Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 229

IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Gyanmati Kushwaha And Another - Petitioner
Vs.
State Of U.P. And 4 Others – Respondent
HABEAS CORPUS WRIT PETITION No. - 1217 of 2019
Decided On : 26-02-2021

Advocates Appeared:
For The Appellant : Azad Khan,Mohini Jaiswal
For The Respondent: G.A.,Ali Hasan,Fakhruzzaman,Om Prakash,Fakhra Uz Jama

Point of law: Minor girl – custody – Pendency of criminal case against mother – Custody given to father - in the event the mother is acquitted by judgment based on doubt or otherwise, she would have the right to move a court of competent jurisdiction for her daughter’s custody, which would then be decided in accordance with law.

Headnote:
Hindu Minority and Guardianship Act, 1956 – Sections 17, 6 – Code of Criminal Procedure, 1973 – Section 97 – Custody of child – Minor girl aged about two years, be ordered to be produced before this Court from the custody of respondent no. 5, Kamal Kushwaha, and emancipated therefrom in the manner that she be entrusted into the care and custody of the first petitioner, her mother.
Finding of the court: Court is deprived of knowing the wishes of the minor, because she is too young to express her intelligent choice. – The minor's choice has been underscored by their Lordships in Nil Ratan Kundu and also in the provisions of Section 17(3) of the Act of 1890, but that can have no application in the present case, where the minor is a very young child, presently aged about three years and a half. – It is the circumstances and the facts on record that alone can serve as a guide in the foreshadow of settled principles about the minor’s welfare to decide the question of her custody. – It is not known to this Court as to what are the circumstances appearing against the mother, on the basis of which she has been charged with conspiracy in her husband’s murder. – Court ought not to investigate those circumstances also, that are the concern of the court where she is facing trial, but, as matters stand, she is an accused in a case relating to her husband's murder. – The fact that she is an accused is not in doubt. – One consequence of this fact is that she faces a situation where she could be convicted, though the presumption of innocence is all along with her. – If she were to be convicted, the minor’s welfare would be thrown into disarray. – It would be irreversibly unsettling and debilitating in her formative years. – It may even expose her to insurmountable trauma, if she witnesses her mother, whom she is bonded with, convicted in the case of her father’s murder. – Court assumes that the possibility of conviction may be remote or not so remote, but the possibility is there. – The existence of this possibility and the adverse impact of the event, if it were to come to pass, would far outweigh the transitory benefit the minor would derive from her mother's care and company. – This facet of the matter apart, the possibility that the mother might truly be a conspirator in her husband's murder, predicates a personality which would not be beneficial for the minor in grooming her about her moral values -a very important aspect of a child’s welfare. – On the other hand, if the mother is innocent and she is acquitted, the loss, the minor would suffer on account of deprivation of her mother's care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor’s surer welfare, in preference to a contingent better, fraught with risk. – It is made clear that in the event the mother is acquitted by judgment based on doubt or otherwise, she would have the right to move a court of competent jurisdiction for her daughter’s custody, which would then be decided in accordance with law.
Result: Petition Dismissed

JUDGMENT :

J.J. Munir,J.

1. This petition for a writ of habeas corpus has been instituted by the first petitioner, Gyanmati Kushwaha, asking that her minor daughter, Drisha Kushwaha, aged about two years, be ordered to be produced before this Court from the custody of respondent no. 5, Kamal Kushwaha, and emancipated therefrom in the manner that she be entrusted into the care and custody of the first petitioner, her mother.

2. Pending admission, by an order dated 12.02.2020, Suresh Kushwaha was ordered to be impleaded as respondent no. 6, inasmuch as it transpired from an order passed by the City Magistrate dated 20.11.2019 that the minor, Drisha, petitioner no. 2 was in the former’s custody, who is Drisha’s grandfather (paternal). He was, accordingly, impleaded as respondent no. 6.

3. This petition was admitted to hearing vide order dated 24.09.2020, and a rule nisi was issued, ordering Drisha Kushwaha, the minor, to be produced on 08.10.2020. On the date of return, a counter affidavit was filed on behalf of respondent no. 6, to which a rejoinder affidavit was filed too, in Court. On that day, Drisha’s mother, Gyanmati Kushwaha, the first petitioner, her grandfather Suresh Kushwaha, the sixth respondent, and her father's maternal uncle Kamal Kushwaha, the fifth respondent were present. The matter was heard at length. The hearing was adjourned to 15.10.2020. It was further heard on 15.10.2020, with Smt. Gyanmati Kushwaha and Suresh Kushwaha being in attendance. On the said date, judgment was reserved, with a direction that Gyanmati Kushwaha and Suresh Kushwaha will appear on the date fixed for delivery of judgment, to be intimated by the Registry.

4. The facts that appear from the record are that the first petitioner, Gyanmati Kushwaha and the late Krishna Kushwaha, son of Suresh Kushwaha, were married, according to Hindu rites, on 11.11.2011 at Shree Durga Bhavani Seva Mandal, Shivaji Nagar, B.M.C. Colony, Bandra East, Mumbai. This marriage was according to the wishes of the husband and wife, and as it appears, did not have origins in the blessings of the couple’s families. Later on, Smt. Gyanmati Kushwaha and her late husband, Krishna Kushwaha, appear to have persuaded their respective families to bless the couple, which followed a marriage in right earnest being solemnized all over again on 26.11.2012. There is a photostat copy of the invitation card relating to that marriage on record, which no one has disputed before this Court. In course of time, a daughter was born to the parties, who came to be named Drisha. She was born on 28.05.2017. It is about her custody that the mother and her grandfather, Suresh Kushwaha, are engaged in a strife.

5. To revert some paces in time, in the sequential narration of events, it is Gyanmati’s case that she, her husband Krishna Kushwaha and her daughter Drisha were domiciled in Mumbai. Gyanmati’s husband Krishna Kushwaha had come away to his native place at Jhansi on 11.05.2018, while Gyanmati stayed back in Mumbai. She received a call from Kamal Kushwaha, her husband’s maternal uncle, on 13.05.2018, that some unknown offenders had done Krishna to death. Kamal Kushwaha asked Gyanmati Kushwaha to come over to Jhansi along with her daughter. She immediately proceeded to Jhansi along with Drisha. Once there, she met Kamal Kushwaha. Kamal took along Gyanmati to the police station, where she was surprised to know that she had been implicated in her husband’s murder, as she says at the instance of Kamal, and was arrested. Gyanmati Kushwaha was remanded to judicial custody on 16.05.2018, and at that time, Kamal snatched away Drisha from her. It is said that at that time, Drisha had not yet been weaned away, but still, Gyanmati was deprived her daughter's care and custody, while in jail. Gyanmati Kushwaha applied for bail and was released from prison on 10.09.2018. The parties are ad idem that Gyanmati Kushwaha is currently facing trial as a co-accused in the case relating to her husband's murder. Afte

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