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2023 DIGILAW 227 (RAJ)

Nasir Khan v. State of Rajasthan

2023-01-19

BIRENDRA KUMAR, PANKAJ BHANDARI

body2023
JUDGMENT Birendra Kumar, J. - The petitioner has sought for issuance of writ of habeas corpus for production of his two children, who are in wrongful detention of respondent No.5, the wife of the petitioner, since 05.11.2022. 2. The petitioner stated that he married with respondent No.5 on 07.06.2012. A son, Mr. Ibrahim Khan, was born on 04.08.2013 and a daughter, Khursheed Khan, was born on 26.04.2015 out of the wedlock. Since February 2020, respondent No.5 abandoned the petitioner as well as her children and the children were in the custody of the petitioner before 05.11.2022. The respondent No.5 asked the petitioner that the children be sent to her for a few hours and thereafter she would also return to stay with the petitioner along with the children. The petitioner acceded to the request of respondent No.5 but thereafter respondent No.5 did not sent back the children. 3. In the reply, respondent No.5 stated that wrong fact has been asserted by the petitioner in the writ petition rather respondent No.5 was bitterly assaulted by the petitioner in her matrimonial house and was thrown out from the house. The respondent No.5 is always ready and willing to live with the petitioner along with her children. 4. On direction of this Court, the corpus were produced before the Court along with respondent No.5. On 21.12.2022, the petitioner expressed before this Court his willingness to bring respondent No.5 and children to live together, respondent No.5 had also agreed for restoration of conjugal relation. This Court directed the petitioner to file an affidavit that he will take proper care of respondent No.5 and her children. In the affidavit, the petitioner stated that he is not ready for restoration of conjugal life with the wife rather he wants only custody of the children. 5. On 21.12.2022 and again on 16.01.2023, we interacted with the two children. They expressed that they want to live with their mother. Their mother is already a teacher and they are studying in Subodh Public School at Jaipur, a School having academic reputation. They further informed that the petitioner is having business of emeralds. The children stated that they would go with the father only if their mother goes with him. 6. They expressed that they want to live with their mother. Their mother is already a teacher and they are studying in Subodh Public School at Jaipur, a School having academic reputation. They further informed that the petitioner is having business of emeralds. The children stated that they would go with the father only if their mother goes with him. 6. We are conscious that the issue of illegal detention of minor children by either of the parents can be looked into while exercising jurisdiction of issuance of writ of habeas corpus. We are also conscious that a roving inquiry to ascertain the truth of assertion or denial, of the parties cannot be made in exercise of this jurisdiction. (Tejaswini Gaud and Others vs. Shekhar Jagdish Prasad Tewari and Others, reported in (2019) 7 Supreme Court Cases 42). 7. Learned counsel for the petitioner submits that the personal law of the parties would not come in the way of deciding illegal detention. The paramount consideration would be the welfare of the child. Learned counsel has placed reliance on the judgment of The Hon'ble Supreme Court in the case of Tejaswini Gaud (supra). Paragraph Nos. 26 and 27 of the judgment are being reproduced below:- '26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child. 27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu, it was held as under:- 49. In Goverdhan Lal v. Gajendra Kumar, the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live. 50. Again, in M.K. Hari Govindan v. A.R. Rajaram, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to 'human touch'. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. 51. In Kamla Devi v. State of H.P. the Court observed: '13. ... the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.' 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 the 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 well-being 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 well-being 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. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.' 8. As held above, the paramount consideration while dealing with the custody of the child would be the welfare of the child. While considering welfare of the child, due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. During interaction, the children stated that they are happy and comfortable with their mother. We noticed that they are happy with their mother and are in good health. Mother of the detenues is a teacher and the detenues are already attending school of their choice and capacity. Therefore, there is no scope to argue that the children would not get intellectual development with their mother, who is a teacher, unless they are replaced with a businessman father. The detenue-children stated that their maternal grandfather and grand-mother are also along with them and they are happy there. 9. Learned counsel for the petitioner relied on judgment of The Hon'ble Kerala High Court in Yousuff vs. S.I. of Police and Ors. reported in ILR 1993 (1) Kerala 511. As noticed above, the consistent view is that while deciding the custody of the child, paramount consideration should be welfare of the child and in the case on hand the welfare of the child lies in the custody of the mother. The case of Yousuff (supra) is not helping in the present case. reported in ILR 1993 (1) Kerala 511. As noticed above, the consistent view is that while deciding the custody of the child, paramount consideration should be welfare of the child and in the case on hand the welfare of the child lies in the custody of the mother. The case of Yousuff (supra) is not helping in the present case. In Yousuff case (supra) divorce had already taken place between the husband and wife and under an agreement between spouse, custody of the child was given to the father. Subsequently, the child was forcibly removed from the custody of father by the mother. In this case, neither divorce has taken place nor there is any agreement in between the parties wherein custody of the child was handed over to the petitioner. Therefore, this case is also distinguishable. 10. In Syed Saleemuddin vs. Dr. Rukhsana and Others reported in (2001) 5 SCC 247 , The Hon'ble Supreme Court noticed that the High Court had not paid any attention to the paramount consideration of welfare of the child while deciding the custody of the children, therefore this case is also distinguishable from the facts of the present case. 11. This Court cannot go into the disputed question of fact, while exercising writ jurisdiction as to whether respondent No.5 obtained the custody of the children by deceit i.e. by making false representation that the children would be sent back after a brief meeting, or assertion of respondent No.5 that she along with her children were thrown out from the matrimonial family. 12. Since welfare of the children is to allow to stay with their mother, we do not find any merit in this case, accordingly it stands dismissed. However, it is made clear that by interim measure, vide order dated 21.12.2022, this Court had allowed visiting rights to the petitioner to meet with his children at the place where respondent No.5 is residing. The visiting rights would continue once in a week as per convenience of the parties. It is further clarified that in the event of any proceeding for custody of the child before the Competent Court, the said Court shall not be prejudiced by this order.