1993 Supreme(All) 272

IN THE HIGH COURT OF ALLAHABAD
K. C. BHARGAVA
MASTER ZUBEEN - Appellant
Versus
PRINCIPAL JUDGE, FAMILY COURT, LUCKNOW - Respondents
W. P. 62 Of 1993
Decided On : 05/07/1993

The welfare of the child is the paramount consideration in determining the custody of a minor child.

Headnote:

CUSTODY OF MINOR - GUARDIANS AND WARDS ACT, 1890 - SECTION 25 - CUSTODY OF MINOR - WELFARE OF THE CHILD IS THE PARAMOUNT CONSIDERATION - CUSTODY OF THE CHILD REFUSED TO THE MOTHER WHEN THE CHILD WAS NEGLECTED OR DESERTED BY THE MOTHER FOR A LONG TIME AND THE CHILD WAS BROUGHT UP BY MATERNAL GRANDFATHER OR MATERNAL GRANDMOTHER.

Fact of the Case:

The petitioner, Firdous Jahan, filed a habeas corpus petition under Art. 226 of the Constitution of India, praying that the opposite parties be directed to produce the petitioner, Master Zubeen and to set him at liberty. The facts revealed from the petition are that on 16-4-1980, Firdous Jahan was married to opposite party No. 2, Abdul Wali alias Kalim Khan at Lucknow. After the marriage both of them lived at the house of opposite party No. 2 at Malihabad. On 1-5-1983 when Master Zubeen was about one months old only the opposite party No. 2, Abdul Wali alias Kalim Khan turned out the mother of the minor. Firdous Jahan, from his house. The mother of the minor, Firdous Jahan, with the child, came to Kanpur and started residing with her mother at 145, Chandra Nagar, Police station Chakeri, Kanpur. The minor was studying in school at Kanpur and the examination of the minor, Master Zubeen took place in April, 1983. The opposite party No. 2 Abdul Wali alias Kalim Khan came to Kanpur in 1985 and stayed with his wife, Firdous Jahan, for about 6 months but no maintenance was paid by the opposite party No. 2. Thereupon. Firdous Jahan filed an application under Section 125. Cr. P. C. for maintenance for herself, minor Master Zubeen and his younger brother which was allowed on 10-2-1987 by the Principal Judge, family court, Kanpur. By that order a sum of Rs. 150. 00 per month was awarded as maintenance. The opposite party No. 2 merely paid Rs. 16,00. 00. Thereafter the opposite party No. 2 filed a case under S. 25 of the Guardians and Wards Act in the court of Principal Judge, family court, Lucknow for the custody of the minor, master Zubeen. This case was finally decided on the basis of the compromise between the parties in the Lok Adalat on 7-7-1991. In terms of that compromise the entire family was to live at Lucknow and opposite party No. 2 Abdul Wali alias Kalim Khan was directed to maintain the family as a guardian. The Lok Adalat did not pass any order for the custody of Master Zubeen to opposite party No. 2, Abdul Wali alias Kalim Khan. The opposite party No. 2 did not comply with the order of the Lok Adalat and he did not come to reside at Lucknow. Thereafter an application for execution of the order dated 7-7-1991 was moved before the Principal Judge, family court, Lucknow. On 1-2-1993 when Master Zubeen was going for his studies, opposite party No. 4, the Station officer of Police Station Chakeri, Kanpur forcibly took away the child to Police Station, Chakeri where the minor failed to identify the opposite party No. 2, his father. Thereafter on 22-2-1993 at about 11 a. m. when the minor Master Zubeen was studying in the class, the opposite party No. 4, the Station officer of Police Station Chakeri again came and took the minor to the Police Station. It was told that an order has been passed in the execution case for the custody of the minor. Thereafter the custody of the minor, Master Zubeen was handed over to the opposite party No. 2 before the family court, at Lucknow. The order passed by the opposite party No. 1, Principal Judge, family court, Lucknow, is wholly illegal and without jurisdiction and the custody of the minor with opposite party No. 2 is illegal and wrongful. The life of the minor in the hands of the opposite party No. 2 is in danger and his studies will be affected.

Finding of the Court:

The court held that the custody of the minor child with opposite party No. 2 is not illegal and the habeas corpus petition is not maintainable. The court also held that on merits the mother cannot be granted the custody of the minor child.

Issues: 1. Whether the custody of the minor child with opposite party No. 2 is illegal? 2. Whether the mother can be granted the custody of the minor child?

Ratio Decidendi: 1. The court held that the custody of the minor child with opposite party No. 2 is not illegal because the custody of the child was delivered to the opposite party No. 2 by the police on the basis of an order which was received by it. The court also held that the remedy of filing a habeas corpus petition in this Court was not to be availed in such cases. 2. The court held that on merits the mother cannot be granted the custody of the minor child because she is not able to maintain herself and the child, and the welfare of the child is not safe in her hands.

Final Decision: The writ petition is dismissed.