HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 74 Case :- HABEAS CORPUS WRIT PETITION No. - 389 of 2020 Petitioner :- Master Aryan And Another Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Shams Uz Zaman Counsel for Respondent :- G.A.,Pankaj Bharti Hon'ble J.J. Munir,J.
Master Aryan and Master Chetan are two young boys, who have lost their father to a crime. Their deceased father, the late Pramod Kumar, was murdered. The boys' misfortune was worsened, as their mother, Sonia, was arrested as a co-accused in the crime, along with Pramod, son of Rajbira and Mahbood, son of Yusuf Ansari. She was arrested and sent to jail, on 05.09.2019. She was admitted to bail by this Court and released from prison, on 13.02.2020. During the period of her incarceration, the two boys were taken away by respondent nos. 4 to 11, who are their late father's family members. Once Sonia emerged from jail, she demanded her children's custody, which respondent nos. 4 to 11 denied. Sonia, who is the mother and the natural guardian of Master Aryan and Master Chetan, has instituted this petition for a writ of habeas corpus, asking this Court to order respondent nos. 4 to 11 to produce her sons and to set them at liberty, in the manner that they be entrusted to her custody.
2. This petition was admitted to hearing on 28.08.2020, and a rule nisi was issued to respondent nos. 4 to 11, ordering the Superintendent of Police to cause the two boys, who were in custody of respondent nos. 4 to 11, to be produced before this Court on 02.09.2020. On the date of return, Aryan and Chetan were produced before the Court. Respondent nos. 5 and 9 alone put in appearance through Mr. Pankaj Bharti, Advocate. The Court interacted with the elder of the two children, Chetan, in order to ascertain his wishes about his choice of the person he would like to be with. The Court not only ascertained his wishes, but also recorded impressions about the expression of choice by Chetan, in the order dated 02.09.2020. It would be alluded to in some detail later in this judgment.
3. The matter was adjourned for further hearing to 02.09.2020 and in the meantime, Mr. Pankaj Bharti was granted time to file a counter affidavit. The matter came up again on 24.09.2020, when a counter affidavit was filed on behalf of respondent no. 5, acting for himself and for respondent no. 9. The case was adjourned for further hearing to 08.10.2020. On 08.10.2020, learned counsel appearing for the parties concluded their submissions and judgment was reserved.
4. The short case of the petitioner, Sonia, is that being the minors' mother, she is their natural guardian, who has a right to their custody, by virtue of Section 6(a) of The Hindu Minority and Guardianship Act, 19561 as also the well settled principles that regard the minor's welfare best secured in the hands of the mother. It is her case that the respondents, including respondent nos. 5 and 9 are relatives of the minors' father, who is no more. They have no right or authority to deprive the mother of her minor children's custody. Refusal by the private respondents to hand over custody of the petitioner's minor children to her constitutes unlawful detention, and they ought to be liberated from that custody, entrusting them to her care. In the return filed on behalf of respondent nos. 5 and 9, it is made out that Sonia, the minor's mother, is an accused in her husband's murder. It is asserted that Pramod Kumar was done to death in consequence of a conspiracy hatched by Sonia, with her paramour, one Pramod son of Rajbira and another Mahbood, son of Yusuf Ansari. A First Information Report of the incident was lodged by Mukesh, respondent no. 5, against Pramod, Sonia and an unknown offender, on 03.09.2019, giving rise to Case Crime No. 343 of 2019, under Sections 302, 201, 120B Indian Penal Code, Police Station - Kandhala, District - Shamli. Sonia was arrested on 05.09.2019, in connection with the said crime. The two minor children have been living with respondent nos. 4 to 11, since their mother's arrest. Sonia was released on bail vide order dated 13.02.2020 passed by this Court in Criminal Misc. Bail Application No. 6545 of 2020. Post-investigation, a charge-sheet has been submitted against Sonia, as also co-accused Pramod and Mahbood. All the three accused, including Sonia, are facing trial on the charge of murdering Pramod vide Sessions Trial No. 14 of 2020. It is pointed out that of respondent nos. 4 to 11, respondent no. 4 has passed away. The other respondents are uncles and cousins of the minors. Aryan is aged about five years, whereas Chetan is seven years old. Both of them are pursuing studies in the Mother India Model Junior High School, Kairana, Shamli. It is said that both Chetan and Aryan are staying with respondent nos. 4 to 11 of their volition, and are not inclined to go to their mother, Sonia. It is also asserted that Sonia wants to hold the children in her custody, contrary to their wishes, in order to tamper with evidence relating to her husband's murder, by pressurizing witnesses. It is urged that the minors' welfare is not at all secure in their mother's hands, in view of the circumstances here.
