IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ Jurisdiction Case No.189 of 2022

Arising Out of PS. Case No.-297 Year-2019 Thana- PIRBAHOR District- Patna

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Jyoti Kaur, age about 31 years, Female, Wife of Ravi Saluja, Resident of

Khazanchi Road, P.S.- Pirbahore, District- Patna and Wife of Rohan Kumar,

Ilahibagh, Bairiya, P.S.- Gopalpur, District- Patna.

... ... Petitioner/s

Versus

1.The State of Bihar through Director General of Police, Patna.

2.The Inspector General of Police, Patna Zone, Patna.

3.The Senior Superintendent of Police, Patna.

4.The Deputy Superintendent of Police, (Town) Gandhi Maidan, Patna.

5.The Officer-in-Charge, Mahila Police Station, Gardanibagh, Patna.

6.The S.H.O., Pirbahore Police Station, Ashok Raj Path, Patna.

7.The S.H.O., Gopalpur Police Station, District- Patna.

8.Ravi Saluja, age about 37 years, Son of Sri Trilochan Saluja, Resident of

Mohalla- Khazanchi Road, P.S.- Pirbahore, District- Patna.

... ... Respondent/s

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Appearance :

For the Petitioner/s : Mr. Uday Shankar Choudhary, Advocate with

Mr. Ritesh Kumar, Advocate

For the Respondent No.8 : Mr. Ajay, Advocate

Mr. Krishna Chandra, Advocate

For the State/R1-R7 : Mr. Prabhu Narayan Sharma, Adv. [AC to AG]

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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH

and

HONOURABLE MR. JUSTICE PURNENDU SINGH

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH)

Date : 01-07-2022

Heard Mr. Uday Shankar Choudhary, learned counsel for

the petitioner; Mr. Ajay, learned counsel for respondent no.8, and;

Mr. Prabhu Narayan Sharma, learned Assistant Counsel to the

learned Advocate General, for the official respondents/State.

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2. The petitioner has moved the Court for the following

reliefs:

“(i) For the issuance of an appropriate

writ/order/direction including a writ in the nature

of Habeas Corpus to the Respondent Police

authorities for recovery of Victim girl namely Bani

Saluja who is in illegal confinement/ custody of

Respondent No.-8 namely, Ravi Saluja (Father)

since 11.01.2022 till date, and be handed over to

the Petitioner.

(ii) For issuance of an appropriate

writ/order/direction including a writ in the nature

of mandamus commanding the Respondent

authorities to especially Respondent No.- 3, 5, 6, 7

and the Respondent authorities to recover the

female child Bani Saluja who is in illegal

confinement of Respondent No.- 8

(father of the

victim) against wishes of the Petitioner, violating

the mutual agreement between the Petitioner and

the Respondent No.- 8 filed in their mutual

Divorce Petition and also Judgement passed by

the Principal Judge, Family Court, Patna.

(iii) For issuance of a direction to the

Respondent authorities to lodge an FIR for illegal

confinement of the minor daughter of the

Petitioner by the Respondent No.- 8, till date

neither FIR has been lodged nor recovery has

been made.

(iv) For issuance of an appropriate

writ/order/direction including a writ in the nature

of mandamus commanding the Respondent

authorities to take appropriate steps to fix the

responsibility on the Respondents and for not

performing the legal duties, further punishment

may be levelled upon them. And to hold the

departmental proceedings against the Respondent

No.- 5, 6 and 7 who are responsible for the

recovery of the Victim baby child namely Bani

Saluja.

(v) For the grant of such other relief(s)

as the petitioner would be found entitled to, on the

facts and in the circumstances of the case.”

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3. Having due regard to the nature of the lis, the Court

deemed it appropriate to interact with the daughter/girl child [Ms.

Bani Saluja] in Chambers, stated to have been taken away by the

respondent no.8 in violation of the order dated 23.11.2020 of the

learned Principal Judge, Family Court, Patna in Matrimonial Case

No.107/2020. On 30.06.2022, after spending almost two hours in

Court as also a few hours with Ms. Anamika T., learned Registrar

(Establishment) of this Court, the girl, her brother [Master Amrit

Saluja] and the mother of respondent no.8 [Mrs. Jaswant Kaur] as

also the mother-in-law of the petitioner [Mrs. Anita Srivastav]

went to the Circuit House, Patna where they spent the night of

30.06.2022, and today/01.07.2022 at 2:15 PM, they have appeared

before the Court. The petitioner, the respondent no.8 and the

husband of the petitioner [Mr. Rohan Kumar] are also present in

person. Today, the Court requested the learned Registrar

(Establishment) to interact with the girl child, and such interaction

took place over almost two hours. In our interactions, yesterday

and today, in extenso, with the girl child, the Court finds, apropos

her demeanour, that she is much more relaxed today, compared to

yesterday. Amidst this backdrop, the learned Registrar

(Establishment) has further interacted with her, on our directions.

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4. A brief reference to the facts is useful. The petitioner

and respondent no.8 solemnised their marriage on 10.11.2008.

They were blessed with a boy [Master Amrit Saluja on

19.05.2011] and a girl [Ms. Bani Saluja on 19.05.2015]. For

reasons with which we are not presently concerned, they preferred

a petition to obtain a decree of divorce with mutual consent under

Section 13B of the Hindu Marriage Act, 1955 on 24.01.2020

before the learned Principal Judge, Family Court, Patna [viz.

