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2022 DIGILAW 1010 (PNJ)

Shraddha Gupta v. State Of Haryana

2022-05-24

SURESHWAR THAKUR

body2022
JUDGMENT Sureshwar Thakur, J. - The petitioner, and, co-respondent No. 4, entered into a legal wedlock, and, from their legal wedlock, a child named, one Arjun, was born. Since some matrimonial strife has erupted inter se the above marital partners thereupon, the custody of above Arjun, who is now aged 4 years, has been assumed by co-respondent No. 4. Consequently, the present petitioner, who is the biological mother of one Arjun, has claimed custody over Arjun, and, has obviously asked for restoration to her, of the custody of minor Arjun, through a writ of habeas corpus, being made upon co-respondents No. 4 to 10, within whose household, the above minor boy is extantly residing, and, that it being also made upon co-respondents No. 1 to 3, for the latters ensuring the retrieval, to her, of the custody of minor boy Arjun. 2. The gravamen of the above claim becomes grooved in the factum of the petitioner departing from the matrimonial company of her husband, given the latter subjecting her to physical cruelty. It appears that the above purported meteings of physical cruelty to the petitioner, by her husband, who is arrayed as co-respondent No. 4, in the petition, has fostered an apprehension in the mind of the petitioner, that even her minor son, is unsafe within the household of co-respondents No. 4 to 10, and, for ensuring his safety, and, besides for ensuring that the optimum befitting care, and, nourishment becomes bestowed, upon one Arjun, rather the custody of the latter, be restored from the private respondents, to her. 3. Though, the statutory mandate, as carried in Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 'Act'), provisions whereof stand hereinafter, carry a statutory contemplation, that in respect of the custody of a boy, who has not, at the relevant stage, yet completed the age of five years, 'shall ordinarily be with her/his mother.' 6. 3. Though, the statutory mandate, as carried in Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short 'Act'), provisions whereof stand hereinafter, carry a statutory contemplation, that in respect of the custody of a boy, who has not, at the relevant stage, yet completed the age of five years, 'shall ordinarily be with her/his mother.' 6. Natural guardians of a Hindu minor.-The natural guardian 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 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).' 4. However, the phrase 'ordinarily' as carried thereins, obviously does not bestow any indefeasible right in the biological mother of a minor boy aged upto five years, as is the age of one Arjun, to even without hers, prima facie establishing that the most befitting optimum care with respect to the upbringings, and, nourishment(s) of the boy, aged upto four years, rather can become meted to him by her, rather make any valid strivings before any Court of law, qua yet the custody of a boy aged upto five years, becoming restored to her. In other words, unless evidence surges-forth qua the care giving to a boy upto four years, by his father, is completely deficit on all facets, she cannot make any valid endeavour with respect to the contentious factum, being answered in her favour. In other words, unless evidence surges-forth qua the care giving to a boy upto four years, by his father, is completely deficit on all facets, she cannot make any valid endeavour with respect to the contentious factum, being answered in her favour. Predominantly also the phrase 'ordinarily' existing in Section 6 of the Act, and, to which the afore interpretation, is meted, also does make the above thereto made interpretation, to completely fall in alignment, with the principle of 'parens patriae', rather enjoined to be adhered by the Courts of law, while acting as 'locus parentis', of the minor boy, aged about four years. Evidence qua compliances to the above solemn duty as cast upon the Courts of law, would obviously emerge, only after a perusal, and, objective appraisal of the evidence adduced, on the relevant struck issue, upon the contentious pleadings reared by the litigants concerned, who combat over the custody of a minor boy aged five years. Conspicuously, the discharge of the afore obligation may not become well founded, unless cogent evidence in respect to apposite contentious issue becomes adduced by the contesting parent. Moreover, a writ Court obviously may not ordinarily proceed to assume jurisdiction, in respect of the explicit statutory mandate (supra), embodied in the Act, and, as specifically appertains to statutory empowerments becoming vested in the Civil Courts concerned, qua the contested custody of a minor boy, aged five years, and, as does now emerge amongst his parents. Contrarily rather the jurisdictional competence of a competent Civil Court concerned, to entertain a petition or a suit under the Act (supra), is an exclusively bestowed jurisdiction, upon it, qua the above contest, unless the habeas corpus Court is seized with cogent evidence (supra), as thereupon the otherwise cumbersome civil remedy (supra) may not be equally efficacious, as is the habeas corpus remedy. 