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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, Manish Pitale, JJ.
Veena Biswanath Mitra - Appellant
Versus
Kamla Ashok Aher - Respondent
Criminal Writ Petition No. 96 of 2021
Decided On : 03-03-2021
Habeas Corpus - Child Custody - Juvenile Justice (Care and Protection of Children) Act, 2015 - Hindu Minority and Guardianship Act, 1956 - [WELFARE OF CHILD] - [Juvenile Justice (Care and Protection of Children) Act, 2015, Hindu Minority and Guardianship Act, 1956] - The court considered the paramount consideration of the welfare of the minor child in determining the custody. It held that the parents, being the natural guardians, had the highest right to the custody of the child. The court emphasized the ethical upbringing, economic well-being, comfort, contentment, health, education, and overall development of the child as the central factors. It found that the child's future lay with the parents and that there was no substance in the allegations against the parents. The court also noted the child's statements and concluded that he appeared to have been tutored to favor the grandmother. It allowed the writ petition and directed the grandmother to hand over custody to the parents, while permitting continued association with the grandmother.
Fact of the Case:
The parents sought a writ of habeas corpus to obtain custody of their minor child, who was at the center of a custody dispute between the parents and the grandmother. The child had been living with the grandmother due to the mother's medical treatment in Nasik. The parents wanted the child to return to Pune after the treatment, but the grandmother opposed it.
Finding of the Court:
The court found that the welfare of the child was the paramount consideration and that the parents, as natural guardians, had the highest right to custody. It concluded that the child's future lay with the parents and that there was no substance in the allegations against the parents. The court also noted that the child appeared to have been tutored to favor the grandmother.
Issues: The main issue was the custody of the minor child, with conflicting claims from the parents and the grandmother. The court also considered the maintainability of the writ petition seeking a writ of habeas corpus.
Ratio Decidendi: The court held that the paramount consideration in child custody cases is the welfare of the child, considering factors such as ethical upbringing, economic well-being, comfort, contentment, health, education, and overall development. It emphasized the natural guardians' right to custody and considered the child's statements while exercising its parens patriae jurisdiction.
Final Decision: The court allowed the writ petition, directed the grandmother to hand over custody to the parents, and permitted continued association with the grandmother. It also granted visitation rights to the grandmother for an initial period of three months, with the freedom to make further arrangements thereafter.
JUDGMENT
Manish Pitale, J. - Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsel for the rival parties.
2. The parents of a minor child-Anurag have approached this court seeking a writ of habeas corpus to direct the respondents to produce the said minor son of the petitioners and a further direction to respondent No.1, grandmother of the said child, to hand over his custody to them. The said child is at the center of the controversy where the parents on the one hand and the grandmother on the other are claiming custody of the child.
3. The sequence of events leading to filing of the present writ petition starts from the marriage of petitioner Nos.1 and 2 on 25.02.2008. The said child was born out of the wedlock and now he is 12 years old. He was living with the petitioners i.e. his mother and father at Chakan, Pune and he took education from nursery to 4th standard at the Pius Memorial School in Chakan, Pune. Petitioner No.2 i.e. the father of the child is an Electrical Engineer, working in a Multinational Company - 3M India Ltd., as Manager (Production and Planning).
3. In August, 2019 petitioner No.1 i.e. the mother of the child, suffered from gynecological problem for which she was advised surgery and to take complete rest. In this backdrop, the petitioners decided that while petitioner No.1 would undergo treatment for the said health issue, in order that there should not be any loss of studies of the child, he along with his mother i.e. petitioner No.1 would shift to Nasik where respondent No.1 i.e. the mother of petitioner No.1 resides. Accordingly, petitioner No.1 along with the child shifted to Nasik in a flat in the society in which respondent No.1 resides. The said respondent No.1 resides at Nasik with two unmarried sisters of petitioner No.1. The father of petitioner No.1 and her unmarried brother reside separately at Nasik. The petitioners thought that during the period when petitioner No.1 would undergo medical treatment at a hospital in Nasik, respondent No.1 and sisters of petitioner No.1 could take care of her needs as well as those of the child. Petitioner No.1 and the child shifted to Nasik to reside in the society in which respondent No.1 is having a flat and he was admitted in the 5th standard in St Xavier's High School at Nasik. Petitioner No.2 bought a flat in the same society for the convenience of petitioner No.1 and the child and he used to visit them from Pune on weekends.
4. Petitioner No.1 underwent treatment at Nasik and upon her recovery sometime in March, 2020, the petitioners decided that petitioner No.1 could go back to Pune. But, due to the lockdown induced by the Covid-19 pandemic, petitioner No.1 was compelled to stay at Nasik. The academic year of the child was also continuing and, therefore, the mother and child continued to stay at Nasik. Thereafter, when travel restrictions were gradually relaxed in May, 2020, the petitioners discussed the issue amongst themselves and on 14.05.2020, they took a decision to take admission of their son in a school at Pune for the next academic year. It is alleged that when respondent No.1 became aware about the same, she picked up a quarrel with the petitioners and stated that she would not allow the child to be taken back to Pune. On 15.05.2020, the quarrel escalated further, leading to the petitioners filing a complaint before the police station i.e. respondent No.2 herein. On 16.05.2020, petitioner No.2 returned to Pune. The petitioners took admission of the child in Podar International School for the academic session 2020 - 2021 and paid the fees. They requested respondent No.1 and the sisters of petitioner No.1 to download the necessary applications for facilitating the child to attend online classes in the aforesaid school at Pune, since the classes in the school were being conducted only through online method. But, respondent No.1 did not make any efforts in that direction.
5. On 26.05.2020, petitioner No.1 received a m
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