Matrimonial Case No.107/2020]. Judgement therein was delivered

on 23.11.2020, leading to the petitioner and respondent no.8

working out an arrangement concerning custody of the two minor

children. For completeness, be it noted that Paragraphs No.2 and 5

of the Judgement dated 23.11.2020 are relevant for the same.

Thereafter, the petitioner again married Mr. Rohan Kumar on

30.11.2020 and has been blessed with a male child [Master

Nishant Kumar] on 07.12.2021. The learned counsel for the

petitioner submitted that in pursuance of judgement dated

23.11.2020, decree of divorce was prepared on 05.12.2020.

5. That the extra-ordinary jurisdiction of this Court has

had to be invoked in the instant case is rather unfortunate, more so

when the warring parties are the biological parents. On one hand,

is the biological mother (petitioner), and on the other hand is the

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biological father (respondent no.8). While they are now divorced,

issues are being raised with regard to the girl child remaining with

the petitioner and the boy remaining with respondent no.8. At the

outset, we note that such arrangement is in terms of the

arrangement finalised vide order dated 23.11.2020 of the Court

below.

6. The contention urged by the petitioner is that as per

the arrangement supra, the son, who was in the custody of the

respondent no.8 had to be handed over to the petitioner. The boy

would reside with the respondent no.8 and the daughter would

reside with the petitioner. It is alleged that the arrangement was

continuing when respondent no.8 used to bring the son to her

house for overnight stay and the very next day, the petitioner

would allow respondent no.8 to take the son and the daughter with

him for one day. However, it is alleged that the son came to the

house of the petitioner on 10.01.2022 and the son was supposed to

go, along with the daughter to the house of respondent no.8 on

11.01.2022, which was done, but the daughter, who was supposed

to be sent back to the petitioner’s house on 12.01.2022, which did

not transpire, as claimed by the petitioner. Herein lies the genesis

of the dispute which engages our attention. The petitioner then

made pleas to the police, and later, the instant petition was filed.

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7. Before proceeding, we are mindful of the wisdom of

Lord Halsbury, LC in Cox v Hakes, (1890) 15 AC 506, on habeas

corpus, that ‘the essential and leading theory of the whole

procedure is the immediate determination of the right to the

applicant’s freedom.’ We bear in mind the guidance in Nil Ratan

Kundu v Abhijit Kundu, (2008) 9 SCC 413 to the effect that ‘…

in deciding a difficult and complex question as to the custody of a

minor, a court of law should keep in mind the relevant statutes and

the rights flowing therefrom. But such cases cannot be

decided solely by interpreting legal provisions. It is a human

problem and is required to be solved with human touch. A court

while dealing with custody cases, is neither bound by statutes nor

by strict rules of evidence or procedure nor by precedents. In

selecting proper guardian of a minor, the paramount consideration

should be the welfare and well-being of the child. In selecting a

guardian, the court is exercising parens patriae jurisdiction and is

expected, nay bound, to give due weight to a child's ordinary

comfort, contentment, health, education, intellectual development

and favourable surroundings. But over and above physical

comforts, moral and ethical values cannot be ignored. They are

equally, or we may say, even more important, essential and

indispensable considerations. If the minor is old enough to form

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an intelligent preference or judgment, the court must consider

such preference as well, though the final decision should rest with

the court as to what is conducive to the welfare of the minor.’

8. Having considered Gohar Begum v Suggi, AIR 1960

SC 93 and Kanu Sanyal v District Magistrate, Darjeeling, (1973)

2 SCC 674 in Syed Saleemuddin v Dr Rukhsana, (2001) 5 SCC

247, the Hon’ble Supreme Court elucidated thus:

‘11. From the principles laid down in the aforemen-

tioned cases it is clear that in an application seeking a

writ of habeas corpus for custody of minor children

the

principal consideration for the court is to ascertain

whether the custody of the children can be said to be

unlawful or illegal and whether the welfare of the chil -

dren requires that the present custody should be

changed and the children should be left in the care

and custody of somebody else . The principle is well

settled that in a matter of custody of a child the welfare

of the child is of paramount consideration for the

court . ….’

(emphasis supplied via bolding and underlining)

9. In Nithya Anand Raghavan v State (NCT of Delhi),

(2017) 8 SCC 454, the Hon’ble Supreme Court restated the law in

terms below-noted:

‘44. The present appeal emanates from a petition seek-

ing a writ of habeas corpus for the production and cus-

tody of a minor child. This Court in Kanu Sanyal v. Dis-

trict Magistrate, Darjeeling [Kanu Sanyal v. District

Magistrate, Darjeeling, (1973) 2 SCC 674 : 1973 SCC

(Cri) 980], has held that habeas corpus was essentially

a procedural writ dealing with machinery of justice. The

object underlying the writ was to secure the release of a

person who is illegally deprived of his liberty. The writ

of habeas corpus is a command addressed to the person

who is alleged to have another in unlawful custody, re-

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quiring him to produce the body of such person before

the court. On production of the person before the court,

the circumstances in which the custody of the person

concerned has been detained can be inquired into by the

court and upon due inquiry into the alleged unlawful re-

straint pass appropriate direction as may be deemed just

and proper. The High Court in such proceedings con-

ducts an inquiry for immediate determination of the

right of the person's freedom and his release when the

detention is found to be unlawful.

