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2023 DIGILAW 451 (ALL)

Vivan v. State of U. P.

2023-02-15

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the petitioners, learned counsel for the private respondents and learned A.G.A. for the State. 2. Corpus Vivan aged around 8 years and Divyansh aged around 3 years have been produced before this Court by respondent nos. 4 to 7. Corpus Vivan is identified his father Vijay Vikram, deponent in present petition. The second corpus Divyansh could not identify his father as he is too young. Corpus Vivan stated that he intends to reside with her Mausi and maternal grand parents. He expressed his dis-inclination to go or live with his father. 3. Learned counsel for the petitioners submitted that children who are corpus in present case are sons of deponent, who are too younger to decide their future. They are brainwashed by their maternal grandfather and Mausi (aunt). In-laws of deponent had taken away his both sons along with them after death of his wife Smt. Sweta, who died on 29.4.2022 and they are residing with their maternal grandparents for more than nine months and they have been produced by them who are impleaded as respondents in present case. Deponent operates a GST Seva Kendra. Deponent resides with his father who is retired Bank Manager and the deponent is although an accused in a Case Crime No. 89 of 2022 lodged on 1.5.2022 under Section 306 IPC on account of alleged suicidal death of his wife, however, he is enlarged on bail. He undertakes to ensure welfare of the children if they are granted in his custody. 4. Per contra, learned counsel for the private respondents submitted that atmosphere of the house of deponent is polluted. His own mother resides separately from his father. Private respondents are well educated people. Respondent no. 7, aunt (Mausi), of the corpus is a Bank employee in Bank of Baroda and all the respondents are taking due care of the corpus. They are receiving appropriate education in their supervision. 5. Learned counsel for the respondents placed reliance on a judgment of Hon'ble Supreme Court in Nil Ratan Kundu and Another Vs. Respondent no. 7, aunt (Mausi), of the corpus is a Bank employee in Bank of Baroda and all the respondents are taking due care of the corpus. They are receiving appropriate education in their supervision. 5. Learned counsel for the respondents placed reliance on a judgment of Hon'ble Supreme Court in Nil Ratan Kundu and Another Vs. Abhijit Kundu, (2008) 9 SCC 413 wherein Hon'ble Apex Court while interpreting provisions of Section 17(1), (2), (3), 7 and 4(1), 4(2) and (3) of Guardianship and Wards Act as well as Sections 2, 4, 6 and 13 of Hindu Minority and Guardianship Act, 1956 and Section 26 of Hindu Marriage Act held that in determining the question as to who should be given the custody of minor child, the paramount consideration is the welfare of the child and not the rights of the parents under statute for the time being in force. The legal position in India follows the doctrine laid down in English and American Law. In that case A was the son of the respondent. Allegedly, A' s mother, M had been continuously tortured by the respondent for bringing more dowry from her parents, the appellants here. On day M was brutally assaulted by the respondent and his mother which resulted in her death. The appellants herein lodged F.I.R. against the respondent and his mother under Sections 498-A and 304 IPC. The respondent was consequently arrested. A, who at that time was only five years old, was found in sick condition at the respondent's residence. His custody was then handed over to the appellants. The appellants maintained the child with utmost love and affection and got him admitted to a well-reputed school. 6. During the pendency of the criminal case, the respondent was enlarged on bail. He then filed an application under the Guardians and Wards Act, 1890 seeking custody of A. The appellants opposed that application. The trial court allowed the application and held that the respondent was the natural guardian of A and the present and future of A would be better secured in the custody of the respondent. Accordingly, it directed the custody of A to be "immediately" given to the respondent. This order was upheld by the High Court. The appellants then filed the present appeal by special leave. 7. Accordingly, it directed the custody of A to be "immediately" given to the respondent. This order was upheld by the High Court. The appellants then filed the present appeal by special leave. 7. Hon'ble Apex Court allowed the appeal filed by mother of the child and observed that the trial court's order to hand over minor to such guardian (father) immediately and High Court's order to do so within 24 hours positively was not proper on application of the father of the child which was opposed by his maternal grandparents with whom child was lying. 8. In deciding a difficult and complex question as to custody of 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 humane 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. 9. Hon'ble Apex Court further observed that it is not the negative test' that the father is not ‘unfit' or disqualified to have custody of his son/daughter is relevant but the ‘positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian. 10. 10. As regard the trial court's direction to hand over the custody of the child "immediately" by removing him from the custody of his maternal grandparents and the High Court's order to hand over the child to his father within twenty-four hours positively, it has to be held, that a child is not "property" or "commodity". The issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. 