Back
2019 Supreme(All) 2671
IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR SINGH, J.
Aarav (Minor) and Another – Petitioners
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 917 of 2019
Decided On : 28-11-2019
Advocate Appeared:
For the Petitioners: Satyendra Narayan Singh, Ashutosh Pandey.
For the Respondent: Ishwar Chandra Tyagi.
Point of law: Children are not mere chattels: nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds which we are unable to appreciate
Headnote:
Hindu Minority and Guardianship Act, 1956 – Sections 6, 13 – Habeas Corpus –Custody of child - 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
Facts of the case:
Habeas corpus writ petition has been filed on behalf of corpus namely Arnav by petitioner no. 2/father, with prayer to issue a writ, order or direction in the nature of habeas corpus directing the respondent nos. 2 to 4 to produce the corpus/petitioner no. 1 before this Hon'ble Court and handover him to the petitioner no. 2 – To issue a writ, order or direction in the nature of habeas corpus directing the respondent nos. 2 to 4 to produce the petitioner no. 1 i.e. corpus before this Hon'ble Court and release the petitioner no. 1/corpus from the illegal detention of respondent nos. 2 to 4 and hand over the petitioner no. 1 to the petitioner no. 2 i.e. father Dr. Abhijat Kumar – To issue a writ, order or direction in the nature of mandamus protecting the interest of the petitioner, which this Hon'ble Court deem fit and proper under the facts and circumstances of the case –
Finding of the court:
Word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. – The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. – 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. –
Result: Habeas Corpus Writ Petition Dismissed
ORDER :
1. Heard Sri. Satyendra Narayn Singh and Sri. Ashutosh Pandey, learned counsel for the petitioners and Sri. Ishwar Chandra Tyagi, learned counsel for the opposite party no. 2 and Sri. Azad Singh and Sri. Abhinav Prasad, learned A.G.A. for the State-respondent.
2. This Habeas corpus writ petition has been filed on behalf of corpus namely Arnav by petitioner no. 2/father, with the following prayer:-
“(i) Issue a writ, order or direction in the nature of habeas corpus directing the respondent nos. 2 to 4 to produce the corpus/petitioner no. 1 before this Hon'ble Court and handover him to the petitioner no. 2.
(ii) Issue a writ, order or direction in the nature of habeas corpus directing the respondent nos. 2 to 4 to produce the petitioner no. 1 i.e. corpus before this Hon'ble Court and release the petitioner no. 1/corpus from the illegal detention of respondent nos. 2 to 4 and hand over the petitioner no. 1 to the petitioner no. 2 i.e. father Dr. Abhijat Kumar.
(iii) Issue a writ, order or direction in the nature of mandamus protecting the interest of the petitioner, which this Hon'ble Court deem fit and proper under the facts and circumstances of the case.”
3. The facts of the case in capsulated form are that the petitioner no. 2 who is the father of petitioner no. 1 having qualification of M.B.B.S. (M.S.) Surgery working as consultant surgeon at Navyug Medical Centre Pvt. Ltd. which is his own hospital and is also working as Senior Resident at Basti Medical College, Basti. The marriage of the petitioner no. 2 namely Dr. Abhijat Kumar was solemnized with the respondent no. 2 namely Dr. Sweta on 31.1.2009, which was registered before the Registrar, Hindu Marriage District Basti on 19.10.2016 and out of the said wedlock a male child i.e. corpus was born on 7.7.2012. The respondent no. 2 was working as Doctor in Navyug Medical Centre and she was also one of the Director in the aforesaid medical centre alongwith petitioner no. 2 and his parents Dr. Naveen Kumar and Dr. Shashi Srivastava. The petitioner no. 1 is getting his education in Class-II, Section A at St. Basil's School.
4. The respondent no. 2 had moved an application to C.M.S., V.R.T.K. mentioning therein that due to some personal reasons she cannot attend the hospital therefore, the leave may be granted w.e.f. 19.8.2019 to 31.8.2019. The respondent no. 2 also sent a letter of resignation from service at C.M.S., V.R.T.K. District Women Hospital, Basti, mentioning therein that she is unable to work at Basti, reference is made to annexure-5 and 6 to the affidavit accompanying this habeas corpus writ petition.
5. Pursuant to orders dated 14.10.2019 and 14.11.2019 the corpus namely Arnav (Minor) has been produced by her mother i.e. respondent no. 2, both have been identified by their counsel Sri. Ishwar Chandra Tyagi, representing respondent no. 2.
6. On being asked the corpus informed that his name is Aarav:
(i) On being asked, with whom he is living right now, the corpus informed that he is living with his mother.
(ii) On being asked, with whom he wants to live, the corpus informed that he wants to live with his mother.
7. The counsel for the respondent contend that the writ of habeas corpus cannot be issued when efficacious alternative remedy is available to the petitioner No. 2 under Hindu Minority and Guardianship Act, 1956. It is also contended that the question of custody of the minor child is to be decided not on consideration of the legal rights of the parties; but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the respondents who are taking care of the child since more than a year, they alone would be entitled to have the custody of the child in preference to petitioner No. 1-father of the child.
8. I have carefully considered the rival contentions and statement of the corpus recorded herein above.
9. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effe