45. In a petition for issuance of a writ of habeas corpus

in relation to the custody of a minor child, this Court

in Sayed Saleemuddin v. Rukhsana [Sayed Saleemud-

din v. Rukhsana, (2001) 5 SCC 247 : 2001 SCC (Cri)

841], has held that the principal duty of the court is to

ascertain whether the custody of child is unlawful or il-

legal and whether the welfare of the child requires that

his present custody should be changed and the child be

handed over to the care and custody of any other per-

son. While doing so, the paramount consideration must

be about the welfare of the child . In Elizabeth [Eliza-

beth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 :

1987 SCC (Cri) 13], it is held that in such cases the

matter must be decided not by reference to the legal

rights of the parties but on

the sole and predominant

criterion of what would best serve the interests and

welfare of the minor. The role of the High Court in ex-

amining the cases of custody of a minor is on the

touchstone of principle of parens patriae jurisdiction,

as the minor is within the jurisdiction of the Court

[see Paul Mohinder Gahun v. State (NCT of

Delhi) [Paul Mohinder Gahun v. State (NCT of Delhi),

2004 SCC OnLine Del 699 : (2004) 113 DLT 823] relied

upon by the appellant]. It is not necessary to multiply

the authorities on this proposition.

46. The High Court while dealing with the petition for

issuance of a writ of habeas corpus concerning a

minor child, in a given case, may direct return of the

child or decline to change the custody of the child

keeping in mind all the attending facts and circum-

stances

including the settled legal position referred to

above. Once again, we may hasten to add that the de-

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cision of the court, in each case, must depend on the to-

tality of the facts and circumstances of the case brought

before it whilst considering the welfare of the child

which is of paramount consideration. The order of the

foreign court must yield to the welfare of the child. Fur-

ther, the remedy of writ of habeas corpus cannot be used

for mere enforcement of the directions given by the for-

eign court against a person within its jurisdiction and

convert that jurisdiction into that of an executing court.

Indubitably, the writ petitioner can take recourse to such

other remedy as may be permissible in law for enforce-

ment of the order passed by the foreign court or to re-

sort to any other proceedings as may be permissible in

law before the Indian Court for the custody of the child,

if so advised.

47. In a habeas corpus petition as aforesaid, the High

Court must examine at the threshold whether the

minor is in lawful or unlawful custody of another per-

son (private respondent named in the writ petition).

For considering that issue, in a case such as the present

one, it is enough to note that the private respondent was

none other than the natural guardian of the minor being

her biological mother. Once that fact is ascertained, it

can be presumed that the custody of the minor with

his/her mother is lawful. In such a case, only in excep-

tionable situation, the custody of the minor (girl child)

may be ordered to be taken away from her mother for

being given to any other person including the husband

(father of the child), in exercise of writ jurisdiction. In -

stead, the other parent can be asked to resort to a sub-

stantive prescribed remedy for getting custody of the

child.’

(emphasis supplied via bolding and underlining)

10. In Tejaswini Gaud v Shekhar Jagdish Prasad

Tewari, (2019) 7 SCC 42, it was held:

‘19. Habeas corpus proceedings is not to justify or ex-

amine the legality of the custody. Habeas corpus pro-

ceedings is a medium through which the custody of the

child is addressed to the discretion of the Court. Habeas

corpus is a prerogative writ which is an extraordinary

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remedy and the writ is issued where in the circum-

stances of the particular case, ordinary remedy provided

by the law is either not available or is ineffective; other-

wise a writ will not be issued.

In child custody matters,

the power of the High Court in granting the writ is

qualified only in cases where the detention of a minor

by a person who is not entitled to his legal custody. In

view of the pronouncement on the issue in question by

the Supreme Court and the High Courts, in our view,

in

child custody matters, the writ of habeas corpus is

maintainable where it is proved that the detention of a

minor child by a parent or others was illegal and

without any authority of law.

20. In child custody matters, the ordinary remedy lies

only under the Hindu Minority and Guardianship Act or

the Guardians and Wards Act as the case may be. In

cases arising out of the proceedings under the Guardi-

ans and Wards Act, the jurisdiction of the court is de-

termined by whether the minor ordinarily resides within

the area on which the court exercises such jurisdiction.

There are significant differences between the enquiry

under the Guardians and Wards Act and the exercise

of powers by a writ court which is summary in nature.

What is important is the welfare of the child. In the

writ court, rights are determined only on the basis of af-

fidavits. Where the court is of the view that a detailed

enquiry is required, the court may decline to exercise the

extraordinary jurisdiction and direct the parties to ap-

proach the civil court. It is only in exceptional cases, the

rights of the parties to the custody of the minor will be

determined in exercise of extraordinary jurisdiction on a

petition for habeas corpus.’

(emphasis supplied via bolding and underlining)

11. A coordinate Bench of this Court in G S S Sitara v

State of Bihar, (2022) 3 BLJ 274, while upholding the

maintainability of the petition seeking a writ of habeas corpus by

the petitioner/mother therein, rejected her prayer for grant of

custody of the minor girl child, who was with the

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respondent/father therein. However, that was in the peculiar fact

situation of the case, applying the ‘test of the best interest of the

child and least detrimental alternative’. Another distinguishing

factor in G S S Sitara (supra) was that there was no order of a

Court relating to custody, which exists in the case at hand.

