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Allahabad High Court · body

2020 DIGILAW 1252 (ALL)

Gautam Saroj v. State Of U. P.

2020-10-21

J.J.MUNIR

body2020
JUDGMENT : 1. This petition for a writ of habeas corpus has been effectively brought by the first petitioner, Gautam Saroj praying that the second petitioner, Garima, his minor daughter may be ordered to be produced from the custody of Ganesh Prasad, respondent no. 4, the minor’s grandfather (maternal) and set at liberty in the manner that her care and custody be entrusted to Gautam Saroj. 2. This petition was admitted to hearing on 12.10.2020 and a rule nisi returnable on 21.10.2020, was issued. In compliance with the rule, Mr. Manoj Kumar Pandey, Advocate appeared for respondent no. 4. He has chosen not to file a counter affidavit on behalf of the said respondent. This Court, accordingly, proceeds to hear the matter. 3. During the hearing, the Court has spoken to the minor’s grandfather (maternal), Ganesh Prasad, respondent no. 4 and the minor’s father, Gautam Saroj. The Court has also spoken to the minor, Garima, who is aged three years and a half. She does not attend school yet. The Court has interacted with the child mindful of her tender years. She seems to be a bright child but too young to express an intelligent choice about her guardian or the person in whose custody she would like to be. 4. This Court, while speaking to the minor’s father on one hand and to her grandfather (maternal) on the other, has tried to ascertain their respective circumstances, their relations inter se, the circumstances under which the minor’s mother met an unnatural death -all to the end of determining in whose custody the welfare of the minor would be best secured. 5. Heard Mr. Mohd. Aqeel Khan, learned counsel for the petitioner, Mr. Manoj Kumar Pandey, learned Counsel for respondent no. 4 and Mr. Gyan Prakash Singh, learned State Law Officer appearing for the State. 6. The broadly undisputed facts are that marriage of Rachna Devi d/o Ganesh Prasad was solemnized with Gautam Saroj on 05.03.2016, according to Hindu rites. Two daughters were born to the couple, to wit, Garima, now aged about three years and a half and Karishma, aged about two years. Gautam Saroj says that his wife Rachna Devi met with an accident by fire on 09.04.2019, while she was cooking food. Gautam Saroj also says that he took his injured wife to the hospital for treatment. She died during treatment at the hospital on 09.04.2019. Gautam Saroj says that his wife Rachna Devi met with an accident by fire on 09.04.2019, while she was cooking food. Gautam Saroj also says that he took his injured wife to the hospital for treatment. She died during treatment at the hospital on 09.04.2019. Ganesh Prasad, respondent no. 4, lodged a first information report on 14.04.2019 against Gautam Saroj, the first petitioner and other members of his family, giving rise to Case Crime No. 253 of 2019, under Sections 498-A, 304-B I.P.C. and Section 3,4 D.P. Act, P.S. Barra, District Kanpur Nagar. It appears that the police investigated the matter and submitted a final report dated 09.05.2019, on 30.05.2019, exculpating all the accused, including Gautam Saroj. 7. A reading of the Final Report, that is on record, shows that the conclusion to exculpate Gautam Saroj and the other accused was reached by the police, bearing in mind a dying declaration of the deceased, which, in the opinion of the police, did not show that the husband or the in-laws were, in any manner, involved in the occurrence that was a pure and simple accident. Gautam Saroj has very candidly stated and brought on record a xerox copy of the final report and said that though he was exculpated by the police, the learned Magistrate has taken cognizance of the offence against him on the basis of the said report vide order dated 25.10.2019, passed in Misc. Case No. 5409 of 2019. Gautam Saroj has, thus, been summoned to stand his trial in the case. It is, however, added that the Magistrate has taken cognizance of the offence for no good reason. 8. It is pointed out that on the day that the police filed a final report in the case, that is to say, July the 30th, 2019, Ganesh Prasad took away the minor, Garima illegally from the custody of her father Gautam Saroj and refused to send her back. Gautam Saroj moved an application before the Station House Officer, P.S. Barra, District Kanpur Nagar on 30.07.2019 regarding this incident, which is said to have taken place at about ten minutes past seven o’clock in the evening hours. Gautam Saroj moved an application before the Station House Officer, P.S. Barra, District Kanpur Nagar on 30.07.2019 regarding this incident, which is said to have taken place at about ten minutes past seven o’clock in the evening hours. Once the police did not take any action in the matter, Gautam Saroj moved the Special Chief Judicial Magistrate, Kanpur Nagar on 19.08.2019, invoking the provisions of Section 156(3) Cr.P.C. He prayed to the Magistrate that the police be ordered to register and investigate the case. A copy of the said application is on record as Annexure No. 4, which discloses the details of the incident and also the fact that the Senior Superintendent of Police too, was moved through a written application to order registration of a case against the 4th respondent. 