Master Devansh Agarwal(Detenue) ... vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 11471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 31
 
Case :- HABEAS CORPUS No. - 9307 of 2020
 
Petitioner :- Master Devansh Agarwal(Detenue) Thru. Deepti Goel & Another
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home. Lko & Others
 
Counsel for Petitioner :- Arun Sinha,Siddhartha Sinha
 
Counsel for Respondent :- Sri Anurag Singh Chauhan (Govt. Advocate), Deepak Agarwal,Gavrav Mishra,Lalit Mohan Singh,Mr. Nirmit Srivastav,Mr. Prabhjit Jauhari,R.P. Shukla,Vivek Sonkar
 

 
Hon'ble Vikas Kunvar Srivastav,J.

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 B-47, 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:-

(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.

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/detenue' respectively.

7. At the time of incident the child detenue (petitioner no.1) was an infant of about 1 year and 9 months' age. The mother has stated that the detenue child is dependent on mother's milk and needs such care and protection which father cannot provide. She is highly educated lady, qualified in M.B.A. Finance and Human Resources, had worked as Assistant Professor in B.B.D. University at Lucknow but quit her job to take care of her child. She has been taking care of her child financially or otherwise since his birth and petitioner no.1, the detenue has never been parted from the petitioner no.2. She has a constant source of income being generated from her savings and residing with her parents in their own house at Lucknow. In support of her claim as to the financial competence, the petitioner no.2 has filed Income Tax Return of year 2019-20 issued by the Income Tax Department as Annexure-2, wherein the gross income is shown Rs.5,16,328/-. In the night of 6.6.2020, the opposite party no.3 landed at the house of the petitioner no.2 and virtually snatched away and kidnapped the child in the morning of 7.6.2020 pretending to come back after a short drive with the child.

8. The petition was filed on 15.6.2020 and was first taken up on 18.6.2020. On 13.7.2020, this court has observed, relevant portion of the order is extracted and reproduced hereunder:-

"Hon'ble Virendra Kumar Srivastava, J.

Learned counsel for the petitioner submits that detenue aged about two years has been illegally snatched from the custody of petitioner no.2 and herculean effort was made by the concerned police to trace out the detenue but since the opposite party nos.3 and 4 are residents of Jharkhand State, the concerned local police is not cooperating with the U.P. Police in absence of any specific direction of this Court.

Learned AGA submits that effort was made to search out the detenue but the detenue could not be traced out.

In view of the above, issue notice to opposite party nos.3 to 6 through opposite party no. 2 i.e. Station House Officer, Police Station Aliganj, Lucknow to produce the detenue Master Devansh on 05.08.2020."

9. Again on 5.8.2020, the court has observed, relevant portion is extracted and reproduced hereunder:-

"Hon'ble Abdul Moin,J.

Sri R.P. Shukla, learned counsel for respondent nos. 3 to 6, submits that in pursuance to the order of this Court dated 13.07.2020, the child Master Devansh Agarwal could not be produced today as he is not well. A copy of the medical prescription dated 03.08.2020 has been produced today in Court. Sri Shukla prays for and is granted a week's time for bringing on record the said medical prescription and he would also indicate the medical condition of the child. The medical condition to be indicated on behalf of respondent nos. 3 to 6 would also indicate the medical certificate from a doctor as to whether the child is fit to travel from Jharkhand to Lucknow and in case the certificate does not indicate so then the child shall be produced before this Court on 14.08.2020."

10. The order dated 5.8.2020 of this court recorded the appearance of the opposite parties no. 3 to 6 for the first time through Sri R.P. Shukla and Gaurav Mishra Advocates with filing of the counter affidavit on their behalf.

11. On 20.1.2021, this court has passed following order:-

"Hon'ble Alok Mathur,J.

1. Heard Sri Siddhartha Sinha, learned counsel for the petitioners as well as learned A.G.A. for the State while Sri Vivek Sonkar, Advocate has put in appearance on behalf of opposite party No.s 3 to 6.

2. An application for recall of order dated 11.1.2021 along with vakalatnama has been filed in the registry by Sri Vivek Sonkar on 19.11.2020. Office has reported that it has not been able to trace any such application for recall of order dated 11.1.2021. In absence of the application for recall, I proceed with the matter.

3. It has been submitted by Sri Siddhartha Sinha that this Court by means of order dated 17.3.2020 had directed opposite party No.s 3 and 6 to produce the detenue Master Devansh Agrawal on 5.8.2020. A perusal of the order sheet dated 5.8.2020 indicates that on 5.8.2020 the detenue could not be produced and, therefore, by means of the order dated 5.8.2020 this Court directed for production of the detenue on 14.8.2020. It has been submitted that there was no sitting of this Court on the said date due to COVID 19 lock-down, therefore, this Court by means of order dated 27.8.2020 directed the detenue to be produced on 8.9.2020, on which date also there was no Court sitting due to the pandemic. It has been submitted that in the meanwhile opposite party No.2 in order to avoid producing the detenue moved an application for recall of the order dated 27.8.2020 which was rejected on 14.10.2020. Subsequently, on 11.1.2021 this Court directed for production of the detenue today i.e. 20.1.2021.

4. When the matter has been taken up Sri Vivek Sonkar, the new counsel appearing for opposite parties No.3 to 6, could not show any cogent reason for non-appearance of the detenue as directed by this Court vide its order dated 20.1.2021 today. He, however, submits that opposite party No.3 is in Jharkhand and they will appear on any date fixed by this Court. It has also been informed that as per direction of this Court a sum of Rs.30,000/- has already been deposited in this Court to show the bonafide and also to enable opposite party No.3 along with the detenue to appear before this Court.

5. In view of above, I see no reason as to why opposite party No.3 is not appearing before this Court along with the detenue. As, such, list this case on 28.1.2021 on which date opposite party No.3 shall appear before this Court along with the detenue Master Devansh Agarwal.

6. It is made clear that if this order is not complied with, the Court will have no option except to adopt coercive methods for their appearance."

12. Hon'ble Apex Court in Special Leave to Appeal (Crl.) No.586 of 2021 moved against the order dated 20.1.2021 has held as under:-

"The High Court directed the petitioner No.1 to be present in Court on 20.1.2021 along with the child in a writ of Habeas Corpus filed by the respondent No.3. We are informed by the learned counsel for the petitioners that the matter is now listed for hearing on 28.01.2021.

Learned counsel for the petitioners brought to our notice an order passed by this court on 11.01.2021 in Transfer Petition (c) Nos.1371-1372 of 2020 filed by Respondent No.3 by which the matrimonial dispute has been referred to the Supreme court Mediation Centre.

We are not inclined to interfere with the order impugned in the special leave petition. However, the petitioner is at liberty to bring to the notice of the High Court that the entire dispute is referred to the Supreme Court Mediation Centre and the transfer petition was directed to be listed after eight weeks.

The special leave petition is dismissed.

Pending application (s), if any, shall stand disposed of."

13. Though, counter affidavit was filed by the opposite party no. 3 to 6 but in compliance of the order of this court the detenue, 'Master Devansh Agrawal' was not produced before the court. It would be relevant to quote the order dated 28.1.2021, where the conduct of counsel appearing for the opposite party no.3 to 6 was observed by this court

"Hon'ble Alok Mathur,J.

1. Today when the matter has been taken up Sri Deepak Agrawal, Advocate has put in appearance on behalf of respondent no. 3. He has placed an order of Hon'ble Supreme Court dated 25.01.2021, passed in SLP (Civil) No. 586 of 2021. According to which it seems that one transfer application has been preferred before the Apex Court where the present matrimonial dispute has been referred to the Mediation Center of the Apex Court. The aforesaid SLP was filed against the earlier order of this Court dated 20.01.2021, where this Court had directed respondent no. 3 to appear before this Court alongwith detenue Master Devansh Agarwal.

2. Perused the order of Apex Court dated 25.01.2021.

3. Today, attention of this Court has been drawn towards the order of the Apex Court dated 11.01.2021, passed in Transfer Petition (Civil) No. 1371 of 2020.

4. The conduct of the counsel appearing for opposite party no. 3 is highly regrettable inasmuch as, the earlier orders passed by the Hon'ble Apex Court were never brought to the notice of this Court, which lead this Court to pass the order dated 20.01.2021.