12. After extensive and detailed interactions with the

petitioner, the respondent no.8, the mother of the respondent no.8,

mother-in-law of the respondent no.8 as also the son and daughter

of the petitioner and respondent no.8, present in Court, conscious

of the paramount requirement of taking the best interests and

welfare of the child into consideration, as delineated in the afore-

quoted judgements, we proposed the following interim

arrangement, which was put to the parties and their respective

counsel:

12.1 The parties shall file appropriate

application/petition before the Competent Court with regard to any

variation they may desire relating to custody/visitation rights of

the petitioner and the respondent no.8 with regard to their son and

daughter in accordance with the relevant provisions under The

Hindu Minority and Guardianship Act, 1956, within a period of ten

days from today.

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12.2 On such application/petition being filed, the

Competent Court shall take up and decide the same within two

weeks from the date of filing and if so required, by hearing on

daily basis. The parties undertake to cooperate in the such

proceedings. To ensure that the other side has notice of the

application/petition filed, counsel appearing in this Court shall be

at liberty to serve a copy thereof on the counterpart counsel in this

Court in the current proceedings.

12.3 The Competent Court shall ensure that the

application/petition is decided taking into consideration the law,

best interests of the child, medical opinion (if any) to fashion out a

workable arrangement, such that it bestows finality, as far as

possible, to the dispute. It shall be open to the Competent Court to

take the help of expert(s), if it so deems fit. However, care would

be taken, to the extent possible, to account for the free will of the

girl, before any final order is passed. Needless to state, ultimately

the Competent Court will take an independent view, having regard

to all particulars, depending on the material before it, in

accordance with law.

12.4 Insofar as visitation rights are concerned, the

Competent Court shall bear in mind the dicta of the Hon’ble

Supreme Court in Yashita Sahu v State of Rajasthan, (2020) 3

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SCC 67 and Amyra Dwivedi v Abhinav Dwivedi, (2021) 4 SCC

698.

12.5 The Competent Court will be uninfluenced by the

arrangement noted hereinabove.

13. We are happy to note that the parties, after some

discussions, have agreed to the above. The petitioner and the

respondent no.8 further agree that during the interregnum i.e., the

period till the matter is decided by the Competent Court as

proposed supra, the girl child can reside with the petitioner. This

arrangement is in the factum of the petitioner and her husband

consenting to infra:

13.1 That the petitioner’s husband [namely, Mr. Rohan

Kumar (Resident of Flat No.111, Geetanjali Apartment, Mohalla-

Ilahibagh, PS Bairiya, District- Patna)] will not reside in the house

in which the petitioner is residing, till the time the matter is

decided by the Competent Court;

13.2 That Mr. Rohan Kumar would reside in the

accommodation provided by the company which employs him,

and;

13.3 That Mr. Rohan Kumar will not, in any manner

whatsoever, interact with the girl child during the said period.

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14. We direct the petitioner to permit the respondent

no.8 to interact with the daughter and the petitioner with the son,

every day. We deem it apposite to counsel the petitioner that the

emotional well-being of the girl child should be her priority. The

girl child is at a tender age, and we are confident that henceforth,

the petitioner and respondent no.8 will co-parent her fostering in a

spirit of cooperation and respect.

15. It has been brought to our notice that mid-term

school examination of the girl child is slated to commence from

13.07.2022. The petitioner volunteers that she would take all

measures to ensure that the girl is fully prepared for the

examination.

16. In order to obviate any misgiving with regard to the

treatment meted out to the girl or her comfort at the petitioner’s

place, this Court directs the petitioner and respondent no.8 to give

their mobile numbers to the learned Registrar (Establishment). It

shall be the petitioner’s duty to let the girl child speak to the

learned Registrar (Establishment) at 8:00 AM and 7:00 PM. It is

made clear that if at any other point of time, the learned Registrar

(Establishment) feels that she may be required to personally verify

the status of the girl child, she would communicate this to the

petitioner and respondent no.8, who shall forthwith bring her to a

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place as instructed by the learned Registrar (Establishment).

Depending on her assessment, liberty is granted to the learned

Registrar (Establishment), if she feels the intervention of the Court

is required, to bring the same to the notice of this Court.

17. The respondent no.8 shall hand over the books,

clothes as also the school ID card of the girl child to the petitioner

today itself. The petitioner has undertaken to ensure that the

daughter’s schooling is not impeded in any manner. The petitioner

and respondent no.8 are free to make any mutual arrangement with

regard to conveyance of the girl to the school and back therefrom

on the dates of examination.

18. On the basis of our preceding analysis, we hold that

this writ petition for habeas corpus is maintainable in law, in view

of Nithya Anand Raghavan (supra) and Tejaswini Gaud (supra).

The jurisprudence on this score is well-settled now. Although, as

recorded hereinabove, we have examined the law on the subject, in

view of the instant judgement, particularly the arrangement being

consented to by the petitioner and the respondent no.8, we refrain

from expressing any opinion qua the rival factual contentions on

merits.

19. However, a hint of caution is necessitated. The

parties should be careful not to create any hurdles in the smooth

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operationalisation of the above exercise. We expect no

unnecessary objections/complaints to be raised by either side.

20. Liberty is granted to the parties to approach this

Court, if any urgent modification of the terms agreed supra is

warranted, which shall otherwise operate till the Competent Court

renders a decision.

21. With the directions and observations afore-noted,

this criminal writ petition is disposed of.

