HIGH COURT OF JUDICATURE AT ALLAHABAD
Chief Justice’s Court
Case :- SPECIAL APPEAL No. – 579 of 2016
Appellant :- Satish Singh And 2 Others
Respondent :- State Of U.P. And 4 Othrs.
Counsel for Appellant :- Ram Pratap Yadav
Counsel for Respondent :- C.S.C.,Rahul Srivastava
Hon’ble Dilip B. Bhosale,Chief Justice
Hon’ble Yashwant Varma,J.
The respondents in a petition seeking a writ of habeas corpus are in appeal and challenge the judgment rendered by a learned Single Judge on 22 August 2016 in terms of which the writ petition came to be allowed and the appellants herein were directed to hand over the custody of the corpus to the petitioner who stands arrayed as the fourth respondent herein.
The habeas corpus petition itself was in respect of a claim by the fourth respondent to obtain custody of the respondent No. 5, a minor girl child aged two, his daughter. The facts on which there is not must dispute are as follows.
The fourth respondent was married to the daughter of the appellant Nos. 1 and 2 on 24 February 2011. During her pregnancy, the wife is said to have moved to the house of the appellant Nos. 1 and 2 where while giving birth to the fifth respondent she is stated to have died on 7 March 2014. Since the time of the death of the wife, the minor child has remained in the custody and care of the appellant Nos. 1 and 2 [the grandparents] and the appellant No. 3, the brother of the deceased who is also married. The fourth respondent is stated to have subsequently married one Shilpi Singh on 26 May 2015. Prior to the filing of the writ petition, the fourth respondent also filed a petition under Section 266 of the Indian Succession Act praying for grant of Letters of Administration in respect of properties stated to be present in a locker standing in the name of the deceased. In the said proceedings, the fourth respondent on 16 March 2016 is stated to have filed an amendment application for impleadment of the minor child pursuant to an order of the concerned Court dated 3 February 2016. The learned Single Judge while proceeding to decide the writ petition posed the following question for consideration :
“The only point that is to be seen in the present petition whether petitioner no. 2 can be held dis-entitle for the custody of the corpus on the basis of remarriage.”
Ultimately the writ petition itself came to be allowed by the learned Single Judge by holding that the fourth respondent, the father of the minor child, could not be deprived of parental custody. The relevant extract of the judgment rendered by the learned Single Judge reads thus:
“In the circumstances, it is held that re-marriage of father, after the death of first wife cannot be the ground for depriving the father from his parental right of custody of corpus.
It is further held that father is natural guardian of the corpus and the custody to other persons can only be given in case compelling circumstances are there.
In the present case no compelling circumstances are there although petitioner no. 2 has solemnised remarriage but nothing untoward is being alleged against the present wife of the petitioner no. 2. Unless corpus is to be in the custody of couple, it cannot be said that being a stepmother second wife of the petitioner no. 2 will not take proper care of the corpus. In the circumstances, this court is of the view that custody of the corpus in the hand of respondent nos. 4 to 6 is illegal and they cannot be allowed to retain that. Petitioner no. 2 is natural guardian of the corpus and love and affection of the father is basic requirement for a child and in the custody of respondent nos. 4 to 6 she will be deprived of that.
In view of the above, this writ petition is allowed and custody of corpus is given to the petitioner no. 2. Respondent nos. 4 to 6 are directed to handover the custody of corpus to the petitioner no. 2 within a month from today.” (emphasis supplied)
In our considered view, the learned Single Judge grossly erred in allowing the writ petition and issuing the writ on grounds which stand extracted herein above. The learned Single Judge clearly misdirected the inquiry and consideration which such proceedings necessarily entail and this is evident from the issue itself which came to be formulated for decision. The learned Single Judge virtually converted the writ petition into a petition for custody under the Guardians and Wards Act, 1890. The learned Single Judge also did not record any finding in respect of legality of the detention. As is evident from the question which was posed, it is apparent that the learned Single Judge proceeded on a wholly incorrect premise. As is well settled, in proceedings relating to the custody of a minor child, the issue to be posed and answered is not the right of the person seeking custody but the welfare of the child. Where proceedings for habeas corpus are initiated seeking the custody of a minor child with the allegation that the child has been illegally detained, the paramount consideration always is and must be the welfare of the child and not the right of a parent. We may on this aspect only note the following observations as made by the Supreme Court in Gaurav Nagpal Vs. Sumedha Nagpal 1 :
” 45. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103; the High Court of Bombay stated;
“It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration.”
46. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
47. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.