5. In the light of the apology made by learned counsel appearing for respondent no. 3, this Court is not passing any further order in this regard.

6. Looking into the order of the Apex Court dated 11.01.2021, as well as 25.01.2021, list this case after two month's.

7. Learned counsel for the parties shall inform this Court, on the next date of listing, about the outcome of the mediation proceedings at Supreme Court."

14. The petitioner by way of supplementary affidavit has furnished information as to the proceeding of Hon'ble Apex Court stating that the opposite party no.3 challenged the order dated 20.1.2021 passed by this court. Hon'ble Supreme Court in Special Leave to Appeal No. 586 of 2021 referred the matter to Supreme Court's Mediation Center and dismissed the aforesaid Special Leave to Appeal vide order dated 25.1.2021. The order dated 25.1.2021 of the Apex Court is made annexure to the petition. In pursuance of order dated 25.1.2021, the parties appear before the Mediation Center of Hon'ble Supreme Court and after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute, as such, the mediation failed. The true copy of the Mediation Report is made annexure no.2 to the supplementary affidavit, which is reproduced hereunder:-

"Comprehensive mediation sessions were held with parties on 01.02.21, 02.01.21 & 04.02.21 through virtual mode and on 08.02.21 physical mediation at Supreme Court Mediation Centre.

However, after several rounds of single and joint session of mediation and after considering options available with them parties could not arrive at any amicable solution to resolve their dispute."

15. The petitioner has informed this court by way of the supplementary affidavit about two original suits of the opposite party no.3 against petitioner no.2 in para 6, which is reproduced hereunder:-

"6. That the opposite party no.3 to this Writ Petition filed two frivolous cases against the petitioner no.2 at Dhanbad vide O.S. No.333/2020 and O.S. No.385/2020. The petitioner no.2 challenged the same in Hon'ble Supreme Court in Transfer Petition Nos (Civil) Nos.1371-1372/2020. The Hon'ble Supreme Court was pleased to say the proceedings of the cases O.S. No.333/2020 and O.S. No.385/2020. The true copies of the order dated 7.12.2020 and 11.01.2021 passed in Transfer Petition (Civil) No.1371-1372/2020 is being filed herewith as Annexure No.SA-3."

16. Despite the orders passed by this court the child was not produced by the opposite party no.3 in the court. On 24.9.2021, this court has ordered for facilitating a meeting between the detenue and mother by the opposite party number 3, the order is quoted hereunder:-

"Hon'ble Manish Mathur,J.

Adjourned on account of request made of Mr. Prabhjit Jauhar, learned counsel for the respondents No.3 to 6 due to his personal engagement.

Heard learned counsel for the petitioner and Mrs. Rose Mary Raju on behalf of the respondents No.3 to 6.

Due to adjournment of the matter, learned counsel for appellants submits that the mother of the alleged detenue is not being permitted to meet the detenue aged about three years. With regard to the matter pertaining to mediation or any settlement between the parties, it has been informed that mediation proceedings before the Hon'ble the Supreme Court have failed.

Considering submissions of learned counsel for the appellant/mother of the detenue, learned counsel for the parties were provided time to obtain instructions for facilitating a meeting between the detenue and the mother. Upon obtaining instructions from the clients, learned counsel appearing for respondents no.3 to 6 submits that no hindrance will be caused in meeting of the mother with the detenue and for that purpose the mother of the detenue can travel to Dhanbad (where the detenue is staying with his father). It is submitted that the father of the detenue shall take care of the burden of financial expenditure pertaining to travel as well as stay of the mother at Dhanbad, where she will have unrestricted excess to the detenue during the day time, commencing from 10:00 AM to 05:00 PM. For the purpose of the such meeting, a person of the Bal Kalyan Samiti, Dhanbad shall be present during the meeting which shall be facilitated by the Superintendent of Police, Dhanbad.

As per the arrangements, meeting shall take place at a mutually agreeable place and may take place in Lucknow itself with the mutual consent of parties, if possible. In case the meeting take place at Lucknow, the same procedure shall be followed, for which the Concerned SHO, Lucknow shall ensure presence of a person from the Bal Kalyan Samiti.

List this case on 01.11.2021."

17. In the petition, petitioner no.2 has also stated about lodging of the first information report with regard to the abduction of the petitioner No.1, detenue by the opposite party no.3 as Case Crime No. 178 of 2020 under sections 498-A, 336, 506 I.P.C. and Section 3/4 Dowry Prohibition Act.

18. The counter affidavit filed on behalf of the opposite party no.3 to 6 has set forth a defence against the allegation made in the petition pertaining to illegally taking away the detenue (petitioner no.1), the child from the custody of mother, (petitioner no.2). In para 25, it is stated that petitioner no.1 was neither kidnapped nor taken away forcibly, the petitioner no.1 is not in the illegal custody of his natural guardian, petitioner no.2 has not invoked the remedy provided under the law to declare the guardianship which can be decided on the facts and evidences adduced by the parties. Further para 26 of the counter affidavit is reproduced hereunder:-

"26. That the contents of paragraph 13 of the writ petition are denied as incorrect. Since the opposite party no.3 is also the natural guardian therefore no FIR could have been lodged questioning his guardianship. The delay in lodging the FIR itself speaks that the same is being thought and false. Moreover, the falsity of the FIR is apparent on the face of it as avernments made in paras 11 and 12 of the writ application and that in the FIR are completely different versions. In the writ application she has averred that the deponent with her permission took the child but did not return and in the FIR she has alleged that the child was snatched from her custody and kidnapped by the deponent."

19. With regard to the relief prayed by the petitioner no.2 in her petition for handing over the custody of minor child, the petitioner no.1 to her from the custody of opposite party no.3, the father, in para 7 of the counter affidavit it is objected that according to the law laid down by Hon'ble Apex Court and High Courts, the principal consideration for the court is to ascertain whether the custody of the children 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.

20. Further, father of the detenue child (opposite party no.3) claims himself according to the Section 6 of the Hindu Minority and Guardianship Act, 1956 his natural guardian and is capable of looking after the child. The child in his parental place getting love and affection of father, grand parents and cousins as he lives in joint family. To the contrary petitioner no.2 does not take proper care of the child as for the care of child she totally depend on maid and servants of nuclear family in her house at Lucknow. She is also suspected to be suffering from "Paranoid Personality Disorder" and often remain socially withdrawn. The opposite party no.3 claimed himself reputed Orthopedic and Spine Surgeon practicing in Katras, Dhanbad in the State of Jharkhand, is capable of care of child and also financially sound to do so. With a view to clarify why the opposite party no.3 and petitioner no.2, the husband and wife living separately, he stated in para 12 and 13 of the counter affidavit that due to her obstinate behaviour, petitioner no.2 was forced to take separate accommodation out of the joint family and shifted on 5.11.2018 against his conscience but instead of living there, petitioner no.2 left the matrimonial house on 7.3.2020 without any cause and information to the opposite party no.3, efforts were made to convince the petitioner no.2 to return to matrimonial home but she patently refused. Petitioner no.2 lodged an First Information Report No.178 of 2020 arraigning the entire family members on baseless allegations. He filed a writ petition bearing number 9964 (MB) of 2020 before this court which was disposed of vide order dated 19.6.2020, in view of the law laid down by Hon'ble Supreme court in the case of Arnesh Kumar 2006 SCC 2622. Further, entire dispute have been referred to the Mediation Center of the Family Court by the police and the case has been fixed for appearance of the parties.

21. It is further stated in para 17 of the counter affidavit that opposite party no.3 is inclined to restore his matrimonial ties, therefore, he has filed a suit before Family Court, Dhanbad invoking the provisions of Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The child is in fact an essential bridge between the opposite party no.3 and petition no.2, copy of the plaint is made annexure to the petition.

22. Admittedly, the petitioner no.1, the detenue taken birth in the city of Lucknow. In para 22 the opposite party no.3 in his counter affidavit explained it by saying that petitioner no.2 has been in regular habit of living in Lucknow at her parents house and she never own responsibility of her husband and child. The allegation regarding the birth of child at Lucknow at her expenses is also false and unfounded. The deponent being a doctor made all arrangement for delivery of child in Katras, Dhanbad but the wife insisted to deliver the child in Lucknow, she is under the influence of mother all the time and very rigid. He further states in the same para that even after the delivery she refused to come back with opposite party no.3, however, he paid in cash Rs.50,000/- to her for child expenses. In para 23 of the counter affidavit, he has stated that petitioner no.2 has herself deserted the matrimonial house.