(Per: Hon’ble Mr. Justice Purnendu Singh)

22. I had the benefit of going through the erudite

judgment of my learned brother Ahsanuddin Amanullah, J. and I

am in agreement with the observation and operational part of the

order. However, I thought fit to supplement the judgment

according to my view also. I wish to add a few words as the

present writ petition has been filed in the background of the

strained relationship between the husband (respondent no.8) and

the wife (petitioner) which resulted into the divorce by mutual

consent. The petitioner has raised the issue of custody of her

female child aged about 7 years to be handed over to her, who is

said to be in illegal custody of respondent no.8 in violation of the

terms of divorce by mutual consent. She has not made any

allegation that if the child continues to remain in the custody of

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father the same will afflict her mental, moral, educational and

general welfare. The role of the High Court in such cases in

examining the cases of custody of a minor is on the touchstone of

principle of parens patriae jurisdiction, as the minor is within the

jurisdiction of the Court.

23. The law relating to custody of minors has been

exhaustively considered by the Hon’ble Supreme Court in catena

of decisions and it would be useful to briefly refer to law

applicable in custody of child while dealing with this kind of

sensitive and delicate issue.

24. The Hon’ble Supreme Court in Mrs. Elizabeth

Dinshaw v. Arvand M. Dinshaw and Anr., AIR 1987 SC 3, it

was held that whenever a question arises before a Court pertaining

to the custody of a minor child, the matter is to be decided not on

consideration of the legal rights of the parties but on the sole and

predominant criteria of what would best serve the interest and

welfare of the minor.

25. In Syed Saleemuddin v. Dr. Rukhsana, 2001 (5)

SCC 247 affirming the principle held that in an application for

seeking 'habeas corpus' for custody of minor child, the court is to

ascertain whether the custody of the children can be said to be

unlawful or illegal and whether the welfare of the children requires

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that present custody should be changed and the children should be

left in care and custody of somebody else. The Apex Court

reiterated the principle that in a matter of custody of a child, the

welfare of child is of paramount consideration of the Court.

26. In Howarth v. Northcott, 152 Conn 460 , following

observations were made:-

"In habeas corpus proceedings to

determine child custody, the jurisdiction

exercise by the Court rests in such cases on

its inherent equitable powers and exerts the

force of the State, as parens patrie, for the

protection of its infant ward, and the very

nature and scope of the inquiry and the

result sought to be accomplished call for the

exercise of the jurisdiction of a court of

equity.” (emphasis supplied)

It was further observed;

“The employment of the forms of habeas corpus

in a child custody case is not for the purpose of

testing the legality of a confinement or restraint as

contemplated by the ancient common law writ, or

by statute, but the primary purpose is to furnish a

means by which the court, in the exercise of its

judicial discretion, may determine what is best for

the welfare of the child, and the decision is

reached by a consideration of the equities

involved in the welfare of the child, against which

the legal rights of no one, including the parents,

are allowed to militate. It was also indicated that

ordinarily, the basis for issuance of a writ of

habeas corpus is an illegal detention; but in the

case of such a writ sued out for the detention of a

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child, the law is concerned not so much with the

illegality of the detention as with the welfare of

the child.”

27. In this regard, it would be important to reproduce

the observation made by the Apex Court in Mausami Moita

Ganguli V. Jayant Ganguli, (2008)7 SCC 673 in paragraph nos.

19 to 21 and 23 to 26:

“19. The principle 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 should be

committed, the first and the paramount

consideration is the welfare and interest of the

child and not the rights of the parents under a

statute. Indubitably, the provisions of the law

pertaining to the custody of a child contained in

either the Guardians and Wards Act, 1890(Section

17) or the Hindu Minority and Guardianship Act,

1956 (Section 13) also hold out the welfare of the

child as a predominant consideration. In fact, no

statute, on the subject, can ignore, eschew or

obliterate the vital factor of the welfare of the

minor.”

“20. The question of welfare of the minor child

has again to be considered in the background of

the relevant facts and circumstances. Each case

has to be decided on its own facts and other

decided cases can hardly serve as binding

precedents in so far as the factual aspects of the

case are concerned. It is, no doubt, true that father

is presumed by the statues to be better suited to

look after the welfare of the child, being normally

the working member and head of the family, yet in

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each case the court has to see primarily to the

welfare of the child in determining the question of

his or her custody. Better financial resources of

either of the parents or their love for the child may

be one relevant considerations but cannot be the

sole determining factor for the custody of the

child. It is here that a heavy duty is cast on the

court to exercise its judicial discretion judiciously

in the background of all the relevant facts and

circumstance, bearing in mind the welfare of the

child as the paramount consideration.”

21. In Rosy Jacob v. Jacob A. Chakramakkal

reported in (1973) 1 SCC 840, a three-Judge

Bench of this Court in a rather curt language had

observed that the controlling factor governing the

custody of the child would be its welfare and not

the rights of the parent:

“15. ... The children are not mere chattels: nor are

they mere playthings for their parents. Absolute

right of the parents over the destinies and the

lives of their children has, in the modern changed

social conditions, yielded to the considerations of

their welfare as human being so that they may

grow up in a normal balanced manner to be useful

members of the society and the guardian court in

case of a dispute between the mother and the

father, is expected to strike a just and proper

balance between the requirements of welfare of

the minor children and the rights of their

respective parents over them.”

“23. Having bestowed our anxious consideration

to the material on record and the observation

made by the courts below, we are of the view that

in the present case there is no ground to upset the

judgment and order of the High Court. There is

nothing on record to suggest that the welfare of

the child is in any way in peril in the hands of the

father. In our opinion, the stability and security of

the child is also essential ingredient for a full

development of child’s talent and personality. As

noted above, the appellant is a teacher, now

employed in a school at Panipat, where she had

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shifted from Chandigarh some time back. Earlier,

she was teaching in some school at Calcutta.

