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2023 DIGILAW 568 (ALL)

Sarita Verma v. State Of U. P.

2023-02-27

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Counter affidavit and Vakalatnama filed by Shri Sanjay Singh, learned counsel for respondent Nos. 4 to 7 is taken on record. 2. Learned counsel for the petitioner, Shri Sharad Chand Rai, learned counsel for private respondent Shri Sanjay Singh and learned A.G.A. for the State are present. 3. The corpus Vaishnavi and Ram Soni are produced before the Court by S.I. Mridul Mayank Pandey, P.S.- Kotwali Nagar, District Sultanpur and respondent No. 4 Shri Rakesh Soni. The statements of corpus Vaishanavi and Ram Soni has been recorded before the Court. Corpus Vaishnavi stated that she is aged around 13 years and her date of birth is 16.01.2010, she stated that she is receiving education in supervision of her father at Stella Maris Convent School, Sultanpur, her younger brother Ram Soni is also receiving education in same school. She stated that she is happily residing with her father and she is not willing to go with her mother, in fact, her mother never came to her parental home to meet her. She expressed her disinclination to go and live with her mother. Similarly, child Ram Soni stated her age around 10 years and there is no dispute regarding his age. He further submitted that he is studying in Class III in same school, where his sister is studying. He also stated that he is happily residing with his father and is not willing to go and live with his mother. 4. Heard submissions of learned counsel for the parties as well as learned A.G.A. for the State. 5. Learned counsel for the petitioner placed reliance on observations of this court in Habeas Corpus petition No. 165 of 2022 Km. Sanaya Sharma (Minor) and Another Vs. State of U.P. and 4 others, decided on 07.04.2022 wherein claim for custody was made by mother of the children Km. Sanaya Sharma aged 5 years and Master Tanisk Sharma aged around 2 and a half year, who were residing with their grand-mother due to death of their father, who committed suicide on 16.11.2020. On account of suicidal death of father of the children an F.I.R. was lodged by one Akash Sharma against their mother Seema Sharma, the petitioner and 5 others, in which investigation was under way. On account of suicidal death of father of the children an F.I.R. was lodged by one Akash Sharma against their mother Seema Sharma, the petitioner and 5 others, in which investigation was under way. After sad and unfortunate demise of Akash Sharma, his wife Seema Sharma, the petitioner, started living with her sister at Moradabad, independently, whereas, her small kids, namely, Sanaya and Tanishk remained in the company of their grand-mother. This Court considered the provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, wherein it is provided that in 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; 6. According to this Court, Section 6A of the said Act preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person, whilst the child is less than five years old. It carves out the exception of interim custody, in distinction of guardianship, and then specifies that custody of a minor who has not completed age of 5 years shall ordinarily be with the mother. 7. In above case, this Court after considering the fact that one children out of two was barely of 5 years, whereas the younger one was about 2 and a half year old, both of them were minor and not of an impressionable age, who deserves unqualified love, affection and protection of their mother, who is their natural guardian and therefore, the custody of both children were handed over to their mother by orders of this Court and their grand-mother was provided a visitation right once in a week and every Saturday between 12.00 noon to 05.00 P.M. 8. However, the facts of present case are different as out of two children whose question of custody is under consideration before this Court, one of them is minor girl, namely, Vaishnavi aged around 13 years and the other is male child, namely, Ram Soni aged around 10 years and both of them were produced before this Court by their father on rule nisi issued by this Court. They are being imparted proper education by their father and a number of photographs of their extra-curricular activities in school as well as birthday celebration are filed along with counter affidavit of Respondent No. 4 to 7. The children have themselves expressed their disinclination to go and reside with their mother. Although, this is unfortunate, yet this is the state of affairs which reflects from their statement before the Court. Both the sides have made allegations against each other in their respective pleadings regarding the conduct and behaviour of other side, however, those facts are not to be gone into while deciding the present habeas corpus petition. 9. The writ petition of Habeas Corpus is a prerogative writ and an extraordinary remedy, it is writ of right and not writ of course and may be granted only on reasonable ground or probable cause being shown. 10. The Hon'ble Apex Court in Syed Saleemuddin Vs. Dr. Ruksana and Others 2001 (5 SCC 247) considered the object and scope of writ of habeas corpus in the context of a claim relating to custody of minor child and held that in Habeas Corpus petition, seeking transfer of custody of child from one parent to the other, the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed. The principle is well settled that in a matter of custody of a child, the welfare of the child is of paramount consideration of the Court. 