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2020 Supreme(All) 858
IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Anmol Shivhare (Minor) – Appellant
Versus
State Of U.P. And Others - Respondents
Habeas Corpus Writ Petition No.61 of 2020
Decided on : 09-12-2020
Advocate Appeared:
For the Appellant : R.K. Mishra
Point of Law: law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.
Headnote:
Hindu Guardianship and Maintenance Act, 1956 – Section 6 – Code of Criminal Procedure, 1973 – Sections 161, 164 – Penal Code, 1860 – Section 346 – Habeas Corpus – This is a habeas corpus writ petition effectively brought by Ram Kumar Gupta in the name of his son Anmol Shivhare, complaining that his minor son aforesaid is in the unlawful custody of Smt. Sanyogita @ Gunja, the minor’s mother – He prays that the minor be ordered to be produced before this Court and emancipated in the manner that his custody be entrusted to Ram Kumar Gupta, relieving the minor from the mother’s custody. – Petition was admitted to hearing on 04.11.2020 and a rule nisi was issued, ordering the minor to be produced before this Court on 17.11.2020. – The minor was produced before this Court as ordered. – On the date of return, the minor’s father, Ram Kumar Gupta and the minor’s mother, Smt. Sanyogita @ Gunja also appeared in compliance with the Court’s direction to that effect, carried in the order – The Court has interacted with the minor Anmol Shivhare, his mother Sanyogita @ Gunja and the minor’s father, Ram Kumar Gupta. –
Finding of the Court:
In the opinion of this Court, Balram Chaudhary, Sanyogita and the two children, who are half brothers, are a family with reasonably good bonds, that can be trusted to secure the minor’s welfare. – On the other hand, Gupta is engaged in earning his livelihood and back home there may not be anyone, even half as able to take care of the minor at this young age as his natural mother. Sanyogita has also indicated that she is all inclined to raise the minor and ensure good education to him. – By contrast, Gupta’s reaction to the proposal of raising a young child was rather reluctant. – He also said that for the present he has not considered a second marriage. – If he does in future, of course, subject to a divorce, the minor might have a step mother. – That might be more detrimental to the minor’s welfare than a stepfather, who goes away to work. – It is a prospect which has not yet come by. Nonetheless, it is a prospect that has to be borne in mind. – Thus, so far as the dominant and substantial part of the minor’s custody and care are concerned, this Court is of opinion that these would be better secured in the mother’s hands, in comparison to the father. – At the same time, the minor cannot be deprived of the company of his father. – Court is, therefore, of opinion that Sanyogita @ Gunja would be obliged to take the minor to his father’s home at Kanpur once in two months, on any Sunday of the month. – The child will stay with his father from 10:00 am to 5:00 pm. – During this time, Sanyogita would have to stay close by, if she is not comfortable staying at Gupta’s home. – During this interaction, the father shall extend all courtesy to Sanyogita, and Sanyogita, likewise, will facilitate the meeting between the minor and his father. – In case, during the period of stay, the minor needs his mother, Gupta will be free to inform her over cellphone and the mother shall take care of the minor’s requirements. – Reasonable expenses for the onward and return journey by Sanyogita and the minor shall be borne by Gupta, payable at the time of each scheduled visit. –
Result: Petition Disposed of
JUDGMENT :
1. This is a habeas corpus writ petition effectively brought by Ram Kumar Gupta in the name of his son Anmol Shivhare, complaining that his minor son aforesaid is in the unlawful custody of Smt. Sanyogita @ Gunja, the minor’s mother. He prays that the minor be ordered to be produced before this Court and emancipated in the manner that his custody be entrusted to Ram Kumar Gupta, relieving the minor from the mother’s custody.
2. This petition was admitted to hearing on 04.11.2020 and a rule nisi was issued, ordering the minor to be produced before this Court on 17.11.2020. The minor was produced before this Court as ordered. On the date of return, the minor’s father, Ram Kumar Gupta and the minor’s mother, Smt. Sanyogita @ Gunja also appeared in compliance with the Court’s direction to that effect, carried in the order dated 04.11.2020. The Court has interacted with the minor Anmol Shivhare, his mother Sanyogita @ Gunja and the minor’s father, Ram Kumar Gupta.
3. Heard Sri R.K. Mishra, learned counsel for the petitioner and Smt. Sanyogita who appeared in person.
4. Smt. Sanyogita, on being specifically asked, if she has instructed a counsel to represent her, declined and addressed the Court herself.
5. In answer to the rule nisi, no return in the form of a counter affidavit has been filed by or on behalf of Sanyogita @ Gunja, respondent no. 5. Thus, the facts before the Court are those that figure in the writ petition and the others the Court has gathered from the parties while interacting with them during hearing.
6. The facts are that Ram Kumar Gupta and Sanyogita were married according to Hindu rites on 8th December, 2009 at Kanpur Nagar. After marriage, Sanyogita came over to her matrimonial home and the two parties cohabited as man and wife. In time, a son was born to the parties. He was born on 07.08.2015. His name is Anmol Shivhare. Ram Kumar Gupta left his native place for Gurgaon, Haryana in search of better prospects to earn his livelihood. He landed in a private job there. He set up residence at Mohammadpur, Sector 37, Gurugram (earlier called Gurgaon), Haryana. Once established there, Gupta invited his wife along with his young son to stay there. The family moved together and settled at Gurugram. The minor, Anmol was admitted to a certain Divya Niketan Public School, Mohammadpur Jharsa, Gurugram, Haryana. He was enrolled in Class-1. The family were living a peaceful life or so it was thought by Gupta.
7. It is said in the writ petition by Gupta that all of a sudden, on 03.10.2019, Sanyogita went away somewhere taking along the parties’ minor son, Anmol. Gupta lodged a first information report on 04.10.2019 at Police Station Sector 37, Gurugram. It was registered as Case Crime No. 295 of 2019, under Section 346 I.P.C. The Police investigated the matter. They found that Sanyogita along with the minor son of parties was staying with one Balram s/o Memwar Singh, a resident of Lahrauli Gate, Police Station Baldeo, District Mathura. The police from Gurugram came over to Police Station Baldeo, District Mathura and Sanyogita was called over. Her statement was recorded under Section 161 Cr.P.C. She was, thereafter, produced before the Magistrate so that her statement under Section 164 Cr.P.C. could be recorded. She said in both her statements that she had married Balram and also produced a marriage certificate dated 22.05.2018 from the Arya Samaj, Block Khera, Firozabad. A copy of that certificate is available on the record of this petition. The police on the basis of Sanyogita’s statements under Section 161 and 164 Cr.P.C. submitted a final report to the Magistrate concerned, proposing closure of the investigation. Gupta, however, says that Sanyogita’s marriage to Balram is a nullity because it is a second marriage in the lifetime of her husband. Apparently, she has not secured any kind of dissolution of her marriage with Gupta. She has not secured a decree of divorce or annulment. Gupta says further that upon coming to
