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2021 DIGILAW 1122 (ALL)

Awanish Pandey v. State Of U. P.

2021-09-27

YOGENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : Yogendra Kumar Srivastava, J. 1. Heard Sri Anil Kumar Srivastava, learned Senior Counsel assisted by Sri Prem Narain Singh, learned counsel for the petitioners and Sri Arvind Kumar, learned Additional Government Advocate appearing for the Staterespondents. No one has appeared for the respondent no. 4, though the names of counsel are shown in the list. 2. The present petition for a writ of habeas corpus has been filed seeking custody of the petitioner n. 2, corpus, stated to be a minor of age about five years and ten months, by the petitioner no. 1 who asserts to be his father. 3. The facts as stated in the writ petition indicate that the petitioner no. 2 was born in the month of January, 2014 and on 11.05.2015, the wife of the petitioner no. 1 i.e. the mother of the corpus, is stated to have committed suicide at the petitioner's home and thereafter an FIR was lodged against the petitioner no. 1 and other family members, registered as Case Crime No. 149 of 2015 under Section 498A, 304B IPC and 3/4 D.P.Act, Police Station Bahariya, District Prayagraj and the petitioner no. 1 was sent to jail on 17.05.2015. 4. It has further been stated that the respondent no. 4 filed a Habeas Corpus Writ Petition No. 45207 of 2015 (Om Prakash Mishra and another Vs. State of U.P. and others) and this Court, upon taking notice of the fact that the father of the corpus and other family members were in jail, passed an order dated 22.09.2015 granting custody of the minor child to the maternal grandfather, who is the respondent no.4 in the present case. The habeas corpus petition was subsequently dismissed as infructuous in terms of an order dated 28.11.2016. 5. Pleadings have been exchanged. 6. Learned Additional Government Advocate has pointed out that a copy of the First Information Report, which has been filed as annexure 1 to the writ petition, indicates that the same was lodged on 12.05.2015 under Sections 498A, 304B IPC and Section 3/4 of the Dowry Prohibition Act, 1961. In the said First Information Report, the petitioner no. 1 herein, is named as one of the accused. It is submitted that the First Information Report is in respect of an incident relating to the death of the wife of the petitioner no. 1 i.e. mother of the corpus, whose custody is being sought. In the said First Information Report, the petitioner no. 1 herein, is named as one of the accused. It is submitted that the First Information Report is in respect of an incident relating to the death of the wife of the petitioner no. 1 i.e. mother of the corpus, whose custody is being sought. 7. Learned Additional Government Advocate submits that petitioner no. 1 being the principal accused in the pending criminal case, the prayer of the petitioner no. 1 seeking custody of the minor child may be detrimental to his interest. 8. In somewhat similar set of facts, in the case of Nil Ratan Kundu and another vs. Abhijit Kundu, (2008) 9 SCC 413 where the custody of a minor was sought in the background of the pendency of a criminal case under Sections 498 and 304 I.P.C. against the father charging him of causing the death of a minor's mother, it was held that the paramount consideration in such matters would be the welfare of the child, and the court, exercising 'parens patriae' jurisdiction, must give due weightage to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings as well as physical comfort and moral values and the character of the proposed guardian is also required to be considered. It was held that the pendency of a criminal case, wherein the father has been charged of causing the death of the minor's mother, was a relevant factor required to be considered before an appropriate order could be passed. It was held as follows : "52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations... xxx 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 criminal case for an offence punishable under Section 498A 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, this Court, almost in similar circumstances where the father was facing the charge under Section 498A IPC, did not grant custody of two minor children to the father and allowed them to remain with maternal uncle. 64. Thus, a complaint against the father alleging and attributing the death of mother, and a case under Section 498A 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.” 9. In an earlier decision in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573 where in almost similar circumstances the father was facing a charge under Section 498A I.P.C., it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of children to hand over their custody to the father. 10. 10. In a recent decision in Rachit Pandey (minor) and another vs. State of U.P. and 3 others, 2021 (2) ADJ 320 this Court after referring to the authoritative pronouncements in the case of Nithya Anand Raghvan vs. State (NCT of Delhi) and another, (2017) 8 SCC 454 , Sayed Saleemuddin vs. Dr. Rukhsana and others, (2001) 5 SCC 247 and Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 has held that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the Court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of someone else other than in whose custody the child presently is. It was held that the pregorative writ of habeas corpus, is in the nature of extraordinary remedy, which may not be used to examine the question of custody of a child except where in the circumstances of a particular case, it can be held that the custody of the minor is illegal or unlawful. 11. Learned Senior Counsel appearing for the petitioners has not been able to point out as to how, in the facts and circumstances of the present case, the custody of the petitioner no. 2 with his maternal grandfather can be said to be illegal or unlawful so as to pursuade this Court to exercise its extraordinary prerogative jurisdiction for issuing a writ of habeas corpus. He has also not disputed that any rights with regard to guardianship or custody are to be agitated before the appropriate forum. 12. The habeas corpus petition stands dismissed accordingly.