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Master Vaibhav Shukla(Minor) … vs State Of U.P. Thru. Prin. Secy. … on 18 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Reserved on: 03.12.2019

Delivered on: 18.12.2019

Court No. – 14

Case :- HABEAS CORPUS No. – 38173 of 2018

Petitioner :- Master Vaibhav Shukla(Minor) Thru.Grand Mother Sushma Shukla

Respondent :- State Of U.P. Thru. Prin. Secy. Home,Lko. Ors.

Counsel for Petitioner :- R.B.S. Rathaur,Indra Prakash Singh

Counsel for Respondent :- G.A.,Rahul Singh ‘Rana’

Hon’ble Irshad Ali,J.

(1) Heard learned counsel for the petitioner, learned A.G.A. for the State and learned counsel for the respondent No.3.

(2) Present writ petition under SectionArticle 226 of the Constitution of India has been filed for issuance of a writ in the nature of habeas corpus directing respondents to produce the petitioner Vaibhav Shukla before this Court, set him at liberty and allow him to go and live with his grandparents.

(3) For adjudication of the controversy, it is necessary to narrate some facts in brief. From the pleadings on record, it transpires that the deponent Smt. Sushma Shukla who is the grandmother of the petitioner Vaibhav Shukla had two sons – Gaurav Shukla and Gagan Shukla. Ganga Shukla was married to Nisha Shukla, respondent No.3. The petitioner was born from the wedlock on 19.9.2014. It has been pleaded that late Gagan Shukla had earlier married with Shweta Shukla in the year 2002 and a daughter Nitya Shukla was born in the year 2005. As Gagan Shukla did not have good terms with the deponent, he along with opposite party No.3 was residing separately with the deponent.

Gagan Shukla succumbed to the injuries caused in a road accident on 20.7.2018. For sometime, respondent No.3 lived with the petitioner in the house where Smt. Sushma Shukla was residing, however, it appears that due to strained relationship, the respondent No.3 shifted to another residence owned by the deponent. The child was got admitted by the deponent in a school “Kidzee”, Amrishpuri Colony, Raebareli where he has been studying.

It has further been stated that due to the harassment meted out at the hands of respondent No.3, the husband of the deponent filed a writ petition No.4825(M/B) of 2015 titled “Brijesh Shukla versus The State of U.P. and others” before this Court with the prayer for issuance of a writ of mandamus directing the respondent State to provide security to him. The writ petition was finally disposed of vide order dated 2.12.2015 passed by this Court.

It has also been pleaded in the petition that one Raj Kumar Singh alias Munna had illicit relations with respondent No.3. The said Raj Kumar Singh is a life convict in Sessions Trial No.294 of 1995 under Section 326 I.P.C. Raj Kumar Singh has been enlarged on bail in a criminal appeal filed before this Court.

Supplementing the pleadings, it has been stated that due to the strained relations and the atrocities being made by the opposite party No.3, the deponent and her husband severed all the ties with Gagan Shukla (deceased). Mother of the petitioner has opened a Beauty Parlour at ground floor of the residence owned by the deponent at M-3, Amrishpuri Colony, Kanpur Road, Raebareli. The opposite party No.3 and her parents have ill motive to usurp the property of the deponent and by one way or the other has been harassing the deponent and her husband.

The deponent and her husband had already invested considerable money in favour of the petitioner. The future of the petitioner is not safe with mother.

(4) A counter affidavit has been filed by Smt. Nisha Shukla, opposite party No.3. It has been stated that the child has been residing with her and is leading a good and healthy life. The child has never met his grandparents. Relationship with Raj Kumar Singh has also been denied by the deponent of the counter affidavit. Lastly, it has been prayed that the petition be dismissed.

(5) Rejoinder affidavit filed by the petitioner almost reiterates the averments made in the writ petition.

(6) Submission of learned counsel for the petitioner is that Master Vaibhav Shukla has been detained by the mother Smt. Nisha Shukla W/o Late Gagan Shukla (respondent No.3), who was having no good relations with her husband, therefore, the custody of the minor child Master Vaibhav Shukla be handed over to the grand mother Smt. Sushma Shukla. He further submits that in the habeas corpus petition, the welfare of the minor child is the relevant factor to be considered by considering the custody of the child. The grand mother is not an outsider, therefore, for the welfare of the child, the custody should be handed over to the grand mother.

(7) In support of his submission, learned counsel for the petitioner placed reliance upon certain judgments of the Hon’ble Supreme Court, which are as under :-

(i) Dr. Mrs. Veena Kapoor Vs. Varinder Kumar Kapoor; AIR 1982 SUPREME COURT 792

(ii) Nithya Anand Raghavan Vs. State (NCT of Delhi) Another; (2017) 8 SCC 454

(iii) Tejaswini Gaud Others Vs. Shekhar Jagdish Prasad Tewari Others; (2019) 7 SCC 42

(8) On the other hand, learned A.G.A. and learned counsel for respondent No.3 submitted that the respondent No.3 is the biological mother and the custody of the child is in right hands, therefore, the welfare of the child is in the hands of respondent No.3. They further submitted that the grand mother is aged about 72 years and is not able to look after the affairs of the minor child Master Vaibhav Shukla in correct prospective. It is the submission that the judgments relied upon by learned counsel for the petitioner are distinguishable on the facts and circumstances of the present case.