11. Hon'ble Apex Court further observed that examination of the child helps the court in performing its onerous duty in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged group child. Moreover, final decision rests with the court which is bound to consider all questions to make appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given. In the present case trial court ought to have ascertained the wishes of the child as to with whom he wanted to stay. The child was called in the chamber of judges deciding the present case. He admitted to be quite intelligent. When asked whether he wanted to go to his father and stay with him, he unequivocally refused to go with him or to stay with him. He also stated that that he was very happy with maternal grand parents and would like to continue to stay with them. It has, therefore, to be held that in would not be proper on the facts and circumstances to give custody of the child to his father, the respondent herein. 12. In above case also mother of the child died unfortunate death and the father of the child was arrested in a case lodged by parents of the deceased wife under Section 498-A IPC and Section 304-B IPC as she was repeatedly brutally assaulted by her husband and his mother, and after death of his wife and after death of mother of corpus, custody of child was handed over to maternal grandparents. At that time, he was only of five years. It was his maternal grandfather, appellant no. 1, who maintained the child with utmost love and affection. He was imparted education in a reputed college in Kolkata. 13. At that time, he was only of five years. It was his maternal grandfather, appellant no. 1, who maintained the child with utmost love and affection. He was imparted education in a reputed college in Kolkata. 13. Hon'ble Apex Court in above case cited various Authorities in English and American Law held that ordinarily basis for issuance of writ of habeas corpus is an illegal detention; but in the case of such a writ issued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child. The legal position in India follows the this doctrine. There are various statutes which gives legislative recognition to these well established principles. Section 4 of the Guardian and Wards Act defines "minor" as a person who had not attained the age of majority. "Guardian means a person having care of the person for a minor or of his property, or of both his person and property." "Ward" is defined as a minor from whose person or property or both, there is a guardian. 14. Hon'ble Apex Court further reproduced statutory provisions in paragraph nos. 31, 32, 35, 36, 37 which are reproduced as under"- 31. Chapter II (Sections 5 to 19) relates to appointment and declaration of guardians. Section 7 deals with ‘power of the Court to make order as to guardianship' and reads as under: 7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 32. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 32. Section 8 of the Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced; 17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will. (emphasis supplied) 35. Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "1956 Act") is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as a person who has not completed the age of eighteen years. "Guardian" means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act. 36. Section 6 enacts as to who can be said to be a natural guardian. It reads thus; 6. Natural guardians of a Hindu Minor. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act. 36. Section 6 enacts as to who can be said to be a natural guardian. It reads thus; 6. Natural guardians of a Hindu Minor. --The natural guardians 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 the 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 becoming a hermit (vanaprastha)or an ascetic(yati or sanyasi). Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother. 37. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso; 13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. (emphasis supplied) 15. In Saraswatibai Shripad Ved Vs. Shripad Vasanji Ved, AIR 1941 Bom 103, the High Court of Bombay stated that it is not the welfare of the father, nor the welfare of the mother i.e. paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration. 16. In Surinder Kaur Sandhu Vs. Shripad Vasanji Ved, AIR 1941 Bom 103, the High Court of Bombay stated that it is not the welfare of the father, nor the welfare of the mother i.e. paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration. 16. In Surinder Kaur Sandhu Vs. Harbax Singh Sandhu, (1986) 3 SCC 698, Hon'ble Apex Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 consitutes the father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. 17. In Mausami Moitra Ganguli Vs. Jayant Ganguli, (2008) 7 SCC 673 , Hon'ble Apex Curt has held in paragraph no. 20 as follows:- 20 "The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration." 18. Hon'ble Apex Court in Nil Ratan Kundu (supra) placeing reliance on Rosy Jacob Vs. Jacob A. Chakramakkal, 1973(1) SCC 840 , observed that "we may only state that a child is not "property" or "commodity". To repeat issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. ............................................ Jacob A. Chakramakkal, 1973(1) SCC 840 , observed that "we may only state that a child is not "property" or "commodity". To repeat issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. ............................................ One of the matters which is required to be considered by a court of law is the "character" of the proposed guardian. 