23. Apart of the aforesaid factual pleas, the said opposite party no.3 has challenged the maintainability of the writ petition on the ground that he being natural guardian of the petitioner no.1 in view of Section 6 of the the Hindu Minority and Guardianship Act, 1956 the father has paramount right for the custody of child and he cannot be deprived of the custody of minor child, his custody is not unlawful or conducive to the interest and welfare of child so as to warrant interference by the court. The habeas corpus petition shall not be the appropriate proceeding to make a decision as to who between the husband and wife shall be entitled to the custody of child. It needs elaborate enquiry on the basis of evidences to be led by both the parties which can be conveniently done only in civil or family court.

24. The opposite party no.3 has taken an objection as to the maintainability that under Article 226(1) of the Constitution of India. The power to issue writ to the government authority or the person concerned is to be exercise by the High Court having the territorial jurisdiction. In the instant case, the permanent residence of the child in Dhanbad and falls within the jurisdiction of Jharkhand High Court, therefore, this court has no territorial jurisdiction to entertain the petition for removal of custody from father and to handover the child to the mother.

25. For the purpose of considering paramount consideration of child in not disturbing the present position of custody of the child with father, he has setforth his financial capacity and social status and family status also. Despite having been filed a huge and lengthy counter affidavit dealing all aspects of the case, legal and factual, the opposite party no.3 has not stated or explained why he has not produced the detenue before the court in compliance of the order in this regard. Though, admittedly he has taken away the child with him (according to him with the consent of mother of the child) from Lucknow to Dhanbad. On the direction of this court issued vide order dated 5.8.2020. He filed a supplementary counter affidavit annexing medical certificate as to the medical advice and opinion of a doctor in Dhanbad, Jharkhand, the same is reproduced hereunder:-

"This is to certify that I have examined Master Devansh Agarwal, aged 2 years on 3rd and 8th August 2020. He was suffering from upper respiratory tract infection (URI) and was diagnosed as Pharyngitis after clinical evaluation. This is an allergic and seasonal type of disorder. I have treated him with antibiotic and anti-allergic.

He has recovered well from the ailment and doing well.

I have advised him to stay away from cold weather and drinks. It is not advisable for him to travel to long distance in AC care or train in view of the prevailing COVID 10 Epidemic."

26. In the aforesaid context, it would be relevant to quote certain para of the counter affidavit filed by the State of U.P. in the present petition. The said counter affidavit is sworn by Manoj Kumar, Sub Inspector, Police Station, Aliganj, Lucknow, Investigating Officer of the Case Crime No.178 of 2020 referred hereinabove. The relevant paras from para no.7 to 15 of the counter affidavit are quoted hereunder:-

"7. That on 24.6.2020, the deponent alongwith one male and a female constable and also with complainant and her brother proceeded for P.S. Kartas, Dist. Dhandbad, Jharkhand and intimated his arrival/visit in P.S. Kartas, Dist. Dhanbad on 25.06.2020. He had submitted an application to the SHO and along with him contacted to the deputy S.P., who had called Dr. Dinesh Agrawal for mediation but he did not turn up. For getting the judicial custody of detenue, the deponent personally requested to SSP, who had suggested to contact-Bal Kalyan Samit. A copy of proceedings recorded in CD-7 is being annexed as Annexure No.SCA 4 to this affidavit.

8. That on 26.06.2020 the deponent and his police team along with the complainant also with the help of S.H.O.- P.S. Kartas, Dist. Dhanbad visited to the house of Dr. Dinesh Agrawal where Bhabhi of Dinesh Agrawal and his cousin brother were present but Dr. Dinesh Agarwal and his parents were not available. Dr. Dinesh Agrawal was telephonically contacted, and he was asked to bring the detenue at police station Kartas. Dinesh Agrawal then replied that he was in Bokaro at that time and it was not possible for him to reach there. The police team and the complainant once again approached to the S.S.P. Dhanbad and requested for ensuring the recovery of detenue, who in response assured that S.H.O. and D.S.P. will help us. The Deputy S.P. had assured that Dinesh Agarwal will appear before the Hon'ble Court at Lucknow. Our police team had also approached to the Commissioner/DM for recovery of detenue. The true copy of notice under Section 41 (1) AB of the Cr.P.C., pasted over the house of Dr. Dinesh Agrawal and the preceding recorded in case diary with the heading CD-8 are being annexed as Annexure Nos. SCA 5 and 6., to this affidavit.

9. That on 27th June 2020, the police party of P.S. Aliganj alongwith local police reached to the permanent house of Dr. Dinesh Agarwal situated in Kartas Bazar Rajwadi Road, Dhanbad. His house was locked from outside and no information could be gathered. Thereafter the clinic of Dr. Dinesh Agrawal was also visited where it was revealed that Dr. Dinesh Agrawal had lastly visited on 23 Jan 2020 and since then he did not visit the hospital/clinic.

10. That Bal Kalyan Samiti, Dhanbad was also approached for recovery of the child. Members of said Samiti assured that a notice will be sent to Dr. Dinesh Agrawal for production of child and after recovery of the detenue the police team of Lucknow will be intimated in this regard. CD-9 of the case diary is being annexed as Annexure No.SCA-7 to this affidavit.

11. That on 27.07.2020, Mr. Vivek Kumar Singh, Advocate handed over an application alongwith the orders passed by this Hon'ble Court in Writ Petition No.9964/2020 and requested to fix the date of 29.06.2020 for appearance of accused persons.

12. That on 29.06.2020, Dr. Dinesh Agarwal appraoched to P.S. Aliganj and had given his application/undertaking that he will abide by the order passed by this Hon'ble Court in present Habeas Corpus Petition. A true copy of proceedings recorded in CD-11 and the application submitted by Dr. Dinesh Agarwal is being collectively and annexed as Annexure No.-SCA 8 to this affidavit.

13. That a detailed report dated 05.07.2020 mentioning the steps taken by police of P.S. Aliganj, District Lucknow was submitted to the office of Ld. Government Advocate, Lucknow Bench. A copy of report dated 05.07.2020 is being and annexed as Annexure No.-SCA to this affidavit.

14. That on 27.07.2020, the deponent posted a letter to the opposite parties 3-6, mentioning there in that in present Habeas Corpus petition this Hon'ble Court vide it's order dated 13th of July 2020, has been pleased to direct them to appear before this Hon'ble Court and to produce detenue on 05.08.2020. A true copy of letter dated 27-07-2020 is being annexed as Annexure No.-SCA-10 to this affidavit.

15. That in compliance of the orders passed by this Hon'ble Court and also in furtherance of letter dated 31 July 2020 issued by C.J.M. Lucknow, for ensuring the personal appearance of opposite party number 3 to 6 in present Habeas Corpus petition, constable Vikas Sehgal of police station- Aliganj, was deputed to serve the notice personally, upon opposite party number 3 to 6. The said notice was served upon the opposite party 3 to 6. The said notice was served upon the opposite party 3-6 on 02.08.2020 at their Dhanbad address."

