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2020 DIGILAW 1189 (ALL)

Bishantak v. State of U. P.

2020-10-06

JAHANGIR JAMSHED MUNIR

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JUDGMENT : Jahangir Jamshed Munir, J. 1. In compliance with the order dated 1.10.2020, Bishank and Sumit, both sons of Amit Soni, have been produced before this Court, by Constable Raj Kumar Yadav (PNO No. 182101843); posted at Police Station-. Kotwali Nagar, Banda, District Banda, who has identified both the detenues before the Court. 2. This Court accordingly, proceeds to ascertain their stand in the matter: Q. Apka nam kya hai? A. Bishank. Q. Aapke pita ji ka nam? A. Amit Soni. Q. Aapki aayu? A. 15 Saal. Q. Aap kiske sath rahna chahati hain? A. Maa ke paas. Q. Aap apane pita ji ke pass kyon nahi rahana chahte; koi khaas vajah? A. Kyoki vo maa ko mora karate, the aur pita ji ko kai bar maine badi maa ke sath apattijanak sthiti me dekha. Q. Aapka nam? A. Sumit. Q. Aapki aayu? A. 14 saal. Q. Aap parhte hain? A. Haan. Q. Kiss class me? A. 9th Q. Aap kiske pas rahana chahte hain? A. Maa ke pass. Q. Pita ji ke pass kyo nahi? A. Kyo ki pita ji ma ke sath atyachar karte the aur badi maa ke sath galat harkate karte hua, maine unhe kai bar pakada. 3. Heard Sri Rajesh Kumar Singh, learned Counsel for the petitioners, Sri Devesh Misra, learned Counsel for the respondent No. 4 and the learned A.G.A. on behalf of the State. 4. Learned Counsel for the petitioner has submitted that he is the natural guardian of the minors under section 6(a) of the Hindu Minority and Guardianship Act and that his wife is the natural guardian in his absence alone. It is pointed out that it is in case of minors up to the age of 5 years that the wife has a right to their custody. Learned Counsel for the respondent on the other hand submits that the minors have stayed with the wife and are well taken care of. According to the learned Counsellor the respondent, both the minors are pursuing their studies in classes 10th and 9th and are being groomed to become good citizens. 5. This Court, has carefully considered the matter and the material that has appeared in this case. It is true that both the mother and father are natural guardians of a child, till he is a minor, under section 6(a) of the Hindu Minority and Guardianship Act. 5. This Court, has carefully considered the matter and the material that has appeared in this case. It is true that both the mother and father are natural guardians of a child, till he is a minor, under section 6(a) of the Hindu Minority and Guardianship Act. Their rights are equal as natural guardians, particularly, in view of the decision of the Hon'ble Supreme Court in the case of Githa Hariharan (Ms) and another v. Reserve Bank of India and another, 1999 (35) ALR 518 which has placed the wife at the same pedestal, as the husband in her right as a natural guardian of the" minor children. It is not that a minor's mother becomes the natural guardian, once the husband is no more. She is entitled to that right if for any reason he is not available, like the two becoming estranged and living apart. Now, there is some issue raised by the learned Counsel for the respondent that in a custody dispute between the husband and the wife, the remedy of a writ of habeas corpus is not appropriate. It is submitted that both being natural guardians, parties should be relegated to their remedy under section 25 of the Guardians and Wards Act. It is now settled in view of the decision of the Hon'ble Supreme Court in Yashita Sahu v. State of Rajasthan and others, (2020) 3 SCC 67 that a dispute about custody between parents, can be gone into by this Court, in the exercise of its jurisdiction to issue a writ of habeas corpus, where one parent claims that the child is in unlawful custody of the other. 6. What really is of substance in a matter about custody of a minor is his/her welfare. It has become a truism in the law of guardianship that welfare of the minor is of paramount consideration. That is the principle postulated under section 17 of the Guardians and Wards Act. The principle about welfare of the minor being of paramount consideration in the matter of appointment of a guardian of the person of the minor or in a custody matter is embodied under section 13 of the Hindu Minority and Guardianship Act, 1956. Thus, this Court has to see where the welfare of the minor is best secured. The principle about welfare of the minor being of paramount consideration in the matter of appointment of a guardian of the person of the minor or in a custody matter is embodied under section 13 of the Hindu Minority and Guardianship Act, 1956. Thus, this Court has to see where the welfare of the minor is best secured. It is in this context, that the Court has spoken to the minors who are not only of intelligent years but, teenagers, not far away from majority. They have expressed themselves eloquently. Much of the words they have said have been recorded hereinabove verbatim. In case of minors older in years, particularly teenagers, their views are of prime importance and required to be accorded great Weight while judging the question about their welfare in a custody dispute. Unless, the choice of a minor of older years about his guardian or custody be outrageous or demonstrably against his interest the Court ought to give effect to it. If that choice is in favour of one or the other parent, there is very little scope to deny it. 7. The stand of the minors does not leave this Court in any doubt that their welfare would be best served with their mother. In fact, it would be a disservice to the minors, if they were asked to stay with the father. 8. In this view of the matter, this Court does not find any good ground to make the rule absolute. The rule nisi is discharged. 9. The petition is dismissed.