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IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Shiva Minor And Another - Petitioner
Vs.
State Of U.P. And 5 Others - Respondent
HABEAS CORPUS WRIT PETITION No. - 988 of 2019
Decided On : 01-03-2021
Guardians and Wards Act, 1890 – Section 17 – Hindu Minority and Guardianship Act, 1956 – Sections 6, 13 – Estranged couple – They have two children, Shiva and Suraj, both minors. Shiva is aged five years old, whereas Suraj is three and a half years in age. Both the children currently stay with their father, Devendra Kumar, along with their grandmother, Smt. Neelam and their father’s brother, Dhan Singh. – The mother says that the two children ought to stay with her in order to secure their welfare better. Devendra Kumar, the minors’ father, Smt. Neelam, their grandmother and Dhan Singh, their uncle, resist this claim. – It is this tussle over the minors’ custody that has led Smt. Pushpa Devi @ Mahi to institute these proceedings for the issue of a writ in the nature of habeas corpus.
Finding of the court: Court finds that Pushpa Devi @ Mahi, the minors' mother is better educated than the father, who is an illiterate. – There is also no better comfort or environment in the father's home, compared to that of the mother’s, which this Court was able to gather. – The father has his mother, brother and nieces living with him, with the nieces being left to care for the minors. – The father earns his livelihood by working as an unskilled casual labourer. His pursuit for livelihood would leave him no time to extend any personal care to the minors. – It is for this reason that he has to leave the minors to the care of his nieces. – Between the father's nieces, who are the minors' cousins and the minors' mother, decidedly, the mother's constant care and supervision would ensure a better welfare for the two minors here. – The slightly better education of the mother than the father, would also augur well for the minors' prospects in the matter of their education. – There is an English Medium School about the place where the mother resides and this fact has not been challenged by the father. – There is no doubt that the two minors would be admitted to a suitable institution of formal instruction/ school in order to equip them educationally. – At the same time, the father, as already said, busy as he is with earning his daily bread, the minors might be neglected, resulting in either of them or both, going wayward in life. – On the other hand, the mother stays home and would, therefore, be better equipped to exercise a closer vigil over the minors' daily activities – Court is of opinion that the minors, Shiva and Suraj, ought to remain in their mother's custody and care. – At the same time, Devendra, being their father too, cannot be deprived of their company altogether, and the minors, his paternal affection. – This can be ensured by ordering a suitable schedule of visitation for the father, where he could meet the minors and spend time with them, as they stay with their mother. – It would be appropriate in the circumstances that the father may be permitted to meet both, Shiva and Suraj, once every fortnight between 10:00 a.m. to 2:00 p.m. Devendra can meet the minors either on alternate Sundays or any other week day, suitable to him, going by the contingencies of his engagement, which he may intimate to Pushpa Devi @ Mahi. – Visitation, as aforesaid, shall be adjusted by the parties by mutual consent about the day of visitation, but with the restriction that there have to be two visitations every month. – This arrangement would continue till Shiva and Suraj attain the age of majority.
Result: Writ Petition Allowed
JUDGMENT :
J.J. Munir,J.
1. Smt. Pushpa Devi @ Mahi and her husband, Devendra Kumar, are an estranged couple. They have two children, Shiva and Suraj, both minors. Shiva is aged five years old, whereas Suraj is three and a half years in age. Both the children currently stay with their father, Devendra Kumar, along with their grandmother, Smt. Neelam and their father’s brother, Dhan Singh. The mother says that the two children ought to stay with her in order to secure their welfare better. Devendra Kumar, the minors’ father, Smt. Neelam, their grandmother and Dhan Singh, their uncle, resist this claim. It is this tussle over the minors’ custody that has led Smt. Pushpa Devi @ Mahi to institute these proceedings for the issue of a writ in the nature of habeas corpus.
2. This petition was instituted on 31st of October, 2019. The proceedings in this case commenced on 05.11.2019, when notice was issued to Devendra Kumar to produce the two minors before the Court on 04.12.2019. The case was adjourned on 04.12.2019, awaiting a compliance report from the Chief Judicial Magistrate, Shahjahanpur. On 02.01.2020, the Court recorded that notice had been served upon respondent no.4 personally, but the minors have not been produced. The Chief Judicial Magistrate was directed to ensure the minors’ presence, attended with a direction to the Senior Superintendent of Police, Shahjahanpur to facilitate the process. On 21.01.2020, which was the date fixed for the return vide order dated 02.01.2020, the minors were produced, but their personal appearance was exempted until ordered otherwise. The case came up again on 10.02.2020 and was adjourned to 17.02.2020. There was then an adjournment from 17.02.2020 to 25.02.2020 and from 25.02.2020 to 04.03.2020. It must be remarked here that all proceedings until 19.10.2020 were taken without a formal admission of the petition to hearing.
3. On 19.10.2020, when the petition came up, a detailed order was passed, admitting the petition to hearing and ordering the Superintendent of Police, Shahjahanpur to cause the minors to be produced from the custody of respondent nos.4, 5 and 6 on the date of return, which was indicated to be 22.10.2020. It was also ordered that Devendra Kumar, the minors’ father and Smt. Pushpa Devi @ Mahi, the minors’ mother, who had effectively petitioned on behalf of the minors, shall also remain present in person.
4. On 22.10.2020, this Court after considering the overall circumstances of the case and particularly, the fact that the minors’ estranged parents were a young couple, thought it to be a possibility that their differences were reconciled. This the Court thought would best serve not only the interest of the estranged spouses, but the minors too. Bearing this in mind, both parties were referred to the mediation of the Allahabad High Court Mediation and Conciliation Centre vide order dated 22.10.2020.
5. The parties appeared before the Centre and two sessions were held on 22.10.2020 and 23.02.2020. The Centre’s report dated 23.10.2020 made in Mediation Case no.922 of 2020 indicates the following :
6. The attempt to reconcile parties being not successful, the matter was taken up on 09.11.2020, but hearing could not proceed, as the minors were not produced. Their parents were also not present. Accordingly, by an order dated 09.11.2020, the Superintendent of Police, Shahjahanpur was again ordered to cause the minors to be produced on 11.11.2020. The case was heard on 11.11.2020 in the presence of Devendra Kumar, the minors’ father and Smt. Pushpa Devi @ Mahi, their mother, and judgment was reserved.
7. It must be remarked here that no counter affidavit was filed on behalf of respondent nos.4, 5 & 6, though Mr. Ajay Kumar Srivastava, learned Advocate appeared on their behalf. The facts before the Court are those, that are set out in the petition. There is no affidavit in rebuttal, though Smt. Pushpa Devi’s claim has been contested by respondent no. 4 at
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