5. Therefore, in view of the above, this Court may not proceed to entertain the instant petition, with asking thereins qua the makings of a writ of habeas corpus, upon all the above. 5. Therefore, in view of the above, this Court may not proceed to entertain the instant petition, with asking thereins qua the makings of a writ of habeas corpus, upon all the above. Nonetheless, when as stated (supra), this Court can even, while functioning as locus parentis, and,/or, assuming the role of parens patriae, qua a minor boy, can yet in substitution to the above alternative remedy, may proceed to, upon stark, cogent, and, reliable evidence, becoming adduced before this Court, rather make a conclusion, qua whether the betterment(s) in all respects, of the child, would be ensured, not upon his being in the custody of his father, rather it being ensured, only upon his custody being restored, to his mother, who is the present petitioner. 6. The principle for ouster of jurisdiction of a Civil Court concerned, qua the issue of custody whether interim or permanent, through the invocation of the jurisdiction of a habeas corpus Court, is grooved, in the salient rubric, that the remedy of a writ of habeas corpus, being more efficacious or being more befitting, than the alternative thereto remedy of a civil suit, before any Civil Court of competent jurisdiction. Since for the making of the afore conclusion, and, as above stated, rather cogent evidence appertaining to (a) the moral, psychological, and, physiological weal of a child, becoming evidently vulnerable, in case the custody of the child is ordered to be maintained yet, by the errant parent, and, it being aptly restored to the aggrieved parent, (b) that he or she is financially more empowered and, is more ably waxed, in all respects, to ask for restoration of custody of the minor child to him or to her, and, (c) the ambience whereins the child is residing, and, it being provenly free from any strife, for precluding any etchings of any psychological trauma onto the psyche of the child, and, the above being cogently proven by a trained clinical psychologist. The lack of financial resources of a parent, in whose custody the child is, may work as a critical setback in the grooming of the child, and, also may operate as a deterrent for his receiving best education, rather for his developing his/her personality, and, also may work as a hurdle for his grooming, physical, and, psychological development. Evidence qua the above also requires its adduction, and, objective appraisal by the Court concerned. 7. Evidence qua the above also requires its adduction, and, objective appraisal by the Court concerned. 7. In determining whether the above stark evidence, with respect to the minor boy Arjun, rather being not adequately looked after by the private respondents qua all his needs appertaining to his nourishment, education, and, grooming, this Court, on a perusal of the unrebutted reply on an affidavit, being sworn by an officer of the official respondents concerned, the relevant portion whereof becomes extracted hereafter, does unearth therefrom, that rather echoings with the utmost candor, are made thereins, about the safety and happiness of Arjun, during his stay with the private respondents. 'That on receipt of notice in present writ petition, an application was moved by the police official to the Child Welfare Committee and Child Welfare Committee duly deputed District Child Protection Officer, Kaithal who after getting conducted the home study of said Arjun reported that on 5.5.2022, Staff of District Child Protection Officer visited the house of said Arjun and Vivek Goel i.e. father of child (present respondent No. 4) and other family members were present at the home and inquiry was made from them. Father of the child informed that Arjun was studying in UKG standard in Aryan International School, Kaithal. Counseling of the child Arjun was also got done by the child welfare committee. He was found happily residing in his house and he was found to be looked after well by his family member. Father of the Arjun also made a statement in writing that his son was doing well in studies. In order to further verify the matter, neighbour Anita Rani wife of Sat Prakash Mittal was joined in the inquiry and she stated that the child Arjun is very happy and safe with his family members and often come to their accompanied with his grandmother to play with other children. He is very happy with his father and other family members.' 