B. Arguments.

27. Heard the learned counsels for the parties. It is argued by the learned counsel for the petitioner No.2 that out of the wedlock between the father and mother of the child, he borne on 3.7.2018 in Lucknow. It is further argued that the mother who carried the child in her womb for 9 months and then gave birth to him, the child used to reside in the house B-47, Sector H, Aliganj, District-Lucknow. The child was never parted from her mother before 7.7.2020 when he was illegally taken away from her custody. The mother is well educated having M.B.A. in Finance and Human Resource, she is physically, financially and emotionally very much eligible for taking care of child in every way. It is further argued that there was repeated demand of dowry of Rs. 40 lacs by father of the child (opposite party no.3) since before his birth. When the atrocities and cruelties of the father of the child in connection with the demand of dowry increased day by day, she was compulsed to leave her matrimonial home in Dhanbad, Jharkhand and to go to Lucknow before delivery of the child. All the cost and expenses of delivery of the child were incurred by her. She has a constant source of earning accrued from the interest over her savings in the Bank. It is further argued that mother was in a reputed job of teaching but since birth of child only for the purpose of looking after him and care she left that job. It is argued that the way in which the custody of the minor infant child of approximately 21 months was snatched deceitfully from mother and he was abducted by the father who taken away him from Lucknow to Dhanbad in the State of Jharkhand itself amount not only immoral but a criminal act also. Further despite several orders of the court to appear in person and produce the child before the court, father intentionally defied the order and thus maliciously stopped the child to see her mother. It is evident from the order of this court also passed to facilitate the meeting of the mother with the child but the same was disobeyed. Even the mother has deposited Rs.30,000/- in the High Court in compliance of the order of the court as expenses for arriving at Lucknow from Dhanbad with the child and companion, if any. The money still remain unexhausted in the court's account but that order was also made futile by the father. All these shows the instinct of the father to illegally confine the child with him and not permitting him to see his mother in anyway daringly. It is further argued that the detention of the child is not by the reason of love and affection of father towards the child but it is in vengeance of mother's leaving the matrimonial home, so as to teach her a lesson. Moreover, to bargain the demand of dowry of Rs.40 lacs in lieu of the child to go back to her mother.

28. Learned counsel had argued that the child is of much tender age, he needs his mother at this stage and nothing can replace the love affection and care of the mother to which he is entitled. If he is left in the custody of father and his relatives it is much possible for them to make his brain wash and influence him against her mother. Keeping into view all these facts it is emphasized that in the light of judgments of the Hon'ble The Apex Court and this court the welfare of the child be considered and child be removed from the custody of father to hand over him in the custody of mother. Reliance placed on the judgment of Apex Court in the case of Roxann Sharma Vs. Arun Sharma1 and the judgment of this court in Meenakshi and Anr. Vs State of U.P. and Others2 and in Shigorika Singh Thru. her mother Vs. Dr. Abhinandan Singh and Others3.

29. Against the contention of of the counsel for the petitioner, counsel for the opposite party number 3 to 6 argued that the mother unreasonably left the matrimonial house when she was conceived, even on her insisting and denial to live in joint family separate accommodation was arranged by father of the child but she reached in Lucknow on the motivation of her mother who is a dominating lady. It is further contended that father is practicing doctor in Orthopedic and is a Spine Surgeon, belongs to a reputed family, has a clinic in Katras at Dhanbad, State of Jharkhand. He is permanent resident of the aforesaid place, therefore, child should reasonably be stayed with the father. So far as the present custody of the father is concerned, it is obtained with the consent of mother of the child when he went Lucknow with a purpose to reconcile the matrimonial differences with her. Under that reconciliation the mother of the child became ready to come at Dhanbad from Lucknow. A day after when she permitted on 7.6.2020 to carry the child with him from Lucknow to Dhanbad. It is argued that family of father of the child is a joint family comparingly, the mother of the child is in nuclear family. In the custody of father, the child is gaining much love, affection and care not only from father but also from other family members like grandparents, his cousins brother and sisters. To the contrary for the care of the child in Lucknow, his mother quite depend on her servants and maids and it is not possible for the mother to look after him at every point of time, as such, the child would feel loneliness and neglected which certainly would affect his upbringing and growth. Learned counsel relied on the judgment of this court in writ petition of Habeas Corpus No.467 of 2021 Vahin Saxena (Minor Corpus) and Another Vs. State of U.P. and 3 Others4 where the father's petition was dismissed and petitioner, the Corpus was set at liberty to go back along with respondent no.4, his mother to the place from where they have come. Further, reliance is placed on the judgment of Habeas Corpus No. 9 of 2020, Reshu @ Nitya and 2 Others Vs. State of U.P. and 3 Others5. Further reliance has been placed on the judgment of Hon'ble The Apex Court in Ruchi Majoo Vs. Sanjeev Majoo6 and a judgment of High Court of Orissa delivered on 15.10.2015 in Anil Kumar Pradhan and Others Vs. Madhabi Pradhan7.

30. Learned counsel relied on the Judgment of Vahin Saxena (Minor Corpus) (Supra) emphasing its para-10 in which judgment of Tejasvini Gaud & others Vs. Shekhar Jagdish Prasad Tewari & others8 is relied on para 14 and 19, which is quoted hereunder:-

"14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

x x x

19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings 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 remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise 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.

31. In the broad spectrum emerged from the pleadings of the parties namely the petitioner no.2 and private opposite party no.3 to 6 and that of the State opposite parties of the present writ of habeas corpus, this court has a duty to examine at the threshold whether the minor is in lawful custody of the private respondent no.3. In forthcoming paras of the judgment discussion will be made on the following aspects of the matter for the purpose of determination of right and entitlement of either of the parties to have custody of the child (detenue) subject to the consideration of best interest and welfare of the child:-

(i) Whether the custody of the minor child, Devansh Agrawal, the petitioner no.1 was taken away from the custody of his mother (the petitioner no.2) by the opposite party no.3 illegally, if so, its effect.

(ii) Jurisdiction of the Court and comity of courts.

(iii) Relevant provisions of Law- Maintainability of petition for habeas corpus.

(iv) Welfare of the child.

(v) Mother being a natural guardian, her importance in the life of petitioner no.1 (detenue, Devansh Agrawal) who is an infant child of approximately two years the legal rights of the natural guardian and the paramount interest of the child.

(vi) Best interest of the child.

(vii) Conclusion.

(i) Whether the custody of the minor child, Devansh Agrawal, the petitioner no.1 was taken away from the custody of his mother (the petitioner no.2) by the opposite party no.3 illegally, if so, its effect.

32. The foregoing paras under the head "Factual Matrix", state the arrival of opposite party no.3 at the home of petitioners on 6.6.2020 in a car from Dhanbad to Lucknow pretending an offer to reconcile the disputes between them. On the next day, opposite party no.3 at about 9 O'Clock, left his luggage in petitioner's home pretending to go out with petitioner no.1, the child (Master Devansh Agrawal) for having a short drive with him and thereafter to come soon. But, he taken away the child to his home at Katras Dhanbad, in the State of Jharkhand. In his counter affidavit, the opposite party no.3 though has accepted bringing the child with him from Lucknow to Dhanbad but added that he did so with permission of the mother of the child, the petitioner no.2. In the wake of the pleadings with regard to the above incident of taking away the child (petitioner no.1) by father (the opposite party no.3) from the custody of mother (petitioner no.2) pretending that he will come soon after having a short drive with him whether amounts permission of mother for such taking away the child from Lucknow to Dhanbad. This is also material to keep into consideration the conduct of opposite party no.3 who left his luggage in the house of petitioners to keep petitioner no.1 under impression that he will come soon with the child after having a drive. The permission or consent of the mother for taking out the child (detenue) from her custody by the opposite party no.3 may be construed by all stretch of imagination only to the extent of near vicinity of the house or to a maximum within the territorial limits of District Lucknow and in no way upto the District-Dhanbad in the State of Jharkhand. Such acquiescence cannot be treated as consent of the mother to take away her child from Lucknow to Dhanbad in the State of Jharkhand by reason of her being in impression caused through the misrepresentation by the opposite party no.3 verbally as well as by his conduct. By leaving his luggage, the opposite party no.3 kept the petitioner no.2 under impression that he certainly will not leave her home or even the District Lucknow with the child. The act and conduct of the opposite party no.3 to go out of Lucknow with the child from his car traveling a long distance to his home at Katras Dhanbad in the State of Jharkhand shows that while he was seeking permission to take out the child for having a short drive and come soon thereafter he maliciously intended to leave even Lucknow with the child to bring him in Katras, District Dhanbad, State of Jharkhand. At that moment there seems no privity of mind between the petitioner no.2 and the opposite party no.3 on the same thought with regard to taking the child out of home in Lucknow only.

33. It would not be out of room to refer two provisions of law one from Indian Contract Act which creates civil liability against maker of an untrue statement and another from criminal law which punishes the maker of such statement. Section 18 of the Indian Contract Act, 1872 reads as under:-

18. "Misrepresentation" defined.--"Misrepresentation" means and includes-- --"Misrepresentation" means and includes--"

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage of the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.