Admittedly, she is living alone. Except for a very

short duration when he was with the appellant,

Master Satyajeet has been living and studying in

Allahabad in a good school and is stated to have

his small group of friends there. At Panipat, it

would be an entirely new environment for him as

compared to Allahabad.”

“25. It is also significant to note that during the

course of hearing on one of the dates, when we

had not yet interviewed Satyajeet, we had

suggested that it would be better if the child could

stay with his mother for some more time.

However, upon hearing us, he started crying and

whining and, showed reluctance to go with the

mother.”

Watching his reaction, we dropped the proposal.

“26. Under these circumstances and bearing in

mind the paramount consideration of the welfare

of the child, we are convinced that the child’s

interest and welfare will be best served if he

continues to be in the custody of the father, In our

opinion, for the present, it is not desirable to

disturb the custody of master Satyajeet and ,

therefore, the order of the High Court giving his

exclusive custody to the father with visitation

rights to the mother deserves to be maintained.

We feel that the visitation rights to the appellant

by the High Court, as noted above, also do not

require any modification.”

We, therefore, affirm the order and the afore-

extracted direction given by the High Court. It

will, however, be open to the parties to move this

Court for modification of this order or for seeking

any direction regarding the custody and well-

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being of the child, if there is any change in the

circumstances.”

28. In the case of Gaurav Nagpal v. Sumedha

Nagpal, (2009) 1 SCC 42, where the matter had gone in respect

of a decision of the District Judge passed in favour of wife-

respondent for custody of the child under Hindu Minority and

Guardianship Act, 1956, read with Section 25 of the Guardian

and Wards Act, 1890.

The conclusions in paragraph 50, 51 and 52 are

reproduced as under:-

"50. When the Court is confronted with

conflicting demands made by the parents, each

time it has to justify the demands. The Court has

not only to look at the issue on legalistic basis, in

such matters human angles are relevant for

deciding those issues. The Court then does not

give emphasis on what the parties say, it has to

exercise a jurisdiction which is aimed at the

welfare of the minor.

As observed in Mausami Moitra Ganguli case, the

court has to give due weightage to the child's ordinary

contentment, health, education, intellectual development and

favourable surroundings but over and above physical comforts,

the moral and ethical values have also to be noted. They are

equal if not more important than the others.

“51. The word "welfare" used in section 13 of the

Act has to be construed literally and must be taken

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in its widest sense. The moral and ethical welfare

of the child must also weigh with the Court as

well as its physical well being. Though the

provisions of the special statutes which govern the

rights of the parents or guardians may be taken

into consideration, there is nothing which can

stand in the way of the Court exercising its

parents patriae jurisdiction arising in such cases."

The following observations by the Hon'ble Supreme

Court in para 52 of the judgment are quite relevant:-

"52. The trump card in the appellant's argument is

that the child is living since long with the father.

The argument is attractive. But the same

overlooks a very significant factor. By flouting

various orders, leading even to initiation of

contempt proceedings, the appellant has managed

to keep custody of the child. He cannot be

beneficiary of his own wrongs. The High Court

has referred to these aspects in details in the

impugned judgments. "

29. Recently the Hon’ble Supreme Court while

considering the custodial controversies in Yahita Sahu v. State

of Rajasthan and Others, (2020) 3 SCC 67, has carefully taken

the psychological impact of divorce on the child and the child is

taken from one parent and given custody to the other and denied

visitation rights or contact with the child. The welfare of the

minor to be of paramount consideration, the parent should reach

to an agreement so that the child can live in an environment

reasonably conducive to child’s development. In this regard

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observations made in Paragraph nos. 20, 21, 24 and 25 are as

under:

“20. It is well settled law by a catena of judgments that

while deciding matters of custody of a child, primary and

paramount consideration is welfare of the child. If welfare

of the child so demands then technical objections cannot

come in the way. However, while deciding the welfare of

the child, it is not the view of one spouse alone which has

to be taken into consideration. The courts should decide

the issue of custody only on the basis of what is in the best

interest of the child.”

“21. The child is the victim in custody battles. In this fight

of egos and increasing acrimonious battles and litigations

between two spouses, our experience shows that more

often than not, the parents who otherwise love their child,

present a picture as if the other spouse is a villain and he

or she alone is entitled to the custody of the child. The

court must therefore be very wary of what is said by each

of the spouses.”

“24. Normally, if the parents are living in the same town

or area, the spouse who has not been granted custody is

given visitation rights over weekends only. In case the

spouses are living at a distance from each other, it may not

be feasible or in the interest of the child to create

impediments in the education of the child by frequent

breaks and, in such cases the visitation rights must be

given over long weekends, breaks, and holidays. In cases

like the present one where the parents are in two different

continents effort should be made to give maximum

visitation rights to the parent who is denied custody.”

“25. In addition to ‘Visitation Rights’, ‘Contact rights’ are

also important for development of the child specially in

cases where both parents live in different states or

countries. The concept of contact rights in the modern age

would be contact by telephone, email or in fact, we feel

the best system of contact, if available between the parties

should be video calling. With the increasing availability of

internet, video calling is now very common and courts

dealing with the issue of custody of children must ensure

that the parent who is denied custody of the child should

be able to talk to her/his child as often as possible. Unless

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there are special circumstances to take a different view, the

parent who is denied custody of the child should have the

right to talk to his/her child for 510 minutes everyday. This

will help in maintaining and improving the bond between

the child and the parent who is denied custody. If that

bond is maintained the child will have no difficulty in

moving from one home to another during vacations or

holidays. The purpose of this is, if we cannot provide one

happy home with two parents to the child then let the child

have the benefit of two happy homes with one parent

each.”