8. Moreover, there are also echoings, in the above extracted paragraph, that the most befitting education been purveyed to the minor boy, by his father. The sequel of the above unrebutted reply on affidavit, being instituted before this Court, is that, qua the petitioner obviously acquiescing to the above extracted echoings carried thereins. Moreover, there are also echoings, in the above extracted paragraph, that the most befitting education been purveyed to the minor boy, by his father. The sequel of the above unrebutted reply on affidavit, being instituted before this Court, is that, qua the petitioner obviously acquiescing to the above extracted echoings carried thereins. Since also there are no echoings therein, rather reflective of the fact, qua there being no wantings of the father of the minor boy, in respect of best nourishment, being purveyed to him, and/or, in respect of best caregiving becoming meted to him. Consequently, the above unrebutted paragraph of the reply, furnished to the petition, by the official respondents concerned, does constrain this Court, to while acting both as locus parentis or in its assuming the role of parens patriae, qua the minor boy, to safely conclude, that the present petitioner cannot, through the instant remedy, make any argument  before this Court, that she is either entitled to the interim custody of the minor boy, or that she cannot yet recourse the alternative statutory civil remedy, given the same being neither efficacious nor befitting. The further reason, for the afore drawn conclusion becomes galvanized, from the further factum, that the petitioner has not been able to produce on record, any evidence rather displaying, that she is extantly financially more capacitated, than the private respondents, and, that she can give better caregiving in all respects, to the minor son, nor has she placed on record any suggestions, with respect to her making caregivings to her minor son, in all respects, hence superior to the one, as become extantly meted to him by the private respondents concerned. The lack of the afore material on record, at this stage, before this Court, and, which of course may become adduced by her before the learned Civil Court concerned, does constrain this Court, to infer that there is no stark evidence adduced, nor any material becoming adduced before this Court, hence undermining the caregivings, as revealed in the above unrebutted reply, furnished to the petition, by the private respondents concerned, hence to the minor boy. In sequel, the above wantings on the part of the petitioner, does constrain this Court to, not through its exercising the jurisdiction of habeas corpus, grant any interim custody or to permanently restore the custody of the minor boy to the present petitioner. 9. In sequel, the above wantings on the part of the petitioner, does constrain this Court to, not through its exercising the jurisdiction of habeas corpus, grant any interim custody or to permanently restore the custody of the minor boy to the present petitioner. 9. However, the learned counsel for the petitioner, has proceeded to make a vigorous argument before this Court, that since the Hon'ble Apex Court in Yashita Sahu versus State of Rajasthan and others, to which Criminal Appeal No. 127 of 2020, is assigned, has proceeded to restore the custody of the minor child thereins, and, that too when earlier thereto, the apposite civil remedies becoming not recoursed by the aggrieved. Therefore, he contends with much vigour before this Court, that since the verdict (supra) makes an expostulation of law against the completest ouster of jurisdiction of civil remedies, upon the aggrieved parent, rather accessing the habeas corpus Court. However, the above made argument, before this Court, and, as become rested, upon the verdict (supra), becomes completely unhinged, as neither the facts embodied thereins, nor the cullable therefrom ratio decidendi is squarely applicable to rather the facts of the lis at hand. The reason for making the afore conclusion, becomes sparked from the trite factum, that thereins the custody of the minor child, was ordered to be made to the aggrieved parent, rather through an order made on 25.8.2018, para whereof stands extracted hereinafter, hence by the Norfolk Juvenile and Domestic Relations District Court. 