2021 Supreme(All) 217

IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Master Aryan And Another - Petitioner
Vs.
State Of U.P. And 10 Others - Respondent
HABEAS CORPUS WRIT PETITION No. - 389 of 2020
Decided On : 01-03- 2021

Point of law: Custody of child – Involvement of mother in homicidal death of other – If the mother is acquitted, it would be open to her to apply to the court of competent jurisdiction, asking for her sons' custody, and if in that contingency, the mother does apply, the court, exercising jurisdiction under the Act of 1890, would decide her claim about the minors' custody, consistent with their welfare, but unaffected by anything said in this order.

Headnote:

Guardians and Wards Act, 1890 – Section 17 – Hindu Minority and Guardianship Act, 1956 – Section 6 – Custody of child – Master Aryan and Master Chetan are two young boys, who have lost their father to a crime. – Their deceased father, was murdered. – The boys’ misfortune was worsened, as their mother, Sonia, was arrested as a co-accused in the crime, along with Pramod, son of Rajbira and Mahbood, son of Yusuf Ansari. – She was arrested and sent to jail – She was admitted to bail by this Court and released from prison, – During the period of her incarceration, the two boys were taken away by respondent nos. 4 to 11, who are their late father’s family members. – Once Sonia emerged from jail, she demanded her children’s custody, which respondent nos. 4 to 11 denied. Sonia, who is the mother and the natural guardian of Master Aryan and Master Chetan, has instituted this petition for a writ of habeas corpus, asking this Court to order respondent nos. 4 to 11 to produce her sons and to set them at liberty, in the manner that they be entrusted to her custody. – Petition was admitted to hearing, and a rule nisi was issued to respondent nos. 4 to 11, ordering the Superintendent of Police to cause the two boys, who were in custody of respondent nos. 4 to 11, to be produced before this Court – On the date of return, Aryan and Chetan were produced before the Court. – Respondent nos. 5 and 9 alone put in appearance through Mr. Pankaj Bharti, Advocate. – Court interacted with the elder of the two children, Chetan, in order to ascertain his wishes about his choice of the person he would like to be with. – Court not only ascertained his wishes, but also recorded impressions about the expression of choice by Chetan, in the order – It would be alluded to in some detail later in this judgment.

Finding of the court:

It is true that the involvement of a spouse in the homicidal death of the other is a matter that has serious bearing on the issue, whether the child's custody could be entrusted to the accused parent, so long as his/her guilt or innocence is not determined. – Generally, it does not augur well for the child's welfare, to be placed in the custody of a parent, whose fitness to cater to his welfare is seriously in doubt, unless acquitted. – Here, it is true that the charge against the wife is one of conspiracy, but true or not, she is accused of her husband's murder, along with a paramour. – If the charge were true, the mother would not be an ideal person to groom the young children, whose welfare not only requires fulfillment of their physical needs, but many other things, which includes their moral character. – That apart, the circumstances which faintly appear in this case about the crime, and which this Court does not wish to know or probe in greater detail, suggest that if the charge were true, the minors' safety might also be compromised. – Court must refer to the interaction that we had with the minors. – Elder of them, Chetan, who is seven-years-old, expressed his mind to the Court. – He appears to be a bright and intelligent child, capable of clearly expressing his mind and preference. – He expressed his dislike for his mother and said that he wishes to stay with his aunt and uncle (respondent nos. 5 and 9). – He has said a few things about his mother, which did not appear to come from him spontaneously. – He has expressed his feelings of animosity and dislike for his mother, that are traceable to tutoring by his uncle and aunt (respondent nos. 5 and 9). – On being asked why he disliked his mother, he candidly told the Court that he was informed about it all by his uncle and aunt (respondent nos. 5 and 9). Whatever Chetan told the Court, appears to be heavily under the influence of respondent nos. 5 and 9, who are his kindred, but this is one facet of the matter. – For the present, the mother, indeed, faces a charge about her husband's murder, in relation to which, she is facing trial. – There is a possibility, remote or not so remote, that she might be convicted and sentenced on the charge relating to her husband's and the minors' father's murder. – If that were to happen, while the minors are staying with her, it would cause great trauma to the minors, to know that their mother, with whom they have bonded and are living, stands convicted of the father's murder. – Of course, this is not so much to suggest or believe, so far as this Court is concerned, that the mother is guilty. – All that this Court says, bears in mind the minors' welfare, if the contingency above mentioned were to come true. – It is certainly a situation which ought to be avoided at the cost of depriving the minors of their mother's care and custody. – Of course, if the mother is acquitted, it would be open to her to apply to the court of competent jurisdiction, asking for her sons' custody, and if in that contingency, the mother does apply, the court, exercising jurisdiction under the Act of 1890, would decide her claim about the minors' custody, consistent with their welfare, but unaffected by anything said in this order. – Court must refer to the interaction that we had with the minors. – The elder of them, Chetan, who is seven-years-old, expressed his mind to the Court. – He appears to be a bright and intelligent child, Court does not find any good ground to make the rule nisi absolute.

Result: Petition Dismissed