Section 415 of the Indian Penal Code, 1860 runs as under:-

415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper­ty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section. Illustrations

(a) A, by falsely pretending to be in the Civil Service, inten­tionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, inten­tionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in conse­quence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.

34. The word "Misrepresentation" as defined in the Section 18 of the Indian Contract Act,1872 and the illustration in Sections 415 of the Indian Penal Code,1860 in the offences relating to the cheating is untrue statement of a material fact made by one party which affects the other party's decision in correspondence. Believing on the misrepresentation, the petitioner though never intended to loose her child (detenue) nor it was communicated to her that child will go permanently in the custody of the opposite party no.3 as and when she let the child to go with the opposite party no.3 out from the house for a drive. The petitioner no.2 in fact suffered loss of custody of her child who was given birth by her in Lucknow and since his birth upto the date of incident i.e. on 7.6.2020 approximately for one year nine months was naturally remain with his mother. The opposite party no.3 already have filed two civil suits relating for restitution of conjugal rights under Section 9 of Hindu Marriage Act, 1955 as well as under the Guardians and Wards Act, 1890 in the court at District- Dhanbad, wherein mediation though ordered but was not succeeded, therefore, arrival of opposite party no.3 in Lucknow and entry in the house of petitioners was obviously for some interested purpose in planned way which reflects from the taking away the child (detenue) from the custody of mother with whom he was still under litigation. The taking out of the child or removing the child from the custody of mother (petitioner no.2) by the opposite party no.3 (father), even both of them are natural guardian of the child, but the father since snatched of the child from the custody of mother in a deceitful manner, therefore, his custody turned in unlawful detention of the child. Even he stopped the child to see her mother despite several orders passed by the court for production of child in the court and even facilitating the meeting of mother with the child by a blunt defiance of the order. Since then the petitioner no.2 could not see her child the petitioner no. 1, Master Devansh Agarwal in utter violation of the infant's fundamental right.

35. In a case before Supreme Court, Kusheshwar Prasad Singh Vs. State of Bihar & Ors.9 it is held:-

"16. It is settled principal of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who pretends a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong".

36. In another case before Hon'ble Supreme Court Mrs. Elizabeth Dinshaw Vs. Arvind M. Dinshaw & Anr.10 of which fact are somehow akin to the facts of the present case, the father abducted the minor illegally in India. On a writ petition filed by the mother for the custody of minor it was held that the mother was full of genuine love and affection for the child and she could be safely trusted to look after, educate him and attend in every possible way to his proper upbringing. The child's presence in India was held to be result of an illegal act of abduction and the father who was guilty of said act was held not entitled to get any advantage. Relying upon 1966(1) All England Reporter 886, it was observed that it is the duty of courts in all countries to see that the parent doing wrong by removing the children out of their country did not gain any advantage by his or her wrong doing.

37. In Gippy Arora Vs. State of Punjab and Others11 the relevant portion of para-13 is quoted hereunder:-

"Similar question had arisen before this Court in Manjit Kaur v. State of Punjab, Crl. W.P No.608 of 2008, decided on August 14, 2008 where a minor child of 9 months was taken away by his grand-parents when their daughter-in-law , an NRI, had come from abroad for a short period. This court had held relying upon Manju Tiwari Vs. Rajendra Tiwari, AIR 1990 SC 1156 that habeas corpus perition was maintainable as the child has been illegally snatched away from the mother. Custody of the child was handed over to the mother leaving the parties to avail other remedies in accordance with law."

38. The instant matter under the petition for the writ in the nature of habeas corpus, pertaining to removal of minor infant child on 7.6.2020 from the custody of mother with whom he was residing in Lucknow since his birth till he was taken away by the father (Opposite Party No. 3) to Dhanbad in Jharkhand and detained in his custody clogging the parenting opportunities of mother and stopping her even from seeing the child, the father's custody of child is absolute unlawful.

39. The facts stated hereinabove cumulatively indicate the opposite party no. 3 who was separately living from the petitioners at Dhanbad (Jharkhand) reached Lucknow at the residence of petitioners and deceitfully won the custody of the child (Petitioner No. 1) from the sole custody of mother (petitioner no. 2) taking him away to Dhanbad instantly and then not only clogged her parenting rights but also stopped the child (petitioner No. 1) from seeing her. The act of opposite party no. 3 (the father of the child) is nonetheless a crime akin to kidnapping defined as an offence under Section 361 and 362 of the Indian Penal Code, 1860. His act of deceitfully taking away the child out from custody of mother amounts to parental kidnapping which is not only illegal but criminal also.

40. Concluding the above discussions the custody of the petitioner no.1 Master Devansh Agrawal (detenue) with opposite party no.3 is unlawful, illegal and criminal, therefore, he cannot be permitted to take undue advantage over the rights of custody as natural guardian of the child in the present writ.

A legal maxim states "no man shall take advantage of his wrong; and this maxim, which is based on elementary principals, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure". This is based on the latin maxim "commodum ex injuria sua nemo habere debet".

(ii) Jurisdiction of the Court and comity of courts

41. Section 6(a) of the Act of 1956 provides that firstly father is the natural guardian of a minor, and, after him "the mother" would be the natural guardian. It does not mean that the guardianship to the mother accrued only after the death of the father or on his renouncing the world.

42. In Githa Hariharan Vs. Reserve Bank of India and Vandana Shiva Vs. Jayanta Bandopadhyaya12 the Supreme Court held that during some circumstances the mother can act as a natural guardian of the child, even if the father is alive. The meaning of word "after him" was interpreted as "in the absence of". If both the parents are living separately for a long time and minor lives with mother then mother becomes natural guardian of the minor. If the father for any reason is physically not available to take care of the minor child, then he may be considered "absent" and mother can validly act on behalf of minor. In the proviso of Section 6(a) of the Act of 1956, it is stated that if the minor is below five years of age then mother is the natural guardian of the minor child. The meaning of the words used in the Section "ordinarily with the mother" is to be read with Section 9 of the Guardians and Wards Act, 1890 which deals with the jurisdiction of the court in which it states that the place where the minor ordinarily resides. The purpose of stating a mother as the natural guardian of the child who is below five years is that mother is the best person to look after the welfare of the child and father cannot afford sufficient time to the needs of the child as well as welfare of the child. The Phrase "the place where the minor ordinarily resides" when the child is below five years of age means that the court will have the jurisdiction where the mother resides and the child resides with the mother. It is thus clear that the ''child' Devansh Agarwal is ordinary resides in house B-47, Sector-H, Aliganj, District-Lucknow where the mother lives.

43. It was argued vehemently by the learned counsel for the opposite party no.3 to 6 that the child being in the custody of father residing at Katras, Dhanbad in the State of Jharkhand relief sought in habeas corpus with regard to removal of child from the custody of father at Dhanbad to hand over the custody to the mother at Lucknow is not entertainable in view of Article 226 (1) of the Constitution of India. It is not disputed that the child borne in Lucknow on 3.7.2018 and was residing there with her mother (petitioner no.2) till 7.6.2020 when he was brought by father from Lucknow to Dhanbad, Jharkhand. Much have been discussed in preceding paras pertaining to such taking away of the child by the father under the head " Whether the custody of the minor child, Devansh Agrawal, the petitioner no.1 was taken away from the custody of his mother (the petitioner no.2) by the opposite party no.3 illegally".

44. In Yashita Sahu v. State of Rajasthan13 Hon'ble Supreme Court has held in para- 10 as under:-

"10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , Nithya Anand Raghavan v. State (NCT of Delhi) [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] and Lahari Sakhamuri v. Sobhan Kodali [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] among others. In all these cases, the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable."

45. Similar question had arisen before this Court in Manjit Kaur v. State of Punjab14 decided on August 14, 2008 where a minor child of 9 months was taken away by his grand-parents when their daughter-in-law, an N.R.I., had come from abroad for a short period. This court had held relying upon Manju Tiwari Vs. Rajendra Tiwari15 that High Court can exercise jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of writ of habeas corpus when there is illegal detention or wrongful custody, as such, the writ of habeas corpus petition maintainable as the child has been illegally snatched away from mother.