'mother to have child every other week from Saturday @ noon until Wednesday @ noon and in alternating weeks from Saturday @ noon until Tuesday @ noon. Father shall have parenting time on Wednesday @ noon until Saturday with alternating weeks two @ noon until Saturday @ noon (i.e. 4 days on, 3 days off switching weeks for each parent) parents shall allow whatsapp calling with child with custodial parent at least 5 min. per evening upon reasonable notice to other parent. Parents shall use a third neutral party to facilitate exchanging the child. Parties shall corporate with each other & third party if noon exchange time is not feasible all parties will surrender their passports, including child's passport, to guardian ad liten. per evening upon reasonable notice to other parent. Parents shall use a third neutral party to facilitate exchanging the child. Parties shall corporate with each other & third party if noon exchange time is not feasible all parties will surrender their passports, including child's passport, to guardian ad liten. Mother to reside @ marital residence until December 1, 2018 wherein mother will vacate the premises or assume full responsibility of the rent and utilities thereafter.' As per this order, amongst other things the husband was to add the wife as an authorised lease holder in the rented premises and he was to pay weekly support to the child @ $150 per week for the months of October and November, 2018 and $200 per week for the month of December, 2018. Joint, legal custody and shared physical custody of the child was given to the parents, with each parent being given individual parenting time. As per the agreement the child was also permitted to talk to the other parent by WhatsApp calling, after reasonable notice. It is important to note that it was clearly mentioned that the parties shall cooperate with each other and try to reach an amicable settlement with the help of a neutral third party. If a settlement was not possible then they were to surrender their passports including the child's passport to the guardian ad litem. The wife was directed to reside in the marital residence till December 1, 2018, whereafter she had to vacate the premises or assume full responsibility of the rent and utilities.' 10. However, the mandate above, became breached at the instance of the mother of the child, leading to the husband to, on 2.10.2019, re-move Norfolk Court, and, his thereins obtaining an ex-parte order hence bestowing upon him, the sole legal and physical custody of the child, and, with a direction to the mother of the child to return to USA along with the child. Moreover, a warrant was also issued against the mother of the child rather for violating the order of 26.9.2018, as made by the Norfolk Court. The husband had also accessed the Rajasthan High Court by filing a writ of habeas corpus, and, the latter had proceeded to make an order alike the one, as was passed by the Norfolk Court, and, which has been extracted hereinabove. 11. The husband had also accessed the Rajasthan High Court by filing a writ of habeas corpus, and, the latter had proceeded to make an order alike the one, as was passed by the Norfolk Court, and, which has been extracted hereinabove. 11. The above verdict, drawn by the Rajasthan High Court, against the wife, led her to file Criminal Appeal (supra), before the Hon'ble Apex Court. Upon the above appeal, the judgment (supra) became rendered. However, in the operative part of the judgment, the following directions became rendered, and, which becomes extracted hereinafter. '35. In case the wife does not inform the counsel for the husband within one week from today that she is willing to go back to USA then it shall be presumed that she has no intention to go to USA along with the child. In that event we issue the following directions:- (a) The wife shall handover custody of minor Kiyara to the husband or if the husband is unable to travel to India, then to the mother of the husband, before the Registrar General/Registrar(Judicial), of the High Court of Rajasthan on 03.02.2020 at 11.00 A.M. Thereafter, the husband shall make necessary arrangements for taking the child to USA accompanied by at least one of the husband's parents; (b) In case the child goes to USA with the husband or either of his parents, the husband shall ensure that the child talks to her mother through video calling facilities such as WhatsApp, Skype etc., everyday at 8.30 P.M. Eastern Standard Time on weekdays (Monday-Thursday) for at least 10 minutes each day and on weekends (Friday-Sunday) he shall ensure that the child talks to the mother at the same time or any other time mutually settled between the parties through video calling for at least 15 minutes. (c) We further direct that if the wife visits USA hereafter and is staying in the same town where the husband resides, she will be permitted custody of the child on all weekends from 6.00 P.M. on Friday till 6.00 P.M. on Sunday. (d) Even if the mother does not visit USA, the father shall ensure that the child visits India at least twice a year, once during the summer vacations and once during the winter break, as per the child's school schedule. (d) Even if the mother does not visit USA, the father shall ensure that the child visits India at least twice a year, once during the summer vacations and once during the winter break, as per the child's school schedule. It will be his responsibility to ensure that the child comes to India accompanied either by him or one of the grandparents of the child. During this period the child shall remain exclusively with the mother. However, in case the husband is also visiting with the child then during the period when the child is in India, the husband will have the custody of the child for 2 days per week, preferably on weekends or on other suitable days as settled by the parties.' 