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2020 Supreme(All) 903
IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Rinku Rukshar - Appellant
Versus
State Of U.P. And 4 Others - Respondents
Habeas Corpus Writ Petition No.495 of 2020
Decided on : 08-10-2020
Advocate Appeared:
For the Appellant : G.K. Srivastava
For the Respondent: Radhey Shyam
Point of law: The entire law about the right of the mother to the custody of her minor children, a son and a daughter, where the parties were an estranged Muslim couple, was considered by the Bombay High Court in Mohammad Shafi vs. Shamin Banoo, AIR 1979 Bom 156. It must be remarked that the facts of the case in Mohammad Shafi show that it was truly a custody dispute between the estranged parents of the two minors, where the application by the mother for custody appears to be one made under Section 25 of the Guardians and Wards Act. She had asked for the custody of her minor son, aged four years and a minor daughter, aged two and a half years, at the time of commencement of action
Headnote:
Guardianship and Wards Act, 1890 – Section 25 – Writ of habeas corpus – Unlawful Custody – Petition for a writ of habeas corpus has been filed by Rinku Rukshar, asking that the detenue, Asif, her minor son, be ordered to be produced before this Court from the unlawful custody of Arshad, the minor's father, and, set at liberty by being given into her custody. – The relief though worded differently in substance seeks what the Court has delineated above.
Finding of the court:
Principles of law clearly work in a way that the conclusion has to go in favour of a better welfare for the minor in the hands of his mother. – Court must observe here that during the interaction with the minor whatever words of choice he expressed for the father were no more than clinging emotions, because he is staying with his father for some time now. – There is nothing expressed in the minor's words that may persuade the Court to decide against the mother, or in the father's favour. – Mother's insistence to hold the custody of the minor is more than a mere wish. – In the entirety of the circumstances of the present case, this Court is satisfied that prima facie the welfare of the minor would be better secured in the mother's hands. – Court makes it clear that the conclusions recorded above are tentative in nature. – If the father still thinks that on a more meticulous analysis of evidence that he can adduce, it may be shown that welfare of the minor is better secured in his hands than the mothers, it would be open to respondent no.4, the minor's father, to institute proceedings under the Guardian and Wards Act, 1890 before the court of competent jurisdiction to establish his right to custody. – If that course is adopted, nothing said here will be read for or against either of the parties and the concerned Court will decide in accordance with law on basis of the evidence adduced.
Result – Writ Petition Allowed
JUDGMENT :
1. This petition for a writ of habeas corpus has been filed by Rinku Rukshar, asking that the detenue, Asif, her minor son, be ordered to be produced before this Court from the unlawful custody of Arshad, the minor's father, and, set at liberty by being given into her custody. The relief though worded differently in substance seeks what the Court has delineated above.
2. The facts here go to show that Rinku Rukshar, the sole petitioner and the respondent no. 4, Arshad were married according to the Muslim rites on 14.12.2014. A child Asif, the minor, now aged a little less than six years was born of the wedlock of parties. The petitioner claims to have been driven away from her matrimonial home about five years ago, and since then, she is staying with her maternal aunt. It appears that on 13.05.2020, the husband Arshad came over to the petitioner's maternal aunt's place and said that she may come over and stay with him along with her children.
3. The petitioner appears to have stayed with the husband for a few days before bickerings, again marred the parties' matrimonial peace. She was once again thrown out of the matrimonial home, with the husband telling her that he could not take care of the petitioner and her children. It is the petitioner's case that on 04.08.2020, her husband assaulted her with an intention to kill. The petitioner called rescue at the Police facility number 112. Before the police could arrive, the petitioner's husband Arshad and Arshad's sister Reshma, who is the 5th respondent here escaped from the village, taking along with them the detenue, the petitioner's minor son, Asif.
4. The petitioner lodged a first information report against Arshad and his sister Reshma on 08.08.2020. This report was lodged on some portal relating to Jan Sunwai, where it has a reference number. It does not appear to have been registered as a crime. The petitioner's grievance is that no action has been taken by the Police to recover her son, the minor. It is the petitioner's case, therefore, that the minor's custody with the father, who has virtually snatched him away from her lap, along with his sister Reshma, is unlawful. The minor should be liberated from his father's custody unlawfully taken and held, and restored to the mother, the petitioner.
5. Heard Sri Dilip Kumar Srivastava, learned counsel for the petitioner, Sri Radhey Shyam, learned counsel appearing on behalf of respondent no. 4 and Sri Indrajeet Singh, learned AGA appearing on behalf of the State.
6. In compliance with the rule nisi issued by this Court on 05.10.2020, the minor-detenue Asif has been produced in Court. The mother, Rinku Rukshar and her husband, the minor's father Arshad have also appeared.
7. I have spoken to the minor, who is less than six years old. He is an intelligent child but of tender years. Though, he has expressed his wish to stay with his father but going by his age and maturity of the mental faculty, the choice is far from an intelligent one. The choice has been expressed that way out of emotions because he is staying with the father. This aspect of the matter shall be considered a little later in the judgment.
8. Learned counsel appearing for respondent no.4, Sri Radhey Shyam has raised a preliminary objection that a petition for a writ of habeas corpus cannot be maintained against the father, who is the minor's natural guardian. A writ of habeas corpus is available, according to Mr. Radhey Shyam, against an utter stranger or a distance kindred, who holds the minor in custody without any semblance of a right. Learned counsel for respondent no.4 emphasizes that the father is the minor's natural guardian under the personal law of parties. In case, the petitioner wishes to show that she has a better right to the minor's custody on the principle about the minor's welfare being paramount that ought to prevail over what the personal law of parties says, the remedy of the petitioner is to move the Court under the Guardianship and Wards Act,
