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2023 Supreme(All) 1231
IN THE HIGH COURT OF ALLAHABAD
Shamim Ahmed, J.
Master Devansh Agarwal detenue Throurgh Deepti Goel And Another – Petitioners
Versus
State of U.P. Through Principal Secretary Home. Lko And Others – Respondents
Habeas Corpus Writ Petition No. - 9307 of 2020, C.M. Application No. 1A/14/2022, C.M.Application No. 25 & 15/2022)
Decided On : 07-04-2023
Advocate Appeared:
For the Petitioner: Arun Sinha, Siddhartha Sinha, Sushil Kumar Singh
For the Respondent: Ashok Kumar Singh, Deepak Agarwal, Gantavya, Gavrav Mishra, Lalit Mohan Singh, Mr. Nirmit Srivastav, Mr. Prabhjit Jauhari, Nirmit Srivastava, R.P. Shukla, Vivek Sonkar
The welfare of the child is the paramount consideration in custody disputes, and meaningful interaction with both parents is essential for the child's well-being.
Headnote:
Habeas Corpus - Child Custody Dispute - Dowry Demand - Abduction - Custody Rights - Visitation Rights - [DOWRY DEMAND] - [FAMILY LAW] - [Sections 498-A, 336, 506 of I.P.C., Section 3/4 of Dowry Prohibition Act] - The court found that the detention of the minor child by the father was illegal and without authority of law. The father flouted court orders regarding the production of the child and visitation rights, leading to the decision to issue a writ of habeas corpus to produce the child before the court for handing over to the mother. The court emphasized the welfare of the child as the paramount consideration and modified the visitation rights to ensure meaningful interaction between the child and both parents.
Fact of the Case:
The case involved a child custody dispute arising from serious differences between the parents, dowry demands, and the abduction of the child by the father. The mother sought a writ of Habeas Corpus to produce the child and hand over custody to her.
Finding of the Court:
The court found the detention of the child by the father to be illegal and without authority of law. It observed that the father flouted court orders and emphasized the welfare of the child as the paramount consideration.
Issues: The issues included the legality of the child's detention, the father's compliance with court orders, and the welfare of the child.
Ratio Decidendi: The court's decision was based on the principle that the welfare of the child is of paramount consideration in custody disputes. It emphasized the need for meaningful interaction between the child and both parents.
Final Decision: The court issued a writ of habeas corpus to produce the child before the court for handing over to the mother. It modified the visitation rights to ensure meaningful interaction between the child and both parents.
JUDGMENT :
Shamim Ahmed, J.
1. This case is listed before this Court being regular Bench, as per constitution/roster of this High Court.
2. C.M. Application No. 1A/14/2022 and C.M. Application No. 25/2022 have been moved by the respondent No.3 (father of the detenue) on 07.03.2022 and 02.12.2022 respectively for modification of the order dated 14.12.2021 and 06.01.2022 and C.M. Application No.15/2022 has been moved by the petitioner’s next friend (mother of the detenue) on 07./08.03.2022 for modification of the order dated 06.01.2022 passed by co-ordinate Bench of this Court in the present habeas corpus writ petition.
3. Heard Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Sushil Kumar Singh, learned counsel for the petitioners, Shri Prashant Chandra, learned Senior Advocate assisted by Ms. Meha Rashmi, learned counsel for opposite parties 3 to 6 and Shri Diwakar Singh and Shri Hari Shanker Bajpai, learned AGA-I for the opposite parties 1 and 2 and perused the record.
4. The petitioners had filed this Habeas Corpus petition, bearing No. 9307 of 2020 with the following reliefs:
“(i) Issue a writ, order or direction in the nature of Habeas Corpus directing the opposite parties to produce the petitioner No.1/Detenue and handover his custody to the petitioner No.2.
(ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.”
5. The brief facts of the case are that opposite party no.3-Dr. Dinesh Agarwal and petitioner no.2 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.
6. 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 has 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.
7. 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 ga