12. A perusal of the above extracted portion of the verdict, as made upon the criminal appeal (supra), also does not make any emergence(s), qua the above made argument before this Court, appertaining to the completest ouster of jurisdiction of the Civil Court concerned, rather ensuing, upon a habeas corpus Court being seized with a lis, appertaining to the custody of the child nor also there is any stark underlining thereins, that in all contingencies, and, circumstances, even if there is no stark evidence (supra) before the habeas corpus Court, yet it proceeding to entertain the apposite petition, and, rather its not directing the aggrieved to access the civil remedies, accessings whereof, as above stated, may rather ensure the eruption of best evidence, appertaining to the factum of the parent concerned, to become the valid recipient of the custody of the child. Since the above would occur only when a civil Court concerned, thereafter makes an objective appraisal of evidence of contesting parties, and, subsequently makes an objective verdict qua obviously the most befitting, suitable, and, optimum carings, and, nourishings, in all respects of a minor child, being purveyable to the ablest litigant concerned. In consequence, dependence thereons is misplaced, and, resultantly the above argument, as becomes rested thereons, is also rejected. 13. In consequence, dependence thereons is misplaced, and, resultantly the above argument, as becomes rested thereons, is also rejected. 13. The learned counsel for the petitioner has also relied, upon, a decision made by a Division Bench of this Court in LPA No. 811 of 2020, titled as Harpreet Singh @ Money and another versus Mandeep Kaur and others, whereins this Court became faced with the hereinafter extracted dilemma, and, it proceeded to make the direction(s), as contained thereins, and, which become reproduced hereinafter 'This Court vide aforesaid judgment held that till the question of custody of minor daughter is decided by the Guardian/Family Court, the welfare and interest of the minor child would be better served by entrustment of the interim custody to its mother-Petitioner(respondent No.1 herein) and allowed the petition with the following directions:- '(i) respondent No.4 is directed to hand over the custody of minor daughter to the petitioner on 15.11.2020 between 10.00 AM and 11.00 AM at the parental house of the petitioner; (ii) in case respondent No.4 fails to do so, respondents No.2 and 3 shall ensure that custody of minor daughter is immediately handed over to the petitioner by taking over the same from respondents No.4 and 5 (iii) respondent No.4 shall be at liberty to file petition under the HMG Act/the GW Act before the Guardian/Family Court for custody of the minor daughter; (iv) the Guardian/Family Court shall decide the question of custody of the minor daughter uninfluenced by the observations made by this Court by taking into consideration the welfare and best of interest of the minor daughter; (v) ill decision of the custody petition, respondent No.4 shall be entitled to meet the minor daughter on every Sunday for two hours between 10.00 AM and 05.00 PM or make video calls to the minor daughter for 15/30 minutes between 05.00 Pm and 06.00 PM as desired and to be conveyed in advance to the petitioner by respondent No.4; and (vi) respondents No.2 and 3 shall provide requisite protection to the petitioner and the minor daughter against harm at the instance of respondents No.4 and 5 during the period custody of the minor daughter remains with the petitioner.' 