30. A co-ordinate Bench of this Court in Smt. G.S.S.

Sitara Vs. State of Bihar & Ors., 2022 (3) BLJ 274 has also

after exhaustively dealing with the peculiar facts of the said case

has held that it is not the statutory provision which would bind the

court under all circumstances to hand over the custody of the

minor child. The Court is required to settle the right giving way to

the background consideration of the welfare of the child on the

touchstone of principle of parens patriae jurisdiction as the

minor is within the jurisdiction of the Court.

31. In the present case as per the mutually consented

divorce filed on 24.01.2020 vide Matrimonial Case no. 107 of

2020 in which order was passed on 23

rd

November, 2020, as per

the mutually agreed terms, the court allowed the petitioner to

have the custody of the minor girl child and Respondent No.8 was

to have the Custody of the minor boy and both the children would

be allowed to meet each other by an arrangement between the

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parties. Under the divorce order, the Respondent No. 8 was

ordered to pay an alimony of Rupees 11 Lakhs for the

maintenance and welfare of the petitioner and the minor girl

child. He was also ordered to make an FD of Rs. 5 Lakhs in the

name of his minor daughter, Bani Saluja to the Petitioner, which

was duly complied by the Respondent No.8, a reference has been

with regard to same in Para 8 of the divorce order.

32. On careful consideration of the facts of the case,

it would appear that as per the terms of the agreement order, the

son visited the house of the petitioner on 10.01.2022 and the very

next day i.e on 11.01.2022, both the son and the daughter returned

back to the house of Respondent No.8. The Petitioner has alleged

that the Respondent No.8 by not returning her daughter has

deliberately violated the terms and conditions of the order dated

23.11.2020 and had allegedly threatened her.

33. It is the case of the petitioner that, upon being

aggrieved by the unwarranted action of Respondent No.8,

Petitioner tried to lodge case in Pirbahore police station for illegal

confinement of her daughter but Respondent No.6 refused to

lodge the case and instead threatened her and her present

husband, Rohan Kumar of filing a false case under POCSO Act

for harassing their minor girl child.

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34. Dismayed, the Petitioner went to Mahila PS

Gardanibagh, Patna and submitted hand written application on

16.01.2022. Thereafter, a legal notice was sent to respondent No.8

on 17.01.2022, on behalf of the petitioner, wherein the

Respondent No.8 was asked to hand over the custody of the child

within seven days of the notice. Petitioner filed application of

same fact to (1) DGP , Bihar, (2) IG Patna Zone, (3) Sr. SP, Patna,

(4) Dy. SP Town, Patna (5) SHO, Mahila P.S. Patna, (6) SHO,

Pirbahore, Patna, (7) SHO, Gopalpur PS Patna by speed post

dated 23.01.2022 and 29.01.2022. But when no action was taken,

the Petitioner filed the writ of Habeas Corpus to get the custody

of her minor girl child, Bani Saluja from Respondent No.8.

35. While deciding the matter of interest of a child as

observed by the Apex Court, primary and paramount

consideration is welfare of the child. If welfare of the child so

demands, then technical objections cannot come in the way.

However while deciding the welfare of the child it is not the view

of one parent which has to be taken into consideration. The issue

has to be decided only on the basis of what is in the best interest

of the child. In the present case, I have found that the

petitioner and Respondent No.8 had filed a joint petition of

mutual divorce on 24.01.2020 and the petitioner just after

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seven days of passing of judgment dated 23.11.2020 and

before preparation of decree dated 02.12.2020 married to one

Mr. Rohan Kumar on 30.11.2020. (emphasis supplied).

Thereafter, out of her second husband on 07.12.2021, she was

blessed with a male child and during this period i.e till

07.12.2021, for almost a year, she never claimed the custody of

the child and terms and conditions of mutually consented divorce

order ever violated. The conduct of the petitioner shows that she

was not concerned in any manner with her daughter or son whose

biological father is Respondent No.8 or she had ever complained

or has pleaded in the writ petition that the child was not taken

care by him.

36. The eldest son of the petitioner had visited her

house on 10.11.2022 and he had returned along with her sister

back to his home along with their father, the respondent no.8 in

terms of the agreement. The allegation is that the respondent no.8

did not return back girl child in terms of the agreement on the

very next day i.e. 12.01.2022 and as such violated the terms and

conditions of divorce with mutual consent.

37. From the pleadings made in the present writ

petition, the question of custody of child is being claimed for

violation of terms of agreement of mutual divorce. The petitioner

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nowhere has alleged that due care of child is not taken care of by

her father i.e. Respondent No.8 and the same to be prejudicial to

the welfare of the child. In course of hearing, respondent no. 8

stated that he earns sufficient income and is also ready to bear the

cost of the two child, even if, they are admitted in boarding

school. The child was produced before the Court and she was

found hale and hearty. Respondent No.8 informed that she is

studying in Saint Xavier’s, Patna which is a school of good

repute.