46. In S.P. Chengalvarajna Naidu (dead) by Lrs v. Jagannath16 Hon'ble Apex Court has observed as follows:-

"Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

47. For maintainability of writ for the Habeas Corpus the Apex Court in Capt. Dushyant Somal Vs. Sushma Somal17 held:-

3. There can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child....................................................................................... But all this does not mean that a writ of habeas corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a court has given such custody. .................................................................. The High Court was quite right in coming to the conclusion that the appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The writ of habeas corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward.

48. In the case of Mrs. Elizabeth Dinshaw (Supra), in para-9, Hon'ble Apex Court has held as under:-

9. ................................................................................

"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."

49. The opposite party no.2 after having fraudulently taken away the custody of the child from an area falling within the jurisdiction of this court has taken stand that the petitioner is not entitled to maintain the petition of habeas corpus with regard to the custody of child which is not tenable in the eyes of law. Moreover, he plead that custody of the child cannot be removed from him does not lie in his mouth as he played a fraud with the petitioner and later on got a preferential right to keep the custody of the child. The manner in which the child has been taken away from the petitioner cannot have the approval and sanction of law. He should have adopt a legal procedure to take the custody of the child.

50. It is held, therefore, the Bench of High Court Allahabad, at Lucknow has jurisdiction over the matter of child's custody to be removed from father residing at Dhanbad, State of Jharkhand as he retain custody of child in illegal way and the child is in his illegal detention.

51. In the case of Yashita Sahu (Supra), it is held by Hon'ble Apex Court with regard to the comity of courts as under:-

"Comity of courts

In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country's courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child's custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country."

(iii) Relevant provisions of Law- Maintainability of petition for habeas corpus.

52. Section 6 of the Hindu Minority and Guardianship Act, 1956 if its proviso being quoted hereunder:-

"6. Natural guardians of a Hindu minor.--The natural guardian 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;

.................................................."

53. Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 which shall hereinafter be called for the purpose of brevity and convenience as "Act of 1956" states that father is the natural guardian of minor, after him the mother becomes the natural guardian. The proviso to the Section 6 (a) states that if the minor is below five years of age then the mother is the natural guardian of the minor child.

54. The law for guardianship under Hindu law was codified under Act of 1956 enacted to define the relation of guardians with the minors their rights and power on the minors' person and property virtually the Act of 1956 is a extended part of the guardianship and Wards Act, 1890. It focuses on the type of guardians and custody of the child. Under the Act of 1956 out of the three types, first is the natural guardian. Section 6 of the Act 1956 states about the guardian of the minor i.e., father, mother or the husband. Father is the natural guardian, after him, mother becomes natural guardian of minor. Even under Section 19 of the Guardianship and Wards Act, 1890 also it is stated that a father cannot be deprived of natural guardianship of child unless he has been found unfit. When the father is alive, he is natural guardian and it is only after him, the mother becomes natural guardian.

55. The guardianship of the minor is not about legal rights of the guardians but it takes the welfare of child into consideration. Section 13 of the Act of 1956 runs 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 minor 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 opinion that his or her guardianship will not be for the welfare of the minor."

A bare reading of the aforesaid provision provides as a paramount consideration the welfare of the minor. It is stated that Section 6 should be always read with Section 13 of the Act of 1956.

56. There are two other provisions in Guardians and Wards Act, 1890 namely Section 7 and 17, which are quoted hereunder for easy reference:-

7. Power of the Court to make order as to guardianship.--

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made--

(a) appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instru­ment or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provi­sions of this Act.

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. 1[***]

(5) The Court shall not appoint or declare any person to be a guardian against his will.

57. This would be pertinent here to clarify that this court in the instant petition for issuance of writ of habeas corpus has no need to declare and appoint ''Guardian' of the minor. The scope of the instant writ is confined to the custody of minor to either one of the parents the natural guardians of the minor child, keeping in consideration his best interest and welfare. The word "welfare" should not be weighed with money nor should be judged on the ground of mere physical comfort but it should also be a moral and ethical welfare of the child alongwith physical well being.

(iv) Welfare of the child.

58. In the case before High Court in Habeas Corpus petition Shigorika Singh (Supra), the Corpus Shigorika Singh borne out of wedlock of Dr Ayushi Singh (mother) and opposite party no.1, Dr. Abhinandan Singh (father). By reason of some serious matrimonial differences they were separated including harassment and physical torture. The wife was dropped by father of the child with her minor daughter to her maternal home on 25.10.2018 and since then they were living together with the parents of mother, though father was visiting regularly to both of them without any objection from the mother's maternal family. In the facts involved in this case the father of Shigorika visited the maternal home of her mother on 10.1.2020 at about 7 to 8 p.m. and pretending that he wants to meet with his daughter sitting in the car, thus he taken the daughter from her mother's custody and drove away with the daughter. Mother seen the daughter being driven away with the father raised alarm but the father left the spot with the daughter, subsequently, on his denial the petition in the nature of Habeas Corpus was filed against father by the mother seeking custody of daughter. In that case also the court had relied on the judgment of Yashita Sahu Vs. State of Rajasthan. In a Habeas Corpus petition as aforesaid, the High Court must examine at the threshold, whether a minor is in lawful or unlawful custody of any person private respondents named in the writ petition. The court in the above case was of the opinion that the custody of daughter with his father was illegal, consequent thereupon writ petition was allowed with a direction that custody of daughter should be immediately handover to mother.

59. In another case before this court in Meenakshi and others (Supra), mother was the first petitioner and father was the respondent no.9, they were married on 20.4.2014, out of their wedlock for a period of four years throughout of her marriage she was tortured physically and mentally in connection with the demand of dowry. She went back to her mother's house on 4.6.2018 with a son born on 20.9.2016, the Court held in para-18 and 19 as under:-

18. There is little doubt about the issue that though both the mother and the father are natural guardians, a writ of habeas corpus may issue, because the Court can still determine the legality of the custody with reference to the question of the minor's welfare. As it is said, it is not so much about the rights of the parents to an exclusive custody of the child, as it is about the child's welfare. It is, therefore, lawful for the Court to exercise its jurisdiction and issue a writ of habeas corpus to place the child in a custody, where his/ her welfare appears to the Court to have the best prospects. This petition is, therefore, held to be maintainable.

19. It must be remarked here that the mother has come up with serious allegations about her son being kidnapped by force, by none else than her brother and being delivered into her husband's custody. In their counter affidavit, filed by respondent nos. 6 to 8, that allegation has been vociferously denied. Meenakshi's attempts to put the process of criminal law in motion with regard to her allegations about the minor's kidnapping have failed with the police, and the Judicial Magistrate too, has declined to order the police to register and investigate the case; the Magistrate has directed the matter to proceed as a complaint case. Meenakshi's brother and husband have both denied allegations about the minor being kidnapped. So far as this Court is concerned, there is no tangible evidence about the minor's alleged forcible removable from the mother's custody. This Court is not inclined to probe the matter further, bearing in mind the relationship between parties, and the minor's welfare.

Further, in para-25 held as under:-

25. No doubt, the father and the mother, are both natural guardians, if one goes by Section 6(a) of the Act of 1956. The mother's right and that of the father, under Section 6(a) as to guardianship has been considered at par by the Supreme Court in Githa Hariharan (Ms) and another vs. Reserve Bank of India and another, (1999) 2 SCC 228. So far as custody goes, as distinct from guardianship, between the two natural guardians, the mother is to be preferred by virtue of the proviso to Section 6(a) of the Act of 1956, in the case of a child below five years of age.

60. Ultimately, the court held that generally speaking further the custody of a minor child of tender age below the age of 5 years ought to be with mother subject to several exceptions. This court allowed the writ petition of habeas corpus and ordered that minor who is presently in the custody of his father shall be delivered into the custody of mother within 3 days from receipt of copy of this order. In case minor's custody is not handover to his mother then that time the Chief Judicial Magistrate and the Superintendent of Police of the District acting in aid of Chief Judicial Magistrate shall cause the minor to be delivered into the custody of his mother after taking it out from the custody of his father.