14. However, the above extracted legal dilemma, as became beset upon the LPA Court, especially with its appertaining to the aggrieved parent, being assigned the interim custody of the minor child concerned, till a decision with respect to the contentious lis, being subjudice, before the Guardian/Family Court, rather led to the makings of the above directions, and, obviously they are to be revered, as necessarily they became well founded, upon, tangible, and, cogent material. Resultantly also, the above decision(s) does not capture, the dilemma besetting this Court, and, appertaining to the civil remedy alternative to the habeas corpus remedy, rather suffering perennial ouster, in the face of recoursings of habeas corpus remedy, by the aggrieved parent, unless of course, stark evidence in respect of ill carings of the child by the errant parent, conspicuously emerges before the habeas corpus Court, and, thereupon, the judicial conscience of the habeas corpus Court deeming it fit to restore the interim custody to the most befitting parents. The above inference is drawn from mandates carried in judgments titled as, (1) Manju Tiwari versus Dr. Rajendra Tiwari, (SC) AIR 1990 SC 1156 , (2) Syed Saleemuddin Versus Dr. Rukhsana 2001(2) RCR (Criminal) 591, (3) Roxan Sharma versus Arun Sharma (SC) 2015(2) RCR (Civil) 93, (4) Eugenia Archetti Abdullah versus State of Kerala 2005(1) RCR (Civil) 259, (5) Surabhai Ravikumar Minawala versus State of Gujarat 2005(2) RCR (Civil) 822, (6) CRWP No. 68 of 2017 titled as Kirandeep Kaur versus State of Punjab and others' decided on 7.3.2017, and, (7) Gippy Arora versus State of Punjab and others 2012(4) RCR (Civil) 397 (PHHC). The legal foundation for the making of the above order qua the interim custody of the minor child to the ablest parent, rather survives only upto a decision being made by the Civil Court concerned. In other words, the expostulation of law, as made in the verdicts (supra), qua the habeas corpus Court permissibly making an order for restoration of interim custody of the minor child concerned, to the aggrieved ablest parent, makes it last, only till a decision with respect to his/her custody is made by the Guardian/Family Court. In other words, the expostulation of law, as made in the verdicts (supra), qua the habeas corpus Court permissibly making an order for restoration of interim custody of the minor child concerned, to the aggrieved ablest parent, makes it last, only till a decision with respect to his/her custody is made by the Guardian/Family Court. In other words, apparently they appertain to restoration of interim custody to the aggrieved parent, of the minor child, and, the above restoration of the interim custody, does survive or remain in tact, only upto a decision, in accordance with law, being made by the Civil Court of competent jurisdiction. Therefore, the above decision(s) obviously, are also made dependent upon cogent, and, reliable evidence becoming adduced, hence supporting the above claim for interim custody, and, also the apposite thereto evidence is also necessarily required to be existing before the habeas corpus Court. As a sequel, the above judgments, do not also underline any firm principle of law, that even if the requisite evidence, is amiss, before the habeas corpus Court, thereupon, yet it through assuming the role of parens patria or as a locus parentis qua the minor child, it proceeding to yet not direct the aggrieved parent, to recourse, the alternative civil remedy nor it has been propounded thereins, rather qua the recoursings by the aggrieved of ordinary civil remedies, the habeas corpus remedy being the most efficacious, and, most befitting remedy, hence for becoming through recoursed, for the purpose, of determining the validity or otherwise of the custody of the minor child with the parent concerned. 15. A reading of the above unrebutted evidence existing before this Court, does unfold, qua the optimum care giving, being purveyed to the minor boy Arjun, within the household of the private respondents concerned, therefore, this Court is not constrained to allow the petition. Moreover, even the restoration of the interim custody of the minor boy Arjun, to the petitioner, is not permissible. However, the petitioner can with the leave of the SHO concerned, and, to the convenience of the private respondents concerned, make visitations on her minor son, but only at a place, and, time convenient to all concerned. 16. Moreover, even the restoration of the interim custody of the minor boy Arjun, to the petitioner, is not permissible. However, the petitioner can with the leave of the SHO concerned, and, to the convenience of the private respondents concerned, make visitations on her minor son, but only at a place, and, time convenient to all concerned. 16. Be that as it may, irrespective of the above made conclusion appertaining to the disentitlement of the petitioner, to through a writ of habeas corpus, seek either interim or permanent custody of the minor child, and, which conclusion becomes founded, upon the afore unrebutted extracted paragraph, as carried in the reply, on affidavit, as furnished to the petition, by the official respondents concerned, yet rather this Court leaves it open to the petitioner, to yet access the ordinary civil remedies, for hers therethroughs claiming the custody of the minor boy. 17. With the above observations, the instant petition is dismissed.