9. It appears that the Special Chief Judicial Magistrate called for a report from the police station. The police submitted a report dated 16.10.2019, that the minor Garima was indeed taken away by Ganesh Prasad and that now he was ready to hand over the child back to her father, Gautam Saroj. The police, however, opined that the minor was taken away in the background of deep hostilities between parties after the minor’s mother died, but there was no evidence of any act of kidnapping. 10. The Court has perused the aforesaid police report submitted to the Magistrate. The Magistrate, on the basis of the police report, proceeded to reject the application under Section 156(3) Cr.P.C. That order of the Magistrate is also on record. It is claimed by Gautam Saroj that it was after rejection of his application under Section 156(3) Cr.P.C. that Ganesh Prasad refused to send Garima back to Saroj. Instead, he demanded a sum of Rs. 5 lacs in lieu of that favour. 11. This Court must remark at once that the allegation regarding Ganesh Prasad, demanding a sum of Rs. 5 lacs, in lieu of repatriating his maternal grand daughter to her father’s home, appears to be an exaggeration stemming from the mutual bitterness that parties suffer from, under the unfortunate circumstances that they are placed in. 12. Mr. 11. This Court must remark at once that the allegation regarding Ganesh Prasad, demanding a sum of Rs. 5 lacs, in lieu of repatriating his maternal grand daughter to her father’s home, appears to be an exaggeration stemming from the mutual bitterness that parties suffer from, under the unfortunate circumstances that they are placed in. 12. Mr. Khan, learned counsel for the petitioner has emphasized the fact that the father is the natural guardian of a minor under Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and in his presence, the maternal grandfather has no right to hold the child’s custody. He submits that the welfare of the minor too, would be better secured with the father than with the grandfather (maternal). It is pointed out by the learned counsel for the petitioners that the father already has the care and custody of his other daughter, much younger to the detenue, who is well adapted in the father’s home. The family are already a victim of misfortune, where the children have lost their mother. It is urged that the two sisters, staying together, would have a better effect on the overall development of both the young children. It is also emphasized that the father has means enough to maintain both his daughters and the necessary inclination to groom them into useful citizens. 13. It is re-emphasized by Mr. Khan that the father, being the natural guardian under the statute, that legislative command cannot be ignored, discounted or trifled with. According to him, children’s interest are normally presumed to be best taken care of by their parents. Where one of them is lost, the other is to be regarded as best suited to bring up his/her minor children. Learned counsel for the petitioner has emphasized that the criminal prosecution that has been brought against Gautam Saroj and his family members, is not to be regarded as a disentitling factor, once the totality of circumstances are considered. On behalf of Gautam Saroj, it is urged that the minor’s welfare would be best ensured with her father and that it would be ensured far better than it would be with the grandfather. 14. Mr. Manoj Kumar Pandey, learned counsel for the 4th respondent has vociferously disputed Gautam Saroj’s case. Mr. On behalf of Gautam Saroj, it is urged that the minor’s welfare would be best ensured with her father and that it would be ensured far better than it would be with the grandfather. 14. Mr. Manoj Kumar Pandey, learned counsel for the 4th respondent has vociferously disputed Gautam Saroj’s case. Mr. Pandey submits that there is material on record to show that Garima was home alone after the FIR was lodged by the 4th respondent against Saroj and his family. Finding his granddaughter alone, Ganesh Prasad had brought her along and is taking care of her along with his wife. It is urged that Gautam Saroj is facing a serious criminal charge about doing his wife to death. Unless acquitted, he is not a person fit to take care of the child. It is emphasized by Mr. Pandey that a natural guardian, who is facing trial on a criminal charge, is most unsuitable to be entrusted with the minor’s care and custody. Learned counsel emphasizes that the welfare of the minor has many facets. Prime, according to learned counsel, is the inculcation of good moral values. He submits that a man, who is facing a criminal charge about causing his wife’s death, would do disservice to the minor’s moral grooming. 