48. Merely because there is no defect in his personal care and his attachment for his children–which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.”
On account of this fundamental flaw on the basis of which the consideration of the writ petition proceeded, the learned Single Judge went on to hold that the remarriage of the fourth respondent cannot be a ground for depriving him of custody of his minor daughter. The learned Single Judge thereafter on a bald ipse dixit proceeded to observe that the custody of the minor child in the hands of the appellants was illegal and that they could not be permitted to retain custody.
From the above narration of facts and consideration of the legal principles which govern the issue at hand, it was clear and apparent to us that the judgment and order of the learned Single Judge could not be sustained. However, since the issue itself related to the custody of a minor girl child aged two years, we ourselves decided to dwell a little deeper and rather than relegating parties thought it fit to consider the issue on merits. We accordingly called upon the learned counsels appearing for the contesting parties to address us on the merits of the claim for custody by our order dated 19 September 2016. The judgment and order of the learned Single Judge was also stayed in order to enable us to consider the issue further.
On 30 September 2016, we met the parties as well as the minor child in chambers. After interacting with the parties, we posted the matter for further hearing while granting liberty to the fourth respondent and his second wife to meet the minor child as and when they desired at the appellants’ house. The appeal was thereafter set down for hearing on 9 May 2017. On the said date, after hearing learned counsels for parties, we posted the appeal for further hearing today and once again requested the learned counsels to ensure the presence of all parties in chambers.
Pursuant to the said direction, we have held detailed interactions with the appellants as also the wife of the appellant No. 3 as well as the fourth respondent, his second wife and family members. We also had a brief interaction with the minor child and were able to observe her demeanour and her interaction with respective parties.
The impression that we have gathered during the course of this interaction is that the minor child is being well looked after by the appellants. She appeared to have a strong emotional bond with the appellant No. 3 and his wife as well as the grand parents. The ties of affection between the appellants and the minor child were evident. We were also informed that her schooling and education is being well looked after and that she is regularly attending a play school. During the course of interaction, it was more than evident that the minor child was not familiar with the fourth respondent. This appears to be the outcome of the sad but undisputed fact that the fourth respondent, the father, met the minor child, as per his own admission, only post October 2016 pursuant to the liberty granted by us in terms of our order dated 30 September 2016. We have also to bear in mind that the issue at hand is in respect of a child who is at an extremely tender and vulnerable age. From the impression gathered in the course of interaction with the parties and the circumstances as they appear to us, we are of the considered view, that no change in the custody of the minor child is warranted at this stage. The removal of the minor child from the custody of the appellants at this stage would clearly have a grave psychological impact and may also leave deep scars on her psyche itself. In any view a change in custody may at this stage be not only unsettling but also traumatic. The fourth respondent will have to regularly meet the child at short intervals in order to develop a rapport and perhaps then apply for custody from the appropriate court. More importantly, from the submissions advanced before us and the statements made by the contesting parties in chambers, we are unable to hold that the appellants are not taking all steps conducive to the welfare and the well being of the minor child.
As noted above, the issue which confronts is not the right of the fourth respondent to claim custody but the welfare of the minor child. We have also taken into consideration the fact that these proceedings and the issue of custody connected therewith are not only summary in nature but also of a temporary character as all cases of custody naturally are. Our observations as made in this order are not intended to denude the right of the fourth respondent to apply for custody afresh and at an appropriate time. The primary issue with which we have grappled is as to whether circumstances exist and warrant a change in the custody of the fifth respondent in light of the material on record and the facts and circumstances as evidenced by us. To this issue, our answer is in the negative and therefore, we find sufficient reason to set aside the judgment and order of the learned Single Judge and to consequently dismiss the writ petition.
While dismissing the writ petition however, we are of the considered view that the ends of justice would merit appropriate directions being issued permitting visitation rights to the fourth respondent in order to enable the minor child to become familiar with her natural father and hopefully renew and establish ties and bonds which have come to be fractured and severed on account of the unfortunate death of the mother .
We accordingly allow the instant special appeal and set aside the judgment and order of the learned Single Judge dated 22 August 2016. While we dismiss the writ petition preferred by the fourth respondent, we hereby direct and provide that it shall be open to the said respondent to visit the minor child as and when desired subject to the appellants being intimated at least 48 hours prior to the intended date of his visit. We further provide that if the fourth respondent chooses to visit his minor daughter, the appellants shall create no hindrance to the said meetings and ensure that these exchanges are held in an amicable and familial atmosphere.
Order Date :- 18.5.2017
(Dilip B Bhosale, CJ)
(Yashwant Varma, J)