5. Heard Mr. Shams Uz Zaman, learned counsel for the petitioners, Mr. Pankaj Bharti, learned counsel for the respondent nos. 5 and 9, and Mr. J.P. Tripathi, learned counsel for the State.
6. Normally, minors, particularly young children, ought to be with their mothers, as it is the mother in whose hands a child's welfare is best secured. It is a salutary principle that in deciding about a minor's custody or his/her guardianship, the welfare of the minor is of paramount consideration. This principle is embodied under Section 17 of The Guardians and Wards Act, 18902 and elsewhere too. Section 6(a) of the Act of 1956 reads thus :
"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: 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 stepfather and a step-mother."
7. Now, Section 6(a) indeed makes the mother a natural guardian, along with the father. After the decision in Githa Hariharan (Ms) and another v. Reserve Bank of India and Another3, the father and the mother, as natural guardians, stand at par, with no preference to the father. By virtue of the proviso to Section 6(a) of the Act of 1956, custody of children up to the age of five years is envisaged ordinarily to be with the mother. It is not that the age of five is a mathematically precise calibration, after which the child's welfare may be judged free from the principle carried in the proviso to Section 6(a). The principle that animates the proviso last mentioned is that the welfare of a young child is best secured in the mother's hands. In the opinion of this Court, that preference about welfare would not abruptly come to an end at the age of five, as if it were a statutory cut-off. The principle there would continue to apply, so long as the minor is of tender years. At the same time, what cannot be lost sight of is the fact that the provisions of Section 6(a) regard the mother's pre-eminence to hold custody of a young child, ordinarily. The word "ordinarily" has much significance. It takes into account the circumstances that could be emergent in a case where the mother might be disqualified to hold a child's custody. There could be cases where the minor's welfare may not be best secured in the mother's hand. Of course, those disentitling circumstances would have to be clearly pleaded and undisputedly proved. These could be, the mother being physically or mentally incapacitated, or demonstrably living in circumstances where the children's welfare - physical, mental and psychological, would not be secure, or accused of a crime involving moral turpitude, that would impact the minor's welfare. These situations are only illustrative and there could be many more. In Nil Ratan Kundu and Another v. Abhijit Kundu4, the facts show that the father claimed the minor's custody from his grandfather and grandmother (both maternal). Like the case here, the father was an accused in the case relating to his wife's dowry death. The father's involvement in the crime concerning his wife's dowry death was recorded by their Lordships of the Supreme Court as a very important factor to be considered by the court, while judging the issue about the minor's welfare. The Court held the fact about the involvement of a natural guardian, in a criminal case relating to his spouse's death, to be a factor going much against him, while deciding the question about the minor's welfare. In this regard, it was held in Nil Ratan Kundu (supra) thus :
62. Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh)absconded and Antariksh was found sick from the house of Abhijit.
63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the "character" of the proposed guardian. In Kirtikumar[(1992) 3 SCC 573 : 1992 SCC (Cri) 778] , this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle.
64. Thus, a complaint against the father alleging and attributing the death of the mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person. To us, it is no answer to state that in case the father is convicted, it is open to the maternal grandparents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and an appropriate order ought to have been passed.
8. I had occasion to consider this question in Shaurya Gautam and Another v. State of U.P. and Others5, which was a case of a father accused of his wife's murder, demanding his children's custody from maternal grandmother. The elder of the two children had expressed his disinclination to go back to his father, or stay with him. In Shaurya Gautam (supra) I held :
16. This Court has looked into the allegations in the First Information Report, which shows that the father is facing trial on a charge of murder of his wife. The First Information Report indicates that his wife had called her mother on 17.09.2017 that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near Jalesar Road, portraying it as an accident. At least, that is the case in the First Information Report. The postmortem report shows crush injuries, from the skull to the upper abdomen. Awadhesh Gautam has said in the petition that his wife met an unnatural death, due to accidental burn injuries. This does appear to be the case.