15. This Court has given a thoughtful consideration to the rival contentions and the material on record. The Court has also borne in mind whatever could be gathered about the circumstances of the parties vis-a-vis the welfare of the minor. 16. The preference of the minor about who would have her care and custody, in a delicate relationship between the parties, is important. But, for that preference to be taken into account by the Court, the minor must be, to borrow the phraseology of Section 17 (3) of the Guardians and Wards Act, “old enough to form an intelligent preference”. Here, the minor is far below that age, as this Court has already remarked. 17. This Court finds from a close interaction with the father that he is a Physiotherapist by profession. He holds a diploma in Physiotherapy and currently pursuing a course leading to a bachelors degree at the Himalaya University. He has earned his diploma from the Roopa Medical College, Kanpur Nagar. He has given this Court to understand that he has a professional income of Rs. 25,000/-per mensem and pays income tax. He holds a diploma in Physiotherapy and currently pursuing a course leading to a bachelors degree at the Himalaya University. He has earned his diploma from the Roopa Medical College, Kanpur Nagar. He has given this Court to understand that he has a professional income of Rs. 25,000/-per mensem and pays income tax. He has his mother, father and a sister at home. Besides them, the minor’s younger sister, Karishma is also there. About the circumstances leading to his wife’s death, he told the Court that he was away to Prayagraj when the incident happened. The accident was caused by a leak in the gas cylinder. Saroj is presently aged 33 years. He has not remarried. To the Court’s question, if he wishes to remarry, he said that he has not thought about the matter. The minor’s grandfather, respondent no. 4, Ganesh Prasad, on the other hand, told the Court that his daughter was set afire by her husband and in-laws. He said that he had lodged an FIR, but the police put in a final report. He had approached the higher authorities of the police, but to no avail. He is employed with the Jal Nigam as a Peon. 18. No doubt, the father is the natural guardian of a minor, and that status is conferred upon him by Section 6(a) of the Hindu Minority and Guardianship Act, but so far as the question of choice about a guardian for the minor is concerned, or so to speak, his/her custody is concerned, the statute, last mentioned, makes provision under Section 13 that mandates that the welfare of a minor in the matter of appointment and declaration of his/her guardian is of paramount importance. The minor’s welfare, without exception, has always been regarded as a matter of paramount consideration when the question is about appointment or declaration of a guardian or the custody of a minor inter se natural guardians. The welfare is to be tested on various parameters. Some of them, but not all, are spelt out by Section 17(2) of the Guardians and Wards Act, 1890. These are, the minor’s age, sex and religion. The proposed guardian’s character and capacity, besides his nearness of kin to the minor, are also envisaged. The welfare is to be tested on various parameters. Some of them, but not all, are spelt out by Section 17(2) of the Guardians and Wards Act, 1890. These are, the minor’s age, sex and religion. The proposed guardian’s character and capacity, besides his nearness of kin to the minor, are also envisaged. The wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property are also to be taken into account. It is only in cases where the minor is old enough to express an intelligent preference that his/her choice also gains importance. But, these criteria are not exhaustive. These serve as broad guidance in judging subtler aspects of human relationship and the minor’s interest. What is not lost sight of is the principle that a custody dispute relating to a minor is not about the right which the guardian may have under the law. It is about the welfare of the minor and where it would be best secured. 19. The necessary wherewithal to fund the minor’s basic needs about food, shelter and clothing would, of course, require the Court to ensure that the person who asks for the minor’s custody, has it. The guardian’s education and his ability to provide the minor with reasonably good education would be of great importance. The ability to provide good education does not come from mere financial capacity to fund education. The Court has to bear in mind the fact whether the guardian himself/herself is educated enough to guide the minor’s education so that his formal education in school may become meaningful and come to fruition. Above all, it would be instilling in the minor good human values without which physical comforts of life and the mental training imparted through education would be of little consequence. 