61. In the case of Roxann Sharma (Supra) Hon'ble Supreme Court held about the custody of a Hindu child aged about 5 years considering the entitlement of father vis-a-vis mother, in para 10 to 15 as under:-

10. Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

11. We shall now consider the relevance of the precedents cited before us by the learned Senior Counsel for the Father. In Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14, in defiance of the orders passed by the Jurisdictional Court in the U.S., the mother, Sarita, had returned to India with two children from their matrimonial relationship. The High Court viewed that the divorce decree and custodial directions having emanated from a competent Court deserve to be honoured, and accordingly allowed the Habeas Corpus Petition and directed the mother to return the custody of the children to the father, Sushil. This Court was not persuaded that further consideration by Courts in India as to whether the interests of the children, which were paramount, stood foreclosed and could not be cogitated upon again. As regards Section 6 of the HMG Act, it opined that although it constitutes the Father as a natural guardian of a minor son it could not be considered as superseding its paramount consideration as to what is conducive to the welfare of the minor. These observations were reiterated and this Court reversed the decision of the High Court holding that the interests and welfare of the children dictated that the custody should be with their mother. This case, therefore, militates against the legal and factual position which the Father seeks to essay before us. It is also important to underscore the fact that both the children were over the age of five, a fortiori, the custody should not have been reversed in the case in hand by the High Court from the Mother to the Father since Thalbir was then around one year old and is presently still less than three years old.

12. Learned Senior Counsel has next drawn our attention to Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673. In this case also, this Court was confronted with the custody conflict over 10 year male child. We must be quick to point out that the Court did not consider Section 6 of the HMG Act after detailing the factors which were indicative of the position that the welfare of the child lies with continuing the custody with the father, this Court dismissed the mother's appeal. The facts are totally distinguishable. The ratio continues to be that it is the welfare of a minor which has paramount importance.

13. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.

14. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the father's suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother's unsuitability since Thalbir is below five years of age. In these considerations the father's character and background will also become relevant but only once the Court strongly and firmly doubts the mother's suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.

15. In the course of the hearings before us temporary visitation rights were granted to the Mother under the provision of a social worker who had been appointed by the Maharashtra State Legal Service Authority. We have had the advantage of perusing her very diligent and detailed Reports which vividly recount the initial reluctance and antipathy of Thalbir to his Mother, which very quickly came to be naturalised because of the maternal affection of the Mother. The Reports of the Social Worker lucidly indicate that at present Thalbir is extremely comfortable and happy in the company of his Mother but becomes agitated at the sight of his Father when he has to return to him. The Social Worker has also fervently pleaded that her Reports should be kept sealed for fear of the Father. This is extremely disturbing to us just as we expect it should be to the Father also.

62. Learned counsel for the opposite party no.3 to 6 relied on the judgment of Vahin Saxena (Minor Corpus (Supra), wherein the petitioner corpus born in the year 2012, the mother of child as such to left her maternal home in the year 2012 alongwith minor child and since then he is with his mother, a divorce petition was also pending between husband and wife, para-22 has held as under:-

"22. In a child custody matter, a writ of habeas corpus would be entertainable where it is established that the detention of the minor child by the parent or others is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits, in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum. The remedy ordinarily in such matters would lie under the Hindu Minority and Guardianship Act, 195613 or the Guardians and Wards Act, 189014, as the case may be."

And, ultimately held that since the case involves a proceeding between husband and wife under the Hindu Marriage Act pending before the Family Court and all reliefs and claims are open to raise before the said forum and in other appropriate proceeding. The petitioner no.1, the minor at liberty to go back along with the respondent, mother to the place from where they have come with dismissing the petition of father.

63. Likewise, in the judgement delivered by this court in Reshu @ Nitya (Supra) para 47 is relevant to quote here with regard to the character of the proposed guardian:-

47. Considering the facts of the case in particular the allegations against the respondent and pendency of a criminal case for an offence punishable under Section 498-A IPC, it was observed in the decision in the case of Nil Ratan Kundu that one of the matters which is required to be considered by a court of law is 'character' of the proposed guardian and that the same would be a relevant factor. It was observed thus :-

"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 Kirtikumar10, 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."

64. Further, in para 48 and 49 of the aforesaid judgment, the father's preferential rights to the custody of minor child was not given weight on the ground that it would not be in the interest of children to hand over the custody to father. The respective Paras are quoted here under:-

48. In an earlier decision in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker Joshi10, where in almost similar circumstances the father was facing a charge under Section 498-A I.P.C., it was held that though the father being a natural guardian, has a preferential right to the custody of the children, but in the facts and circumstances of the case, it would not be in the interest of the children to hand over their custody to the father.

49. It is, therefore, seen that in an application seeking a writ of habeas corpus for custody of a minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether the welfare of the child requires that the present custody should be changed and the child should be handed over in the care and custody of somebody else other than in whose custody the child presently is.

65. Ultimately the petition of the father was dismissed with the finding recorded in para 59 that it would be relevant to bear in mind that in deciding questions relating to custody of a minor child, as in the present case, the paramount consideration would be welfare of the minor and not the competing rights with regard to guardianship agitated by the parties for which the proper remedy would be before the appropriate statutory forum.

66. Further, learned counsel for the opposite party no.3 to 6 relied on the judgment of Ruchi Majoo (Supra) wherein Hon'ble Apex Court has held as under:-

"A child of NRI parents was born in America. The wife on account of husband's alleged addiction in pornographic films, internet sex and adulterous behavior during the couple's stay in America, took a decision to educate the child in Delhi and the husband consented to it. But later the husband filed a case of abduction of minor child against the wife in America and an Interpol red corner notice was issued against the wife.

The wife took refuge udder an order passed by the District Court, Delhi in a petition filed under Section 7, 8, 10, 11 of the Guardian and Wards Act, 1890 granting interim custody of the minor ro her. A writ filed by the husband was allowed by the impugned order of the High Court, whereby the High Court set aside the order passed by the District Court and dismissed the custody case filed by the mother.

The main question in this appeal were: (I) whether the High Court was justified in dismissing the petition for custody of the minor on the ground that the court at Delhi had no jurisdiction to entertain the same, (ii) whether the High Court was right in declining exercise of jurisdiction on the principle of comity of courts, and (iii) whether the order granting interim custody to the mother of the minor called for any modification in terms of grant of visitation rights to the father, pending disposal of the petition by the trial court.

Allowing the appeal and answering the first two questions in the negative and the third question in the affirmative, the Supreme Court held:

The court of Delhi was in the facts and circumstances of the case competent to entertain the application filed by the appellant."

(v) Mother being a natural guardian, her importance in the life of petitioner no.1 (detenue, Devansh Agrawal) who is an infant child of approximately two years the legal rights of the natural guardian and the paramount interest of the child.

"Only mothers can think of the future because they give birth to it in their children.

Maxim Gorky"

There is a Sanskrit Shlok authored by Maharshi Ved Vyas in Skand Purana devoted to the importance and magnanimity of "Mother" which is quoted hereunder:-

ukfLr ekr`lek Nk;k

ukfLr ekr`lek xfr%A

ukfLr ekr`lek =k.ka

ukfLr ekr`lek izikA

Means,

"there is no shelter like a mother,

no sustenance (support) like a mother,

no protection like a mother,

no vitaliser like a mother."

67. It is settled law by our courts that while deciding matters of custody of a child the only basis must be what would be in the best interest of child.

68. The role of the mother in the development of a child's personality can never be doubtful, a child receives the best shelter and protection through the mother, naturally mother is required for any child to grow up in her company neither the father nor any other person can give the same kind of love, affection, care and sympathies to a child as that of mother. The presence and company of mother is always in the welfare of the minor child.

69. In Eugenia Archetti Abdullah Vs. State of Kerala18, a Division Bench of Kerala High Court observed that for an infant child of less than three years lap of the mother is a natural cradle where the safety and welfare of children can be assured and there is no substitute for the same.

70. The mothers role in the early childhood and development of the child is well recognized in the literature as well in the legal panorama of the nation. Mothers play a great role in their children's life, caring them, loving them, teaching them and so much more. A mother's role is important in developing a child's potential in his/her early age. Early childhood is that important part of life in which developmentally, a child is learning a lot from their surrounding and people around them which will impact their growing years. Therefore, as the main persons in a child's life at this stage, a mother's relationship with a child is crucial.

