2021 Supreme(All) 216

IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Master Advait Sharma - Petitioner
Vs.
State Of U.P. And 5 Others - Respondent
HABEAS CORPUS WRIT PETITION No. - 450 of 2020
Decided On : 19-2-2021

Point of law: Custody of child – Filing of false forged affidavit by mother - Perjured statement in the supplementary affidavit – Custody granted to father

Headnote:

Hindu Minority and Guardianship Act, 1956 – Section 6 – Guardians and Wards Act, 18902 – Section 25 – Child’s custody in Question – Master Advait Sharma, a child of three years and a half, occupies the centre stage of controversy, that is the subject matter of this Habeas Corpus Writ Petition. – It about the child’s custody that his parents are entangled in a bitter battle. – The child’s misfortune, circumstanced as he is, is the fallout of an estrangement of his parents, who do not seem to have got along in matrimony. – Advait's parents, Preeti Rai and Prashant Sharma, were married – Preeti Rai is an I.T. Engineer, employed with a Multinational Corporation. – Prashant Sharma is a Sales Manager with a business house. – He is currently serving as an Area Manager with Tropicana Juices, a company based at Ghaziabad. – Advait was born of the wedlock of Preeti Rai and Prashant Sharma – Smt. Sharda Sharma and Chandra Kishore Sharma, who figure in the array of parties to this Habeas Corpus Writ Petition, are Prashant’s mother and father, and Advait’s grandparents. – There is trading of allegations by the spouses, that carry varying versions to suit each about their case, why they fell apart. – But, that does not matter, so far as the present proceedings are concerned. – This petition has been brought by Preeti Rai, on behalf of Advait, saying that her minor son is in the unlawful custody of his father and grandparents, wherefrom he ought to be relieved and delivered to her. – Preeti Rai was earlier posted in the N.C.R., but she says that she was thrown out of her matrimonial home over issues relating to dowry. – She then sought a transfer to Bengaluru, with the intention to stay close to her son, because Advait’s grandparents would often take him away to their daughter’s place in Bengaluru. – However, within a few days of Preeti’s arrival in Bengaluru, Advait was relocated to Delhi. – Pleadings of parties are replete with virtues claimed for themselves and demonizing the other party, including the in-laws on both sides. – That again, ought not to be looked into or considered by this Court much, except to the extent that it is relevant to the issue of the minor’s welfare.

Finding of the court: Court does not wish to go much into the question, whether the document is forged or not, but it would be in the interest of both parties that Advait, so long as he is in the custody of one of the parties while they stay estranged, ought not to leave the country with one parent alone without the consent of the other. – It is also necessary that in the circumstances, apart from visitation rights to meet the minor at Bengaluru, Prashant should also have unsupervised visitation rights of one week at a time, thrice a year, when the child would stay with Prashant alone and the child’s grandparents, if they are staying with Prashant. – Preeti shall ensure that Advait is taken to Prashant for one week at a stretch, thrice a year, and permitted to stay with Prashant, uninterfered with by Preeti. – It will be Prashant’s responsibility to deliver Advait back to Preeti’s custody at the end of each period of one week’s stay. – It is also made clear that the schedule of these three visits, in one calendar year, shall be mutually agreed upon by parties, subject to the conditions that the week long stay for Advait with his father, shall be not less than thrice a year. – So far as the father’s visitation to Advait at Bengaluru or wherever Preeti is living is concerned, he would have the right, once a month at Bengaluru, by calling over Advait to his sister’s place for seven hours on any Sunday of the Month, between 10:00 a.m. to 5:00 p.m. – This arrangement would apply even if Preeti’s posting is at a different station, with the modification that the parties would then choose the venue of this monthly visitation mutually.

Result: – Writ Petition Allowed