17. This Court does not consider it appropriate to say anything more about the issue. Whatever has been remarked hereinabove, is only to fathom the nature of the allegations against Awadhesh Gautam. It is, in no way, an expression of opinion about the criminal charges against him. The totality of the circumstances on record show that unless acquitted, it would not be appropriate to place the two minor children in their father's custody. ..........
9. A similar view was taken by the Bombay High Court in Angelina Miranda Minor Child, Rajan Chawla v. Lisbon John Miranda6 where it was held :
28. My attention has been drawn to the judgment of the Supreme Court in the case of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 : AIR 2009 Supp SC 732 and in the case of Bimla Devi v. Subhas Chandra Yadav ''Nirala', AIR 1992 Pat 76 in which also Upon the unnatural death of the mother and the father facing the charge under section 498-A the Court preferred the child to remain with the maternal uncle to the father. Upon seeing the wishes of the children in that case, the Supreme Court held that the moral and ethical values were even more important and essential considerations over physical comforts. Consequently, in this case the father would be a wholly unfit guardian at least before he is acquitted of the charge against him and since the aunt has filed the petition only at the instance of the father she would not be clothed with the required essential fitness to be the guardian.
10. It is true that the involvement of a spouse in the homicidal death of the other is a matter that has serious bearing on the issue, whether the child's custody could be entrusted to the accused parent, so long as his/her guilt or innocence is not determined. Generally, it does not augur well for the child's welfare, to be placed in the custody of a parent, whose fitness to cater to his welfare is seriously in doubt, unless acquitted. Here, it is true that the charge against the wife is one of conspiracy, but true or not, she is accused of her husband's murder, along with a paramour. If the charge were true, the mother would not be an ideal person to groom the young children, whose welfare not only requires fulfillment of their physical needs, but many other things, which includes their moral character. That apart, the circumstances which faintly appear in this case about the crime, and which this Court does not wish to know or probe in greater detail, suggest that if the charge were true, the minors' safety might also be compromised.
11. Here, this Court must refer to the interaction that we had with the minors. The elder of them, Chetan, who is seven-years-old, expressed his mind to the Court. He appears to be a bright and intelligent child, capable of clearly expressing his mind and preference. He expressed his dislike for his mother and said that he wishes to stay with his aunt and uncle (respondent nos. 5 and 9). He has said a few things about his mother, which did not appear to come from him spontaneously. He has expressed his feelings of animosity and dislike for his mother, that are traceable to tutoring by his uncle and aunt (respondent nos. 5 and 9). On being asked why he disliked his mother, he candidly told the Court that he was informed about it all by his uncle and aunt (respondent nos. 5 and 9). Whatever Chetan told the Court, appears to be heavily under the influence of respondent nos. 5 and 9, who are his kindred, but this is one facet of the matter. For the present, the mother, indeed, faces a charge about her husband's murder, in relation to which, she is facing trial. There is a possibility, remote or not so remote, that she might be convicted and sentenced on the charge relating to her husband's and the minors' father's murder. If that were to happen, while the minors are staying with her, it would cause great trauma to the minors, to know that their mother, with whom they have bonded and are living, stands convicted of the father's murder. Of course, this is not so much to suggest or believe, so far as this Court is concerned, that the mother is guilty. All that this Court says, bears in mind the minors' welfare, if the contingency above mentioned were to come true. It is certainly a situation which ought to be avoided at the cost of depriving the minors of their mother's care and custody. Of course, if the mother is acquitted, it would be open to her to apply to the court of competent jurisdiction, asking for her sons' custody, and if in that contingency, the mother does apply, the court, exercising jurisdiction under the Act of 1890, would decide her claim about the minors' custody, consistent with their welfare, but unaffected by anything said in this order.
12. Subject to what has been said above, this Court does not find any good ground to make the rule nisi absolute. It is, accordingly, discharged.
13. In the result, this petition fails and stands dismissed.
Order Date :- March the 1st, 2021 I. Batabyal