2022 Supreme(Pat) 175

IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Rajeev Ranjan Prasad, JJ.
Smt. G.S.S. Sitara W/O Sajjan Raj Shekhar - Petitioner
Versus
The State of Bihar through Home Secretary and ors. – Respondents
Criminal Writ Jurisdiction Case No.783 of 2021
Decided On : 12-04-2022

Headnote:

Constitution of India – Article 226 – Hindu Minority and Guardianship Act, 1956 – Section 6 – Guardians and Wards Act, 1890 – Sections 7, 8 and 25 – Habeas Corpus Petition seeking guardianship of minor female child of petitioner who is said to be in alleged inappropriate custody of husband of petitioner – It is father who is natural guardian of a boy or an unmarried girl and after the father, mother is natural guardian – Custody of a minor who has not completed age of five years shall ordinarily be with mother – Present writ application cannot be held non-maintainable – Rejection of petition on solitary ground that custody of child with respondent-father cannot be said to be illegal would not meet expectation of law and jurisdiction conferred upon this Court. (Paras 29, 31 and 35)

Hindu Minority and Guardianship Act, 1956 – Sections 6 and 13 – Guardians and Wards Act, 1890 – Sections 7, 8 and 25 – Constitution of India – Article 226 – Habeas Corpus Petition seeking guardianship of minor female child – It is not the right of either parent that would require adjudication while deciding their entitlement to custody – Desire of child coupled with availability of a conducive and appropriate environment for proper upbringing together with ability and means of concerned parent to take care of child are some of relevant factors that have to be taken into account by Court while deciding issue of custody of a minor – Section 6(a) of Act of 1956 gives primacy to father and mother has been declared natural guardian only after father – Both father and mother are equal guardian of a boy or an unmarried girl and they stand on same pedestal – Father is one of natural guardians and his having custody of minor child whether a boy or an unmarried girl cannot be termed illegal ipso facto – It is welfare of minor which will be of paramount consideration – Petitioner has not disclosed regarding her source of independent income – Petitioner has filed a maintenance case seeking maintenance of herself and her two kids from respondent – She has no permanent place of residence in State of Bihar and presently she is living in government quarter at Muzaffarpur which is a temporary kind of arrangement – It is respondent who is much better placed than petitioner to take care of her all round developments including her health issues, education and he alone can provide a conducive environment to minor girl at this stage – He being father his love and affection towards his own daughter cannot be doubted – He is providing all amenities and facilities to her which are commensurate to his status – Welfare of female child also lies in granting visitation right to petitioner to ensure that she gets love and affection of her mother – Petitioner will have a visitation right and shall have access to child at residence of respondent during all week day's when school is open between 4.00 pm to 6.00 pm. (Paras 39, 43, 44, 45, 51 to 55)

Per Ashwani Kumar Singh, J. (Assenting View)

Constitution of India – Article 226 – Hindu Minority and Guardianship Act, 1956 – Section 6 – Guardians and Wards Act, 1890 – Sections 7, 8 and 25 – Habeas Corpus Petition seeking guardianship of minor female child of petitioner who is said to be in alleged inappropriate custody of husband of petitioner – Habeas corpus proceedings is a medium through which custody of child is addressed to discretion of Court – In child custody matters, writ of habeas corpus is maintainable where it is proved that detention of a minor child by a parent or others was illegal or without any authority of law – In a writ petition for changing custody of a child from one spouse to another, only issue for consideration is consideration regarding welfare of child – If it is in welfare of child to entertain such an application, no technical objections can come in way and Courts have ample power to entertain such writ applications for changing custody of minor from one spouse to another – It is a summary proceeding and in many cases, orders passed by Courts have been held to be subject to order which may be passed in appropriate proceedings under Guardians and Wards Act, 1890 – Rights of parents have to give way to paramount consideration of welfare of child. (Paras 12, 13 and 15)