court’s orders 26th September, 2011 the respondent No. 4 was only given visitation right and custody of minor only for two days. She can acquire a right to have the child continuously with her. On this point averments contained in the petition reflect that she retained the custody of the minor in contravention of the Court’s order dated 26th September, 2011. 13. On behalf of respondent No. 4 in the short counter-affidavit/supplementary-affidavit this fact has not been denied. Unfortunately at present corpus is different state beyond the jurisdiction of this Court. He is in Delhi, therefore, a writ cannot be issued in reference to his custody by this Court and for this reason I hold the present writ petition to not maintainable my view is fortified by the observation of the Hon’ble Apex Court made in the case of K.S. Rashid and son v. Income-Tax Investigation Commission, AIR 1954 SC 207 . 14. Welfare of the minor being paramount consideration but its adjudication has to be deferred and it is left for the District Judge/Principal Judge Family Court to decide this question whenever application for appointment of guardian or change of custody of the minor is made before the competent Court. On behalf of the petitioners learned counsel has stated that petitioner No. 1 intends to invoke the jurisdiction of the competent Court for the purpose because minor is living with paramour of respondent No. 4 and in an unhealthy atmosphere. 15. In view of the above, writ petition is disposed of with this observation that in case petitioner No. 1 seeks appropriate remedy before the appropriate forum enclosing therewith a certified copy of this order, the proper forum shall consider the welfare of the minor expeditiously hear the matter and preferably decide it within six months. 16. Though opposed by learned counsel for the respondent No. 4, it is further observed that the petitioner No. 1 in case of delay shall be entitled to move application for interim custody of the minor.