38. It is also significant to note that during the course

of hearing on one of the dates, the child was found in a fit mental

and physical condition. She made no complaints whatsoever

against Respondent No.8 or his family members and seems rather

happy in the company of her brother and her demeanour did not

show any signs of fear, compulsion, threat or ill treatment.

39. However, the child did raise her concerns with

the conduct of Rohan Kumar and recounts being slapped by him.

This raises apprehensions with regard to conduct of the husband

of the petitioner and the effect it may cast on the tender and

susceptible mind of the girl child if they are to live together under

the same roof.

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40. The petitioner has an infant who requires the

mothers undivided care and attention almost throughout the day

has now shown her affection for the daughter and wants her

custody. It is informed by the respondent no.8 that his daughter is

to take her examination from 13.07.2022. In such circumstances,

interviewing child would not be wise, especially when

circumstance of case may not be able to give positive point of

view from above matrix of facts and situations.

41. However, now the petitioner has also shown her

affection towards the child and seeks her custody and has

voluntary desired that she will keep her second husband Rohan

Kumar away from the child for any period fixed by this Court and

ensures her second husband will not remain in the house.

42. In terms of Section 6 of The Hindu Minority and

Guardianship Act,1956, after the child attains age of 5 years, the

father becomes natural guardian of the child as well as minor

property and do not include step-father and step-mother. Sections

6 is reproduced as under:

“6. Natural guardians of a Hindu minor.-- The natural

guardians of a Hindu minor; in respect of the minor's

person as well as in respect of the minor's property

(excluding his or her undivided interest in joint family

property), are--

(a) in the case of a boy or an unmarried girl--the father,

and after him, the mother:

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Provided that the custody of a minor who has not

completed the age of five years shall ordinarily be with the

mother;

(b) in the case of an illegitimate boy or an illegitimate

unmarried girl--the mother, and after her, the father;

(c) in the case of a married girl--the husband:

Provided that no person shall be entitled to act as the

natural guardian of a minor under the provisions of this

section--

(a) if he has ceased to be a Hindu,

or

(b) if he has completely and finally renounced the world

by becoming a hermit (vanaprastha) or an ascetic (yati or

sanyasi).

Explanation.--In this section, the expressions "father" and

"mother" do not include a step-father and a step-mother."

This would be required to be read with Section 13

of the Act of 1956 which reads as under:-

“13. Welfare of minor to be paramount

consideration-(1) in the appointment or declaration

of any person as guardian of a Hindu minor by a

court, the welfare of the minors shall be the

paramount consideration.

(2) No person shall be entitled to the guardianship by

virtue of the provisions of this Act or of any law

relating to guardianship in marriage among Hindus,

if the court is of the opinion that his or her

guardianship will not be for the welfare of the

minor."

43. It is important for better appreciation to see the

provision laid down under Section 17 of the Guardians and Wards

Act, 1890 and the same is extracted hereunder:

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“17. Matters to be considered by the Court in

appointing guardian.--(1) In appointing or declaring the

guardian of a minor, the Court shall, subject to the

provisions of this section, be guided by what, consistently

with the law to which the minor is subject, appears in the

circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the

minor, the Court shall have regard to the age, sex and

religion of the minor, the character and capacity of the

proposed guardian and his nearness of kin to the minor,

the wishes, if any, of a deceased parent, and any existing

or previous relations of the proposed guardian with the

minor or his property.

(3) If minor is old enough to form an intelligent

preference, the Court may consider that preference.

(4) [***]

(5) The Court shall not appoint or declare any person to be

a guardian against his will.

According to the said provision, the welfare of the

minor should be considered as paramount consideration.

44. In section 13, the word ‘welfare’ has to be

construed literally and taken in its widest sense as per the

mandate of laws laid down by the Apex Court in Gaurav Nagpal

Vs. Sumedha Nagpal, (2009) 1 SCC 42, the moral and ethical

welfare of child must also weigh along with physical well being.

45. Without going into the merits of the case and

conscious of the paramount requirement of taking the best

interest and welfare of the child into consideration, as delineated

in the afore-quoted judgments, and also bearing in mind the dicta

of the Hon’ble Supreme Court in Mausami Moitra Ganguli v.

Jayant Ganguli, (2008) 7 SCC 673, wherein it was held that it is

the welfare and interest of the child and not the rights of the

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parents which is the determining factor for deciding the question

of custody. The question of welfare of the child has to be

considered in the context of the facts of each case and decided

cases on the issue may not be appropriate to be considered as

binding precedents. (emphasis supplied).

46. In view of the above discussions made, I am of

the view that the best interest of the child is to have the parental

care of both the parents, but in the present case, the parents are

separated with each other and the innocent child is being dragged

into the midst of the custody battles. The child has to bear the

burnt of parental disharmony affecting the overall development

of the child. It seems to be not possible to provide complete

peaceful environment to the child. In such cases, the role of the

Court becomes parens patriae and it has to decide what is the

best interest for the welfare of the child after judging pros and

cons of both the respective parents who claims custody of the

child.

47. With aforesaid consideration and view of mine, I

am in agreement with my brother Ahsanuddin Amanullah, J.,

with the arrangements made during the interregnum period i.e till

the matter is decided by the competent Court.

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48. While parting with this judgment, I would record

that the observations made in this judgment are only for the

purpose of this case and no part of it shall be taken as a finding of

this Court in a proceeding of guardianship before a competent

court of law.

Anand Kr.

(Ahsanuddin Amanullah, J)

(Purnendu Singh, J)

AFR/NAFR AFR

U

T