20. This Court has little doubt that the father has the necessary wherewithal to provide for the minor. He also has seemingly better education than the grandfather. The only serious issue, that has been debated with much vehemence before this Court, is about the minor’s moral training and development, which the learned counsel for the 4th respondent says, would suffer in the hands of a father who is facing trial for the murder of the minor’s mother, his wife. 21. The only serious issue, that has been debated with much vehemence before this Court, is about the minor’s moral training and development, which the learned counsel for the 4th respondent says, would suffer in the hands of a father who is facing trial for the murder of the minor’s mother, his wife. 21. It is true that in situations where a natural guardian like a father or the mother is facing criminal trial for the other’s murder or unnatural death, as is the case here, Courts have been generally reluctant to entrust custody to such parents, unless they are acquitted and come out clean. The principle is that a person whose moral uprightness is under a cloud of doubt, ought not to be trusted with a child’s moral grooming. This, however, is not an inflexible rule that the moment a parent is charged with a homicidal crime relating to the other’s death, he/she is to be deprived of his/her children’s custody. What is required is that the Court must consider the circumstances of the crime, not with a view to pronounce upon guilt or otherwise, but to broadly gauge whether indeed the circumstances are such that the minor’s custody cannot be trusted in the hands of the surviving spouse. 22. In Nil Ratan Kundu and Another vs. Abhijit Kundu, 2008 (9) SCC 413 , dealing with the issue relating to custody between the minor’s grand parents (maternal) and his father, where the mother had become the victim of an unnatural death in her matrimonial home, and the husband was facing trial for offences under Sections 498-A, 304-B I.P.C. etc., it was held by their Lordships of the Supreme Court thus: 62. Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit. 63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. 63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the “character” of the proposed guardian. In Kirtikumar [ (1992) 3 SCC 573 : 1992 SCC (Cri) 778] , this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle. 64. Thus, a complaint against the father alleging and attributing the death of the mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person. To us, it is no answer to state that in case the father is convicted, it is open to the maternal grandparents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and an appropriate order ought to have been passed. 23. A reading of their Lordships decision in Nil Ratan Kundu (supra), particularly on the point in hand, does not show it to be an inflexible rule laid down that in all cases where one parent is facing a criminal prosecution for the other’s unnatural death, his/her claim to the minor’s custody must, in all cases, be negatived. It has been emphasized as an important factor, which the Court must consider before deciding upon what order about custody ought to be made. In Nil Ratan Kundu (supra), the approach of the lower courts who said that in case the father were convicted, it would be open to the maternal grandparents to claim the minor’s custody, was held to be flawed. 24. To the understanding of this Court, what would make the case of one natural guardian, facing charges for the unnatural death of his/her spouse, different from the other, would be his/her conduct and the circumstances in which he/she has come to be arraigned. 24. To the understanding of this Court, what would make the case of one natural guardian, facing charges for the unnatural death of his/her spouse, different from the other, would be his/her conduct and the circumstances in which he/she has come to be arraigned. Else, it would not have been held by their Lordships that the pendency of a criminal case under Section 498-A I.P.C. etc. would be a relevant factor, which the Court must address while deciding a minor’s custody. It would have been laid down as an inflexible rule that an arraigned parent ought not to be entrusted with the minor’s custody till he/she comes out clean with a judgment of honorable acquittal. This is not the rule laid down, to this Court’s understanding, in Nil Ratan Kundu (supra). It is on account of this feature of the principle in Nil Ratan Kundu (supra) that the circumstances of each case ought to be considered by the Court whenever the issue about the custody of a minor being entrusted to a parent, who is facing charges about the death of the other, arises. 