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IN THE HIGH COURT OF ALLAHABAD
VIKAS KUNVAR SRIVASTAV, J.
Master Devansh Agarwal(Detenue) Thru. Deepti Goel & Another - Appellant
Versus
State Of U.P. Thru. Prin. Secy. Home. Lko & Others - Respondent
Habeas Corpus No.9307 of 2020
Decided on : 14-12-2021
Constitution of India, 1950 - Article 226, 226(1), Article 32 - Criminal Procedural Code, 1973 - Section 41 (1) AB - Indian Penal Code, 1860 - sections 498-A, 336, 506, 415, 361, 362 - Dowry Prohibition Act,1961 - Section 3 and 4 - Hindu Minority and Guardianship Act, 1956 - Section 6, 6(a), 13 - Hindu Marriage Act, 1955 - Section 9 - Indian Contract Act, 1872 - Section 18 –Guardians and Wards Act, 1890 - Section 9, 19 - Misrepresentation - Cheating - Natural guardians of a Hindu minor - Welfare of minor to be paramount consideration - Power of the Court to make order as to guardianship - Matters to be considered by the Court in appointing guardian - Whether custody of the children requires that the present custody should be changed, and the children should be left in care and custody of somebody else - Whether lies with present custody i.e, with father or lies in removal of custody from the father to hand over the same to his mother.
Findings of the court :
Detention of minor child by father is held illegal and without authority of law. Further, it has been observed by this court during pendency of petition several orders of the court with regard to production of child and even to facilitate meeting of mother with child were flouted over by father - This is enough to show that father not only has taken away child illegally from custody of mother but also he had not left any opportunity for child to see his mother or mother to see her child. This conduct of father if taken with facts of differences between husband and wife i.e., mother of the child by reason of which they are separately residing and fact that F.I.R. under Sections 498-A, 336, 506 of I.P.C. and Section 3/4 of Dowry Prohibition Act is lodged against father with regard to cruelty in connection with demand of dowry and abduction of child, there is reason to believe that father in furtherance of his malice towards mother will also make brain wash of child towards his mother that would not be in interest and welfare of child - Mother is competent enough to take care, maintenance and upbringing of the child with love and affection - She deserves to have custody of the child removing same from the father.
Result : Writ petition disposed of
JUDGMENT :
1. Heard learned counsel fort the petitioner, Sri Siddhartha Sinha, Advocate, learned counsel for the opposite party No.3 to 6, Ms. Rose Mary Raju, Advocate and learned A.G.A. for the State, Sri Anurag Singh Chauhan, Advocate.
2. The instant petition in hand is filed under Article 226 of the Constitution of India seeking issuance of writ in the nature of habeas corpus for production of a minor infant child, the petitioner no.1, namely, Master Devansh Agarwal (the detenue) through his mother, Smt. Deepti Goyal (daughter of Sri K.K. Agarwal), both resident of B47, Sector-H, Aliganj, District-Lucknow. Smt. Deepti Goyal herself is arrayed in the petition as petitioner no.2.
3. The relief claimed in the petition is reproduced hereunder:-
(ii) Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.
A. Factual Matrix
4. The pleadings indicate the relation between opposite party no.3 Dr. Dinesh Agarwal and petitioner no.2 as husband and wife. They have serious differences which lead to cleavage in their matrimonial life, resulting their non judicial separation from matrimonial home situated at Katras Bazar Rajbari Road, Katras, Dhanbad, Jharkhand. The petition discloses that petitioner No.2 and opposite party No.3 married on 30.6.2017. Soon after marriage Dr. Dinesh Agarwal, opposite party no.3 and his family members started demanding Rs.40 lacs in dowry from the petitioner no.2 as opposite party no.3 came to know that she has a P.P.F. account worth more than Rs.40 lacs. Apart from the said demand of dowry, the opposite party no.3 and his family members namely petitioner’s father-in-law, Sri Jeewan Lal Agrawal and others started torturing her mentally and physically in connection with the said demand. Due to the harassment, petitioner no.1 was compulsed to live in Lucknow most of the time where the petitioner no.1, detenue was born on 3.7.2018. Petitioner no.1 and 2 were brought by the opposite party no.3 to Dhanbad after birth of detenue but due to constant harassment petitioner no.2 forced to come back to Lucknow with petitioner no.1 by the end of February, 2020 and had been staying in Lucknow ever since.
5. On 6.6.2020, the opposite party no.3 suddenly came to the house of the petitioner no.2 and pretended that he wants to reconcile with the petitioner no.2. He stayed there, but on the next morning at about 9 O'clock, the opposite party no.3 pretended to take the child out from the house. He taken away the detenue, petitioner no.1 assuring the petitioner no.2 to come back after having a short drive with him. Opposite party no.3 even left his luggage at the house of petitioner no.2 to assure and keep her into impression that he will return with the petitioner no.1 but actually he ran away and kidnapped the petitioner no.1 detenue with the help of his driver. After that petitioner no.2 through their common friend came to know that the opposite party no.3 have reached at Katras, District-Dhanbad, State of Jharkhand taking away the detenue with him illegally from the custody of petitioner no.2. Petitioner no.2 when contacted the opposite party no.3, he told that petitioner no.2 should give access of her P.P.F. account to him if she wants petitioner no.1, detenue back.
6. Since the incident dated 7.6.2020 of abduction of petitioner no.1, the child is by his father (the opposite party no.3), he is in custody of father in Katras, District Dhanbad in the State of Jharkhand. This gave rise to the inter parental custody dispute pertaining to their minor child. For the purpose of brevity and convenience hereinafter in foregoing paras wherever contextually needed the opposite party no.3, the petitioner no.2 and the petitioner no.1 shall be addressed also as ‘father’ ‘mother’ and ‘the child/
Points of Law : The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child ....
The welfare of the child is the decisive factor for the claim of custody, and the court should strike a balance between the welfare of the child and the rights of the parents over the child.
Natural guardians of child have right to custody of child, but that right is not absolute and courts are expected to give paramount consideration to welfare of minor child.
Custody decisions must prioritize the welfare of the child over the statutory rights of guardians, as seen in custody disputes. The petitioner's financial status cannot solely determine custody outco....
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