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IN THE HIGH COURT OF JUDICATURE AT PATNA
AHSANUDDIN AMANULLAH and PURNENDU SINGH, JJ.
Cr. WJC No.189 of 2022
(1.7.2022)
Jyoti Kaur ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Constitution of India – Article 226 – Habeas Corpus Petition – For custody of child who is in custody of his father – This writ petition for habeas corpus is maintainable in law – While parties are now divorced, issues are being raised with regard to girl child remaining with petitioner and boy remaining with respondent-father – Such arrangement is in terms of arrangement finalised order of Court below – Girl child is at a tender age and henceforth, petitioner and respondent will co-parent her fostering in a spirit of cooperation and respect – Petitioner directed to permit respondent to interact with daughter and petitioner with son, every day – Petitioner volunteers that she would take all measures to ensure that girl is fully prepared for mid-term school examination – Liberty granted to parties to approach Court, if any urgent modification of terms agreed is warranted, which shall otherwise operate till Competent Court renders a decision – Criminal Writ Petition disposed of with directions and observations. (Paras 5, 11, 14, 15, 18, 20 and 21)
Cases Referred:
Cox vs. Hakes, (1890) 15 AC 506; Nil Ratan Kundu vs. Abhijit Kundu, (2008) 9 SCC 413; Gohar Begum vs. Suggi, AIR 1960 SC 93; Kanu Sanyal vs. District Magistrate, Darjeeling, (1973) 2 SCC 674; Syed Saleemuddin vs. Dr. Rukhsana, (2001) 5 SCC 247; Nithya Anand Raghavan vs. State (NCT of Delhi), (2017) 8 SCC 454; Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42; Yashita Sahu vs. State of Rajasthan, (2020) 3 SCC 67; Amyra Dwivedi vs. Abhinav Dwivedi, (2021) 4 SCC 698 – Relied.
G.S.S. Sitara vs. State of Bihar, (2022) 3 BLJ 274 – Distinguished.
Per Purnendu Singh), J. (Assenting View)
Hindu Minority and Guardianship Act,1956 – Sections 6 and 13 – Guardians and Wards Act, 1890 – Section 17 – Constitution of India – Article 226 – Habeas Corpus Petition – For custody of child who is in custody of his father – Role of High Court in such cases in examining cases of custody of a minor is on touchstone of principle of parens patriae jurisdiction, as minor is within jurisdiction of Court – Petitioner has raised issue of custody of her female child aged about 7 years to be handed over to her, who is said to be in illegal custody of respondent in violation of terms of divorce by mutual consent – Question of custody of child is being claimed for violation of terms of agreement of mutual divorce – She has not made any allegation that if child continues to remain in custody of father same will afflict her mental, moral, educational and general welfare – Court has to give due weightage to child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, moral and ethical values have also to be noted – They are equal if not more important than others – In terms of Section 6 of Hindu Minority and Guardianship Act,1956, after child attains age of 5 years, father becomes natural guardian of child as well as minor property and do not include step-father and step-mother – Best interest of child is to have parental care of both parents, but in present case, parents are separated with each other innocent child is being dragged into midst of custody battles – Child has to bear brunt of parental disharmony affecting overall development of child – It seems to be not possible to provide complete peaceful environment to child – In such cases, role of Court becomes parens patriae and it has to decide what is best interest for welfare of child after judging pros and cons of both respective parents who claims custody of child. (Paras 22, 28, 37, 42 and 46)
Ahsanuddin Amanullah, J.—Heard Mr. Uday Shankar Choudhary, learned counsel for the petitioner; Mr. Ajay, learned counsel for respondent no.8, and; Mr. Prabhu Narayan Sharma, learned Assistant Counsel to the learned Advocate General, for the official respondents/State.
2. The petitioner has moved the Court for the following reliefs:—
“(i) For the issuance of an appropriate writ/order/direction including a writ in the nature of Habeas Corpus to the Respondent Police authorities for recovery of Victim girl namely Bani Saluja who is in illegal confinement/ custody of Respondent No.-8 namely, Ravi Saluja (Father) since 11.01.2022 till date, and be handed over to the Petitioner.
(ii) For issuance of an appropriate writ/order/direction including a writ in the nature of mandamus commanding the Respondent authorities to especially Respondent No. 3, 5, 6, 7 and the Respondent authorities to recover the female child Bani Saluja who is in illegal confinement of Respondent No.- 8 (father of the victim) against wishes of the Petitioner, violating the mutual agreement between the Petitioner and the Respondent No. 8 filed in their mutual Divorce Petition and also Judgement passed by the Principal Judge, Family Court, Patna.
(iii) For issuance of a direction to the Respondent authorities to lodge an FIR for illegal confinement of the minor daughter of the Petitioner by the Respondent No. 8, till date neither FIR has been lodged nor recovery has been made.
(iv) For issuance of an appropriate writ/order/direction including a writ in the nature of mandamus commanding the Respondent authorities to take appropriate steps to fix the responsibility on the Respondents and for not performing the legal duties, further punishment may be levelled upon them. And to hold the departmental proceedings against the Respondent No. 5, 6 and 7 who are responsible for the recovery of the Victim baby child namely Bani Saluja.
(v) For the grant of such other relief(s) as the petitioner would be found entitled to, on the facts and in the circumstances of the case.”
3. Having due regard to the nature of the lis, the Court deemed it appropriate to interact with the daughter/girl child [Ms. Bani Saluja] in Chambers, stated to have been taken away by the respondent no.8 in violation of the order dated 23.11.2020 of the learned Principal Judge, Family Court, Patna in Matrimonial Case No.107/2020. On 30.06.2022, after spending almost two hours in Court as also a few hours with Ms. Anamika T., learned Registrar (Establishment) of this Court, the girl, her brother [Master Amrit Saluja] and the mother of respondent no.8 [Mrs. Jaswant Kaur] as also the mother-in-law of the petitioner [Mrs. Anita Srivastav] went to the Circuit House, Patna where they spent the night of 30.06.2022, and today/01.07.2022 at 2:15 PM, they have appeared before the Court. The petitioner, the respondent no.8 and the husband of the petitioner [Mr. Rohan Kumar] are also present in person. Today, the Court requested the learned Registrar (Establishment) to interact with the girl child, and such interaction took place over almost two hours. In our interactions, yesterday and today, in extenso, with the girl child, the Court finds, apropos her demeanour, that she is much more relaxed today, compared to yesterday. Amidst this backdrop, the learned Registrar (Establishment) has further interacted with her, on our directions.
4. A brief reference to the facts is useful. The petitioner and respondent no.8 solemnised their marriage on 10.11.2008. They were blessed with a boy [Master Amrit Saluja on 19.05.2011] and a girl [Ms. Bani Saluja on 19.05.2015]. For reasons with which we are not presently concerned, they preferred a petition to obtain a decree of divorce with mutual consent under Section 13B of the Hindu Marriage Act, 1955 on 24.01.2020 before the learned Principal Judge, Family Court, Patna [viz. Matrimonial Case No.107/2020]. Judgement therein was delivered on 23.11.2020, leading to the petitioner and responde
The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
The welfare of the child is the paramount consideration in determining the custody, and the child's preference and the bond with the parents are essential for the child's overall development.
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