2020 Supreme(All) 901

IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Smt. Meenakshi And Another - Appellant
Versus
State Of U.P. And 8 Others – Respondents
Habeas Corpus Writ Petition No.861 of 2019
Decided on : 02-12-2020

Point of law: HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.”

Headnote:

Guardians and Wards Act, 1890 – Code of Criminal Procedure, 1973 – Section 156 – Custody – Smt. Meenakshi, the first petitioner and Ram Narayan, the ninth respondent married according to Hindu rites on 20.04.2014. – The couple lived together as man and wife for a period of about four years. Meenakshi says that she had a tumultuous marriage. – In her husband’s home, she stayed along with her in-laws. – During her stay with her husband, she was tortured, both physically and mentally, in connection with dowry that was demanded. Meenakshi had lost her father some fifteen years ago. – It was her mother, who had settled this marriage for her. – Her mother had given in dowry all necessaries for a household apart from Rs.5 lakhs in cash, besides ornaments. – During her stay at her husband’s, Meenakshi came to know, as she alleges, that her husband had an amorous relationship with his sister-in-law (bhabhi) and another girl from the village, to which she objected in vain. – She claims that this further accentuated her torture by her husband and in-laws, forcing her to abandon her marriage and go back to her mother’s home. – She went back to her mother on 04.06.2018. – A son, named Anav, was born of this rather short lived wedlock of parties. – He was born on 20.09.2016. For the present, Anav is aged about 4 hours. – It is also claimed by Meenakshi that after her initial exit from the matrimonial home on 04.06.2018, she attempted reproachment a number of times. – She went back to her husband’s home, but on each occasion found herself unwelcome. – There was a concerted effort to jettison the from her matrimonial home by her husband and the in-laws. – The discord between parties was mediated by kinsmen, which resulted in what Meenakshi claims to be a mutual divorce. – It is a private settlement, engrossed on a stamp paper, worth Rs.100/-and notarized. – It is a document, executed at Panipat, Haryana. – Apart from parties, it is attested by witnesses, who appear to be the mediators or panchas of some kind. – It is claimed by Meenakshi that she went back to her mother’s home along with her young son, Anav. After lapse of sometime, matters took an unpleasant turn for Meenakshi and her young son, Anav. It is claimed that there was an unholy alliance between Meenakshi’s brother, Sunny and her estranged husband, Ram Narayan with the two making it common cause to oust her minor son from her mother’s home. – This came about between Sunny and Ram Narayan for very different reasons of their own. – While Ram Narayan wanted his son to stay with him, Sunny who is arrayed as the sixth respondent to this petition, wanted the child out of his mother’s home, where Meenakshi stays, because he thought Meenakshi may claim a share for her son in her ancestral property. It is claimed that Ram Narayan, in connivance with Meenakshi’s brother, Sunny, besides Vinod and Robin, both natives of Village Toli, threatened Meenakshi that they would not permit her son to live with her. – It is asserted that Sunny, Vinod and Robin, respondent nos. 6, 7 and 8, in that order, beat up Meenakshi and her mother, telling her that she would not be given a penny of the inheritance. In furtherance of this common interest between Ram Narayan and Sunny, in the evening of 06.04.2019, respondent nos. 6, 7 and 8, beat up Meenakshi. It is also claimed that they opened fire, but Meenakshi’s mother came to her rescue. – Respondent nos. 6, 7 and 8 beat up Meenakshi’s mother also and snatched away her son, locking up Meenakshi and her mother inside a room. – Respondent nos.6 to 8, in this manner, kidnapped the minor, Anav and handed him over to Meenakshi’s husband, Ram Narayan.

Finding of the court:

Ram Narayan, the father has not come up with any such case, where the mother may be judged unsuitable to raise the minor. – There is nothing on record to show that her case falls into that kind of an exceptional category, where she may be deprived of the minor's care and custody. – To the contrary, this Court finds that the mother is an educated woman and a Post Graduate in Education. She is far better educated than the father. – Welfare of the young child is not dependent on material resources alone. – It requires a lot more. – Literal and then intellectual guidance, besides moral training are important facets of a child's grooming. – Court finds that all these would be better secured with the mother than the father. – So far as the financial support is concerned, that in any case, would be the father's responsibility and the law would take care of it. – It must be assumed that the parties have settled their monetary issues in terms of the settlement agreement – Mother has indicated that she has the necessary wherewithal to raise the minor. – Mother, being found fit to have the minor's custody, it cannot be the best arrangement to secure the child's welfare, or so to speak, repair his devastated world. – He must have his father’s company too, as much as can be, under the circumstances. – Court must, therefore, devise a suitable arrangement, where the minor can meet his father in an atmosphere, that is reassuring and palliative. – Father must, therefore, have sufficient visitation while the minor stays with his mother.

Result: – Habeas Corpus Writ Petition Allowed