(vi) Best interest of the child

71. In Yashita Sahu Vs. State of Rajasthan (Supra), Hon'ble Apex Court held in para-18 and 19 as under:-

"18. Thereafter, another Bench of this Court in Lahari Sakhamuri [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] , while interpreting the judgment in Nithya Anand Raghavan [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] held as follows : (Lahari Sakhamuri case [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 : (2019) 3 SCC (Civ) 590] , SCC p. 337, para 41)

"41. ... the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child."

19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration."

72. In the case of Gaurav Nagpal Vs. Sumedha Nagpal19 Hon'ble Apex Court in cases of dispute between mother and father expected the courts 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. It is held in para-48 which runs as under:-

48. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings 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.

73. The word ''welfare' is given meaning by the Hon'ble Apex Court in the case of Gaurav Nagpal (Supra) in para-51 which runs as under:-

51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken 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 parens patriae jurisdiction arising in such cases.

74. In Anjali Kapoor (Smt.) Vs. Rajiv Baijal20 Hon'ble Apex Court further explained the word welfare as under:-

"21. In Walker v. Walker & Harrison [1981 New Ze Recent Law 257] the New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that:

"Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."

(emphasis supplied)"

75. In deciding the question as to the custody of minor child to anyone of the parent the elements required to be considered is not only the absolute right of the guardian superseding the interest of the child. Hon'ble The Apex Court in para 2 and 5 of the judgment in Sumedha Nagpal Vs. State of Delhi & Ors.21

"2. Both parties do recognise that the question of custody of the child will have to be ultimately decided in proceedings arising under Section 25 of the Guardians & Wards Act read with Section 6 of the Act and while deciding such a question, welfare of the minor child is of primary consideration. Allegations and counter-allegations have been made in this case by the petitioner and Respondent 2 against each other narrating circumstances as to how the estrangement took place and how each one of them is entitled to the custody of the child. Since these are disputed facts, unless the pleadings raised by the parties are examined with reference to evidence by an appropriate forum, a proper decision in the matter cannot be taken and such a course is impossible in a summary proceeding such as writ petition under Article 32 of the Constitution.

5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned counsel for the petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is no substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a minor child; we refrain from examining or deciding the same."

76. In Rosy Jacob Vs. Jacob A. Chakramakkal22 the Apex Court observed in para 7 as under:-

In his view the principle on which the Court should decide the fitness of the guardian mainly depends on two factors :(i) the father's fitness or otherwise to be the guardian and (ii) the interests of the minors. Considering these factors it was felt that both the parties in the present case loved their children who were happy during their stay with both of their parents.

77. In Anjali Kapoor (Smt.) (Supra), Hon'ble Apex Court relying on its two other judgments observed in para 17 and 19:-

17. In Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3] this Court has observed that whenever a question arises before court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.

19. In McGrath (infants), Re [(1893) 1 Ch 143 : 62 LJ Ch 208 (CA)] it was observed that: (Ch p. 148)

"... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

78. In Mausami Moitra Ganguli Vs. Jayant Ganguli23 Supreme Court observed in para-19 as under:-

19. 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 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 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.

79. In Rosy Jacob (Supra), the Apex Court observed "Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them".

80. After going through the case laws propounded by Hon'ble Apex Court with regard to the interest and welfare of the child, this Court has also required to evaluate the facts and circumstances involved in the present case with regard to the custody of minor child, Master Devansh Agarwal whether lies with the present custody i.e, with father or lies in removal of custody from the father to hand over the same to his mother.

81. In the foregoing discussion this court has already held the custody of father, opposite party no.3 is illegal, then also it is necessary to look into the best interest of the child, his physical and financial comfort, emotional attachment with natural guardian as well as the gravity of love, affection and care of either of the parent towards the minor child. The child since his birth on 3.7.2018 in Lucknow was ever been with the mother till 7.6.2020 when he was taken away from Lucknow to Dhanbad by the father at the age approximately below two years. The mother in her petition supported with the affidavit has stated that the child has never been parted from her throughout the aforesaid period and he heavily depends on her for his feeding, still depends on mother's milk. In other words, it is undoubtedly admitted fact that father has never been in custody of the child since his birth before 7.6.2020 when he landed suddenly at the house of petitioners in Lucknow on the pretext of offering some reconciliation. Naturally, the father would have not acquainted with the habit and requirement of the child for his nourishment, his care and requirements.

82. In his counter affidavit father emphatically stated his rights as natural guardian of the child to retain his custody and protested the removal of custody from him for the purpose repatriating the child to the custody of his mother again. He has also stated about the joint family who took responsibility of upbringing the child, caring him with love and affection but as the love and affection of a mother towards his child cannot be substituted from any others love and affection, the child is bound to loose her mother, even the father has stopped him seeing the mother, despite order of the court. The child is admittedly below the age of five years much tender in age approximately two years and he needs a lot of love from his mother. A Sanskrit Shlok for the requirement of a growing child since his birth is quoted hereunder:-

Ykky;sRk~ iapo"kkZf.k

n'ko"kkZf.k rkM;sr~

izkIrs rq "kksM'ks o"kZs iq=a

fe=onkpjsr~A

Meaning thereby, upto the age of five, love your child a lot, upto the age of ten be strict with him but when the child reaches the age of 16, treat him like a friend.

83. In the judgment above cited time and again it is held by Hon'ble Apex Court that the custody of a minor child primarily be decided not on consideration of legal right of the parties but on the sole and predominant criteria what would best served for the interest of the child. The word "welfare" must be taken in widest sense the moral and religious welfare of the child must be consider as well as its physical well-being. In considering the welfare the ties and bond with a child is natural cannot be substituted by any other thing like compassion, comfort or care. In the present case, the counter affidavit of father has repeated in so many words his competency with regard to physical comfort and financial support to the child as well as the love and care, the child attaining from the joint family. In Gaurav Nagpal (Supra), Hon'ble Supreme Court has observed that simply because the father loves his children does not necessarily lead to the conclusions that the welfare of the children would be better promoted by granting their custody to him.

(vii) Conclusion

84. Here, in the present case the detention of the minor child by the 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 the production of child and even to facilitate the meeting of the mother with the child were flouted over by the father. This is enough to show that father not only has taken away the child illegally from the custody of mother but also he had not left any opportunity for the child to see his mother or the mother to see her child. This conduct of the father if taken with the facts of differences between the husband and wife i.e., the mother of the child by reason of which they are separately residing and the fact that the 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 the demand of dowry and abduction of the child, there is reason to believe that father in furtherance of his malice towards mother will also make brain wash of the child towards his mother that would not be in the interest and welfare of the child. The mother is competent enough to take care, maintenance and upbringing of the child with the love and affection. She deserves to have custody of the child removing the same from the father.

85. In view of the above circumstances, the writ of habeas corpus is required to be issued to opposite party no.3 to produce the child before this Court on 20.12.2021 for handing over the same to the petitioner no.2 (mother), however, he will be at liberty to get finally decided his rights of exclusive custody as guardian by the family court or court of Guardians and Wards Act which are competent to declare the same in the welfare of the child on the basis of evidences produced before the said courts.

86. Opposite party no.3 is directed to produce the child in the court at 2:00 p.m. on 20.12.2021 for handing over the custody of the child to the petitioner no.2 (mother). The order regarding the visitation rights of opposite party no.3 will be passed after the child is produced in the court.

87. The opposite party no.2, S.H.O. Police Station Aliganj, Lucknow is directed to ensure the production of child alongwith opposite party no.3 in the court on the date fixed for implementation of the order. The expenses for the journey with companion if any deposited in the court pursuant to the order dated 20.1.2021 still remains unexhausted which shall be paid to the opposite party no.3 by the Senior Registrar of the court after handing over the child by the opposite party no.3 to petitioner no.2 (mother).

88. The instant writ petition of habeas corpus is disposed of in the above said terms.

89. Office is directed to list for implementation of the order on 20.12.2021.

90. The Senior Registrar of the court is directed to promptly serve the copy of the judgment to the opposite party no.3 in person in addition to the service in ordinary process through e-mail also and to the Superintendent of Police, Dhanbad for facilitating the implementation of order through his official Fax and e-mail.

91. The opposite party no.2, S.H.O., Police Station Aliganj, Lucknow shall get copy of the order promptly and constitute a police team to recover the child with opposite party no.3, so as to ensure the production of the child before the court on the date of implementation.

Order Date :- 14.12.2021

Gaurav/-