20. In Kirtikumar Maheshankar Joshi Vs. Pradipkumar Karunashanker Joshi, (1992) 3 SCC 573 , Apex 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, thus a complaint against father alleging and attributing the death of the mother under Section 498-A IPC is indeed a relevant factor and the court of law must address the said circumstance while deciding the custody of the minor in favour of such a person. 21. From perusal of material on record it appears that maternal uncle of the children Yogesh lodged an F.I.R. against deponent, father of the corpuses, and his father under Section 323, 504 IPC on 29.12.2014 at P.S. concerned with allegation that they had assaulted and abused the victim Shweta who happens to be his sister. The deceased wife of the deponent/petitioner had also lodged a case under Section 12 of the Protection of Women from Domestic Violence Act in Etawah in which interim maintenance was ordered by competent court to the wife of the deponent. She had also lodged an F.I.R. against her husband and in-laws on 5.7.2015 under Sections 498-A, 323, 504, 506 and Section 3/4 D.P. Act with allegation of demand of dowry and subjecting her to matrimonial cruelty against named accused persons at P.S. Diviyapura, District Auraiya. Unfortunately she died unnatural death on 29.4.2022 as alleged, by consuming some poisonous substance and her cremation took place on 30.4.2022. After death of the mother of the corpuses, her father Suresh Chandra Yadav lodged an F.I.R. on 1.5.2022 vide crime no. Unfortunately she died unnatural death on 29.4.2022 as alleged, by consuming some poisonous substance and her cremation took place on 30.4.2022. After death of the mother of the corpuses, her father Suresh Chandra Yadav lodged an F.I.R. on 1.5.2022 vide crime no. 89 of 2022 under Section 306 IPC against deponent, father of the corpuses, and his family members with allegation of subjecting the deceased to matrimonial cruelty on account of non-fulfillment of demand of dowry and her continuous torture physically and mentally committed by them and now the deponent, father of the corpuses, is enlarged on bail in that case under Section 306 IPC, however, he has been alleged to have abetted the mother of the corpuses to commit suicide, who happened to be his wife thus, relations of husband and wife remained strained just after some time of their marriage and ultimately she allegedly committed suicide. The corpus Vivan aged around 8 years and Divyansh aged around 3 years respectively have appeared before this Court today. Vivan categorically stated that he intends to reside with her maternal grandparents and her mausi (aunt). He expressed his disinclination to go or live with his father, who has filed the present petition on their behalf. The second corpus Divyansh could not identify his father as he is too young and therefore his desire could not be elicited. It is submitted on behalf of private respondents, maternal grandparents and mausi (aunt) of the corpuses that family atmosphere of the deponent, father of the corpuses, is not conducive to their health growth and polluted. His own mother resides separately from his father. Private respondents are well educated and resourceful person and are able to take proper and due care of the children as they are lying with them, to ensure over all development. In counter affidavit, bona fide certificate has been filed which is issued by the Principal of Tapasthali Public School, Mainpuri which bears dated 10.10.2022 in which it is stated that Vivan s/o Vijay Vikram Singh is a student of class-3 in his school. He was admitted to the school by his maternal grandfather on 6.7.2022. The maternal grandfather of the child is also bearing all the academic expenses of the child and they are ready to carry on nurturing of both the children of their deceased's daughter. 22. This Court in habeas corpus writ petition no. He was admitted to the school by his maternal grandfather on 6.7.2022. The maternal grandfather of the child is also bearing all the academic expenses of the child and they are ready to carry on nurturing of both the children of their deceased's daughter. 22. This Court in habeas corpus writ petition no. 389 of 2020 (Master Aryan and Another) decided on 1.3.2021 wherein it was held that in that case the child appeared a bright and intelligent on his protection before the Court. He expressed his feelings of animosity feelings for his mother who was facing a charge about her husband's death in relation to which she was subjected to trial and there was a possibility, remote or not so remote, that she might be convicted and sentenced on the charge relating to her husband's (minors' father) murder. If that were to happen while minors are staying with her it would create trauma to the minors, to know that their mother, with whom they have bonded and are living, stands convicted of the father's murder and on that count, this Court dismissed habeas corpus petition filed by the mother of the children who were residing with their parental uncle and aunt after death of their father. 23. Considering rival submissions of learned counsel for the parties, facts and attending circumstances of the case and the judicial authorities of the Hon'ble Apex Court as well as this Court cited above and keeping in view the paramount interest of the welfare of the children who are presently lying in custody of their maternal grandparents and elder of them has expressed his unequivocal desire to reside with them and peculiar facts of the case that father had sought custody of the child in present habeas corpus petition who is facing charge of abatement of commission of suicide of his wife, the mother of the children, this Court does not find good ground to make the rule nisi absolute. It is accordingly, discharged. 24. In the result, this petition fails and stands dismissed.