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2024 Supreme(All) 114
IN THE HIGH COURT OF ALLAHABAD
JYOTSNA SHARMA, J.
Yajur Verma @Jai Verma – Appellant
Versus
State Of U.P. And Others – Respondents
Habeas Corpus Writ Petition No.831 of 2023
Decided on : 01-02-2024
Advocate Appeared:
For the Appellant : Mahesh Narain Singh, M.N. Singh
For the Respondent: Sarvesh
The welfare of the child is the paramount consideration in custody matters, and the court should balance the rights of the parties with the child's preference and welfare.
Headnote:
Habeas Corpus - Custody Dispute - Sections 307, 498A, 323, 504, 120B, I.P.C., Section 125 Cr.P.C. - Syed Saleemuddin vs. Dr. Rukhsana and others, (2001)5 SCC 247; Nithya Anand Raghavan vs. State (NCT of Delhi) and another, (2017)8 SCC 454; Meenakshi and another vs. State of U.P. and others Allahabad High Court, 2020 12 ADJ 254; Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others, (2019) 7 SCC 42 - The court considered the custody dispute in light of the welfare of the child, legal provisions, and previous court orders, emphasizing the paramount consideration of the child's welfare in custody matters.
Fact of the Case:
The petitioner, the father, sought custody of his minor son through a habeas corpus writ petition, alleging that his wife and her family had conspired to keep the child away from him.
Finding of the Court:
The court dismissed the habeas corpus writ petition, finding that the child's custody should not be transferred to the petitioner, considering the child's welfare and the complexities of the relationship between the parents.
Issues: Custody dispute over a minor child, allegations of conspiracy and misconduct, interpretation of previous court orders, and the welfare of the child.
Ratio Decidendi: The welfare of the child is of paramount consideration in custody matters. The court should exercise writ jurisdiction in suitable cases, and the rights of the parties should be balanced with the child's preference and welfare.
Final Decision: The habeas corpus writ petition seeking custody of the child was dismissed, and the child's custody was not transferred to the petitioner.
JUDGMENT :
Jyotsna Sharma, J.
1. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Mahesh Narain Singh, learned counsel for the petitioner, Sri Sarvesh, learned counsel for respondent no.4 and Mohd. Shoeb Khan, learned A.G.A. for the State.
2. This habeas corpus writ petition has been filed on behalf of minor son Yajur Verma @Jai Verma aged about four years through his father against Smt. Ashi Verma @ Hani Verma, mother of the corpus, the respondent no.4 and others.
3. The submissions of the petitioner in brief are as below-:
i. The marriage of Gaurav Verma, the petitioner with respondent no.4 was solemnized in 2010. Two sons were born to the couple, elder one Granth Verma is now aged about eight and half years and the younger one Yajur Verma is now aged about four and half years. Parental houses of both sides are hardly 500 meters away from each other. The family members of his wife have been exerting pressure on him to stay with them.
ii. It is alleged in the petition that his wife Ashi Verma, all of sudden, in a preplanned manner stepped down from the train in the night of 27/28.09.2021 at Jhansi Railway Station, when they were returning from Ujjain. He lodged a missing report and she was recovered from Gwaliar railway station and was given in custody, to her father Kamlapati Verma. In pursuance of this conspiracy between his wife and father-in-law, his two sons were snatched away by his wife and her father and they left for Etawah. The petitioner requested his father-in-law and his wife to return the kids but they did not budge. They pressurized Gaurav Verma but he refused to sign certain papers. Thereafter his wife lodged a false F.I.R. as case crime no.433 of 2021, under Sections 307, 498A, 323, 504 120 B, I.P.C., Another case under Section 125 Cr.P.C. has been filed against the petitioner which was decided on the basis of a compromise. With the permission and consent of the petitioner corpus was admitted in pre-nursery class in Etawah. However, all of sudden without informing him, Yajur Verma was withdrawn from his school at Etawah and has been admitted in a school at Lucknow. Opposite party no.4, Ashi Verma, his wife is now pursuing LLB course at Etawah. These facts have proved that Yajur Verma, their minor son is not in custody of his mother and has been left under the care of some distant relative or some other. In view of the above facts, the petitioner has no alternative remedy except to file this habeas corpus writ petition for production of his child.
iii. One of the contentions of the petitioner is that earlier a Habeas Corpus Writ Petition no.521 of 2022, Gaurav Verma vs. State of U.P. and others was filed by respondent no.4 with regard to elder son Granth Verma which was decided by a coordinate Bench of this High Court by order dated 22.09.2022, in which following directions were issued :-
“I. The Corpus shall remain with his father till a contrary direction, if any, is passed by any Court of Law.
II. Father shall not obstruct or object the visiting rights of mother of Corpus and he shall permit his mother to meet the Corpus on any day with prior notice as well as on each Sunday in day time at his home and father will also have similar liberty to meet his younger son at his mother's home.
III. Mother and father of Corpus are also directed not to create any ruckus during their visit at respective houses to meet the child.
IV. The Investigating Officer is directed to organize a mediation between parties as well as, if necessary, organize a counselling session for parents also.”
In view of said order passed by the High Court, the argument of the petitioner is that he was given visiting right in respect of his younger son at his mother’s house and his wife Ashi Verma has deliberately shifted his younger son to a boarding school at Lucknow, therefore, he can no longer meet him.
iv. A special appeal was filed challenging the aforesaid order dated 22.09.2022 which was decided by order dated 30.11.2022. In the afores