11. Taking similar view in the case of Nithya Anand Raghavan Vs. State (NCT of Delhi) 2017 8 SCC 454 , it was held by Apex Court that the principal duty of the Court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. 12. In this case, Apex Court quoted with approval its observation in Kanu Sanyal Vs. District Magistrate, Darjeeling (1973) 2 SCC 674 , wherein it was held that habeas corpus is essentially a procedural writ dealing with machinery of justice. 12. In this case, Apex Court quoted with approval its observation in Kanu Sanyal Vs. District Magistrate, Darjeeling (1973) 2 SCC 674 , wherein it was held that habeas corpus is essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court. On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful restraint pass, appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person’s freedom and his release when the detention is found to be unlawful. 13. The question of maintainability of habeas corpus petition under Article 226 of the Constitution for custody of minor was examined in Tejaswini Gaud and others Vs. Shekhare Jagdish Prasad Tiwari and others (2019) 7 SCC 42 , wherein the Supreme Court has held in para 20 and 26 as under:- "20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exception cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. 26. It is only in exception cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus. 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." 14. In custody of minor, writ of habeas corpus would be entertainable where it is established that the detention of minor child by the parent or others is illegal and have no authority of law. In writ court, the rights are determined on basis of affidavits, in a case where the Court is of the view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum. The remedy ordinary in such matters would lie under the Hindu Minority and Guardianship Act. In present case, even if the facts of the case are examined on anvil of provisions of Section 6 of Hindu Minority and Guardianship Act, the custody of the children Vaishnavi and Ram Soni with their father and grand-parents cannot be held to be unlawful or illegal, as the children have crossed the age limit of 5 years, which provides that custody of minor boy or an unmarried girl who has not completed the age of 5 years shall ordinarily be with the mother the and after him the father will be natural guardian of a Hindu minor boy or an unmarried girl. Therefore, neither the custody of minor with their father or grandparents appear to be unlawful in the facts and circumstances of the case as well as under provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, it cannot be held that the custody of minor children with father and grand-parents is against their welfare or interest. Therefore, neither the custody of minor with their father or grandparents appear to be unlawful in the facts and circumstances of the case as well as under provisions of Section 6 of Hindu Minority and Guardianship Act, 1956, it cannot be held that the custody of minor children with father and grand-parents is against their welfare or interest. They are receiving education in proper manner and have expressed their desire to live with their father and grandparents at their parental home, unfortunately, the relationship between their parents are estranged and instead of residing together and offering their love and affection to the children, they are living separately for their own reasons and justification. The paramount consideration in such type of cases is welfare of the children also and in facts of present case, it does not permit the transfer of custody of the minor children from their father to mother. Therefore, the prayer made in the petition is rejected. However, the petitioner is at liberty to raise her claim for custody of children at Family Court and all necessary claim are open to be raised before the said forum or in other appropriate proceedings. Having regard to the aforesaid facts and circumstances, rule nisi issued earlier is not required to be made absolute, it is discharged. Keeping in view, the fact that both the sides have offered visitation right to the children to other party, in case of retention or transfer of custody in favour of the other and the welfare of the children also requires that they should receive love and affection of both parents which will help in their emotional, mental and psychological growth in proper manner. 15. 15. Therefore, it is directed that the petitioner Sarita Verma, mother of the children have visitation rights over her children once in a week and every Sunday between 12 Noon to 05:00 P.M. usually, at the place of her husband, subject to proper arrangements made between spouse and the father of the children Rakesh Soni is bound to provide the congenial atmosphere and facilitate the proposed meeting between the mother and her two children and would not create any hindrance or obstacle in the same and in case of his non-cooperation, the petitioner will be at liberty to approach S.H.O. concerned, who will provide necessary arrangements, which will ensure the compliance of the direction of this Court with regard to visitation right of the petitioner. Respondent No.4 Rakesh Soni, the father of the children will also facilitate the WhatsApp and video call between mother and the children in case, she desires at least twice a week. 16. The corpus- Vaishnavi and Ram Soni are permitted to go back to the place from where they have been brought today by respondent No.4-Rakesh Soni. 17. With above observations, the habeas corpus petition is disposed of.