Habeas Corpus dismissed in Custody Appeal

Supreme Court of India

CASE NO.:Appeal (crl.) 633 of 2005

PETITIONER:Rajesh K. Gupta

RESPONDENT:Ram Gopal Agarwala and others

DATE OF JUDGMENT: 28/04/2005

BENCH:CJI R.C. Lahoti & G. P. Mathur

JUDGMENT:J U D G M E N T(Arising out of S.L.P. (Criminal) No. 1471 of 2005)

Leave granted.
2. This appeal by special leave has been preferred against the
judgment and order dated 10.3.2005 of Delhi High Court by which the
habeas corpus petition filed by the appellant was disposed of with
certain directions.

3. The appellant Rajesh Kumar Gupta is an Advocate-on-Record
and is practicing in the Supreme Court of India since 1996. His
marriage with Smt. Aruna Gupta daughter of Shri Ram Gopal
Agarwala (respondent No. 1 herein) took place on 24.8.1997 and a
daughter Rose Mala was born out of the wedlock on 5.6.2003. It
appears that some differences have arisen between the appellant and
his wife Smt. Aruna Gupta and currently she is living along with her
parents, who have also been arrayed as respondent Nos. 1 and 2 in the
special leave petition. The dispute here is about the custody of the
child Rose Mala, who is with her mother. The appellant filed a
habeas corpus petition in the Delhi High Court seeking the custody of
his daughter Rose Mala mainly on the ground that she had been
abducted by respondent Nos. 1 and 2 on 6.3.2005 and that on account
of mental ailment with which his wife was suffering, the custody of
the child should be given to him.
4. After hearing learned counsel for both the parties the High
Court disposed of the petition on 10.3.2005 and the relevant portion of
the order reads as under: –
  Mr. R.K. Jain, Sr. Advocate, appearing for the
parents and the wife submits that Mrs. Aruna Gupta is
ready and willing to give an undertaking to this Court
that she would not leave the jurisdiction of this Court
until an appropriate order in that regard is passed by the
competent Court. We accept the said undertaking which
is given to us. On query to Mrs. Aruna Gupta, she has
categorically stated that she would like to stay with her
parents and would like to retain the custody of the child
and that she is not in a position to leave the child.
 Considering the facts and circumstances of the
case and also upon hearing the counsel for the parties and
also on talking to Mrs. Aruna Gupta and upon seeing and
observing the child who is found to be in good and
perfect condition, we are satisfied that the mother of the
child, Mrs. Aruna Gupta, could continue to retain the
custody of the child for the present. Ordered
accordingly. It shall, however, be open to the petitioner
to seek remedy for establishing his right of guardianship
in accordance with law which is available to him in the
Civil Court. If and when such a remedy is resorted to by
the petitioner by filing a petition, the same shall be
considered by the appropriate Court in accordance with
law. The order passed today giving custody of the child
to the mother shall be subject to the order, if any, passed
by the civil court. Till then, the custody of the child shall
remain with the mother, namely, Mrs. Aruna Gupta.
 In terms of the aforesaid order this petition stands
disposed off.

5. Shri Gopal Subramanium, learned senior counsel for the
appellant, has submitted that the marriage of the appellant with Smt.
Aruna Gupta was an arranged marriage, which took place on the basis
of an advertisement in the newspaper. After marriage it was revealed
that Smt. Aruna Gupta was suffering from serious mental disorder of
paranoid schizophrenia for almost two decades. She had been treated
in U.S.A. for her illness as at the relevant time her father Shri Ram
Gopal Agarwala was working there. After the marriage when the
appellant discovered that she was suffering from mental ailment, she
was treated in the All India Institute of Medical Sciences. In this
connection learned counsel has drawn the attention of the court to the
medical reports prepared in several hospitals where Smt. Aruna Gupta
had been admitted and had been given treatment for the disease
paranoid schizophrenia with which she has been suffering. Learned
counsel has further submitted that life and health of baby girl Rose
Mala would not be safe, if she is allowed to remain in the custody of
the mother. He further submitted that the mother of the appellant will
be living with him and she will be able to look after the child.
6. Shri R.K. Jain, learned senior counsel appearing for the
respondent Nos. 1 to 3, controverted the submissions made by the
learned counsel for the appellant and has submitted that Smt. Aruna
Gupta is in perfect health and is not suffering from any mental
ailment. He has further submitted that the baby girl Rose Mala is
being well looked after. She is in fine condition and the apprehension
of the appellant that she would not get proper care from her mother
has no basis.
7. It is well settled that in an application seeking a writ of habeas
corpus for custody of minor child, the principal consideration for the
court is to ascertain whether the custody of the child can be said to be
lawful or illegal and whether the welfare of the child requires that the
present custody should be changed and the child should be left in the
care and custody of someone else. It is equally well settled that in
case of dispute between the mother and father regarding the custody
of their child, the paramount consideration is welfare of the child and
not the legal right of either of the parties [see Dr. (Mrs.) Veena
Kapoor vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed
Saleemuddin vs. Dr. Rukhsana and others (2001) 5 SCC 247]. It is,
therefore, to be examined what is in the best interest of the child Rose
Mala and whether her welfare would be better looked after if she is
given in the custody of the appellant, who is her father.
8. The medical reports of Smt. Aruna Gupta regarding her
treatment in some hospitals in U.S.A. are mostly of the year 1984 and
the doctor of Holy Cross Hospital, U.S.A. recorded his assessment as
under: -Borderline personality disorder with no obvious medical
problems on examination or in the laboratory.

PLAN:No further medical intervention is necessary.

The medical reports of All India Institute of Medical Sciences, which
are of the year 2000, do not show that she has been suffering from any
such mental ailment, which may be termed as serious. In fact,
according to the appellant himself Smt. Aruna Gupta is a case of
paranoid schizophrenia and not any kind of serious mental ailment.
9. It is important to note that the appellant is in the profession of
law being an Advocate-on-Record in the Supreme Court. A lawyers
profession is very exacting and busy profession and requires lot of
time. The appellant has submitted that his mother will come and stay
with him, who will look after the child. It is admitted that currently
Smt. Aruna Gupta is living with her parents. Her father Shri Ram
Gopal Agarwala did his Doctorate in Econometrics from Manchester
University, U.K. in the year 1966 and joined the World Bank in 1971
where he held very senior positions. He is, therefore, a well-educated
and financially sound person who can look after the needs of his
daughter and also the granddaughter. The mother of Smt. Aruna
Gupta, namely, Smt. Bimala Agarwala, aged about 60 years, is also
there to look after the child if an occasion arises. The learned judges
of the High Court before whom Smt. Aruna Gupta appeared along
with Rose Mala and had also talked to her, have recorded that the
child was in good and perfect condition and Smt. Aruna Gupta could
be allowed to retain her custody. Having given our careful
consideration to the submissions made by the learned counsel for the
parties and to the material placed before us, we do not find any ground
to take a contrary view and disturb the present custody of Rose Mala
and give her in the custody of the appellant.
10. The appeal, therefore, lacks merit and is dismissed.