25. In Nil Ratan Kundu (supra), their Lordships noticed the facts which show that upon death of the minor’s mother, the husband was arrested by the police. Here, the facts show that the FIR did not lead to any immediate arrest. Rather, a dying declaration of the deceased was recorded, exculpating the husband and her in-laws. It is on the basis of the said dying declaration that a final report was filed. It is quite another matter that the Magistrate, on the basis of some material in the case diary, found it a case where the final report recommending closure of proceedings, ought to be rejected. It does show, however, but limited to judge the father’s suitability to hold the minor’s custody, that the father’s conduct is not apparently so blameworthy as may dis-entitle him to the child’s custody, ipso facto. There is also the added circumstance that Gautam Saroj is taking care of his other child, who is the minor’s sister and younger to her. There is no complaint by the 4th respondent about the other child’s welfare being, in any manner, not ensured with the father. The 4th respondent has not asked for the other minor’s custody. This would indicate that the 4th respondent too, does not altogether distrust his son-in-law. 26. There is no complaint by the 4th respondent about the other child’s welfare being, in any manner, not ensured with the father. The 4th respondent has not asked for the other minor’s custody. This would indicate that the 4th respondent too, does not altogether distrust his son-in-law. 26. On the other hand, the fact cannot be lost sight of that, in case, the minor and her younger sister are separated, by being placed in two different families, it might adversely affect the children’s development together. The two minors are not just siblings, but very close in their years. They would be happier together than separated. It hardly need be gainsaid that a happy and congenial atmosphere is also of great importance in ensuring a happy and satisfied childhood; in turn, it is a harbinger to a balanced and well-groomed youth. The two minors, torn apart, might suffer more psychologically than if they were placed together in the same family. Also, the father has presently not remarried. The possibility that he may, cannot be ruled out. But it is a possibility and no more. The minors also have two paternal grandparents at home, besides each others company, which would develop into a strong bond at the age that they are. In the circumstances, the custody that the father asks for, prima facie, certainly promises a better welfare for the minor detenue than what would obtain in the 4th respondent’s hand. 27. At the same time, this Court makes it clear that a custody dispute decided in a habeas corpus matter is a summary determination. The party, in whose favour this Court has not found, that is to say the 4th respondent, would be at liberty to establish a superior claim to custody through regular proceedings taken before the Court of competent jurisdiction under the Guardians and Wards Act. This tentativeness about the determination made here proceeds on the nature of the jurisdiction that is exercised primarily on limited evidence, founded on affidavits and some interaction. A final determination, therefore, ought to be left to the Court of competent jurisdiction, where intricate questions on facts can be better gone into, if the aggrieved party chooses to avail that remedy. 28. A final determination, therefore, ought to be left to the Court of competent jurisdiction, where intricate questions on facts can be better gone into, if the aggrieved party chooses to avail that remedy. 28. It is made clear, in case, the 4th respondent moves the Court of competent jurisdiction under the Guardians and Wards Act through an appropriate petition asking for the minor’s custody, or may be the custody of both minors involved here, it will be open to that Court to decide his claim vis-a-vis the first petitioner, strictly in accordance with law and the evidence led, without being influenced by anything said in this judgment. 29. In the result, this habeas corpus writ petition succeeds and is allowed. The rule nisi made is absolute. The minor, Garima, is set at liberty in the manner that her custody shall be handed over to her father, Gautam Saroj, who is present in Court. The father, Gautam Saroj, the minor, Garima and the minor’s grandfather (maternal) are all present in Court. The 4th respondent, Ganesh Prasad, has handed over the minor’s custody to Gautam Saroj in Court. 30. However, looking to the relationship between parties and the fact that the 4th respondent, Ganesh Prasad is the minor’s grandfather (maternal), he is found entitled to meet and interact with the minor. It is ordered that the first petitioner, Gautam Saroj shall permit Ganesh Prasad to meet the minor, Garima once a month, on the second Sunday between 10:00 a.m. to 01:00 p.m. at Gautam Saroj’s residence. If for some reason, the aforesaid schedule cannot be adhered to, it shall be mutually determined between the parties, but not so as to infringe the minimum monthly meeting once for the grandfather (maternal). It is further directed that during the grandfather’s meetings with the minor, Gautam Saroj and his family members shall extend due courtesy to Ganesh Prasad and facilitate the meetings. 31. Let this order be communicated to the learned District Judge, Kanpur Nagar and the Senior Superintendent of Police, Kanpur Dehat by the Joint Registrar (compliance). The learned District Judge and the Senior Superintendent of Police shall act in aid of this order.