(9) After having heard the rival contention of learned counsel for the parties, I perused the material on record as well as the judgments relied upon by learned counsel for the petitioner.

(10) On perusal of the material on record, it is transpired that Smt. Sushma Shukla, who is the grand mother of Master Vaibhav Shukla has two sons namely, Gaurav Shukla and Gagan Shukla. Ganga Shukla was married to Nisha Shukla, respondent No.3. The petitioner was born from the wedlock on 19.9.2014. Gagan Shukla, due to road accident, died on 20.7.2018. The minor child Vaibhav Shukla is now residing along with the biological mother (respondent No.3). Master Vaibhav Shukla is pursuing his studies in a school “Kidzee”, Amrishpuri Colony, Raebareli.

(11) Certain allegations have also been levelled against the respondent No.3 in regard to the illicit relationship with one Raj Kumar Singh, who is life convict and on bail in the appeal filed before this Court.

(12) The respondent No.3 has opened a beauty parlour and with the income, is managing the day to day affairs of her life including providing better education to Master Vaibhav Shukla.

(13) It appears that there are some investments in the name of Master Vaibhav Shukla, which causes dispute in filing the present petition before this Court.

(14) On perusal of the material on record, it is reflected that child has been residing with the respondent No.3 and leading a good and healthy life and the relationship with Raj Kumar Singh has also been denied by the respondent No.3.

(15) In regard to the judgment relied upon by learned counsel for the petitioner in the case of Dr. Mrs. Veena Kapoor (Supra), the relevant is paragraph 2, which is being quoted below :-

“2. It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. The High Court, without adverting to this aspect of the matter, has dismissed the petition on the narrow ground that the custody of child with the respondent cannot be said to be illegal.”

(16) On its perusal, it is reflected that the Hon’ble Supreme Court while dealing with the matter, has held that it is well settled that in matters concerning the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. Here in the present case, the biological mother (respondent No.3) is running a beauty parlour and is younger than the grand mother and the child is pursuing studies under the guradianship of respondent No.3 by the income of beauty parlour, which is run and managed by the biological mother.

In view of the above, custody of the minor child is safe in the custody of respondent No.3 and not in the hands of the grand mother.

(17) In regard to the another judgment relied upon by learned counsel for the petitioner in the case of Nithya Anand Raghavan (Supra), the relevant is paragraph 47, which is being quoted below :-

“In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.”

(18) On perusal of the above referred judgment, it is reflected that in the habeas corpus petition, the custody of the minor child is to be taken care of and only in exceptional situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband. It has further been held that in exercise of writ jurisdiction, instead the other parent can be asked to resort to a substantive remedy for getting the custody of the child.

(19) Here it is undisputed fact that the child is in the custody of the biological mother (respondent No.3) and the minor child is pursuing his studies in an institution of District Raebareli and in case, the custody of the child is claimed in the present petition from the biological mother, the welfare of the child will be highly affected.

(20) In the opinion of the Court, the respondent No.3 by running a beauty parlour is managing her affairs as well as expenditure of studies of her minor child, therefore, the welfare of the child is in the hands of respondent No.3 and not in the hands of the grand mother, who is aged about 72 years, therefore, the judgment relied upon by the learned counsel for the petitioner does not help in any manner.

(21) The last judgment, which has been relied is in the case of Tejaswini Gaud Others (Supra), the relevant are paragraphs 19, 20, 26 and 27, which are being quoted below :-

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and SectionGuardianship Act or the Guardians and SectionWards Act as the case may be. In cases arising out of the proceedings under the Guardians and SectionWards 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 SectionWards 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 exceptional 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.

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, 8 SectionLahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97 education, intellectual development and favourable surroundings, in Nil Ratan Kundu9, it was held as under:-

“49. SectionIn Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 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 SectionM.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 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. SectionIn Kamla Devi v. State of H.P. AIR 1987 HP 34 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.” 9 SectionNil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413

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. 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.”

(22) On its perusal, it is well established that in a habeas corpus petition, for custody of the minor child, the considerable point was that whether detention by parents or others is illegal or without authority of law, wherein detention of a minor by a person, who is not entitled to his legal custody was held to be illegal detention and was in regard to the claim setup by a father of a girl child against sister of the mother, who had died due to illness. The above referred judgment is distinguishable and does not attract to the present facts and circumstances of the case.

(23) Here in the present case, the grand mother who is aged about 72 years is claiming custody of the minor child from the biological mother, who is managing affairs by running a beauty parlour to provide comfort, health, education and other developments of the child required for future developments.

(24) In the opinion of the Court, the custody of the child is in right hands and does not require any interference in the present habeas corpus petition.

(25) In view of the observation made above, there is no merit in the present habeas corpus petition and the same is hereby dismissed.

(26) However, it is provided that in case the grand mother of the minor child Master Vaibhav Shukla wants to meet her grand son, the respondent No.3 shall permit and provide adequate atmosphere to meet her grand son on 3rd Sunday of every month and will not create any hindrance in the meeting.

Order Date :- 18.12.2019

Gautam

[Irshad Ali]

 

 

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