Yashika Verma(Minor) vs State Of U P And 4 Others
2023 Latest Caselaw 1682 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 897 of 2022
 

 
Petitioner :- Yashika Verma(Minor)
 
Respondent :- State Of U P And 4 Others
 
Counsel for Petitioner :- Manoj Kumar Srivastava,Prem Narayan Singh
 
Counsel for Respondent :- G.A.,Ashish Mohan Srivastava,Ramesh Kumar Pandey
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

Counter affidavit filed on behalf of private respondents is taken on record.

Heard Sri Anil Srivastava, learned senior counsel assisted by Sri Prem Narayan Singh, learned counsel for the petitioner, Sri Ashish Mohan Srivastava, learned counsel for private respondents and learned AGA for the State.

The instant habeas corpus writ petition has filed on behalf of corpus Yashika Verma aged about five and half years through father Anshul Verma with prayer to issue a writ, order or direction in the nature of habeas corpus directing the respondents no. 2 to 5 to produce the corpus before the Court and thereupon a direction may be issued to the respondents to hand over the custody of the child to her biological father.

Learned counsel for the petitioners submits that admittedly corpus Yashika Verma is minor girl born out of wedlock of her father, petitioner Anshul Verma, with her wife Deepa Verma (respondent no. 2); corpus is presently in the custody of her mother Deepa Verma (respondent no. 2); the corpus Yashika Verma was born on 13.5.2017; some marital discord arose between the Anshul Verma and Deepa Verma, therefore, the respondent no. 2 shifted to her parental place alongwith corpus; the petitioner Anshul Verma is working at Udham Singh Nagar. However, both contesting parties are native of Prayagraj (Allahabad) and the corpus is lying in the custody of her mother at Prayagraj. Although present petition is filed with prayer to produce the corpus before the Court and transfer her custody from mother to father of the corpus in the interest of child. However, at present, prayer in the present petition is confined only to grant visitation rights to father Anshul Verma in respect of the corpus. Parents of respondent no. 2 are not alive.

It is further submitted that corpus was produced before the Court by the private respondents on 4.1.2023 but the matter could not be taken on that date by the Court; the petitioner had also deposited Rs. 20,000/- as per direction of this Court for production of the corpus. As the prayer is confined the visitation rights only, there is no need at present to produce the corpus again before the Court.

It is contended on behalf of the petitioner that in the matter, welfare of child is of paramount consideration and the child needs care, love and affection of both parents for her all around development, therefore, at least visitation rights be granted to father, defacto petitioner.

Per contra, learned counsel for private respondents submits that deponent in the counter affidavit is mother of the child, who is impleaded as respondent no. 2 in the present petition; she was subjected to cruelty and ill-treatment by her husband, which compelled her to leave company of her husband and shifted to her parental place; petitioner does not have much affection or feeling of responsibility towards his daughter and his wife whom he would often throw out of his house during the cold night without caring as to how they would survive in the freezing temperature at the place of petitioner Anshul Verma. It is further submitted that petitioner even does not deserve visitation rights keeping in view his past conduct and behavior towards his wife and child.

Learned counsel for the petitioner placed reliance upon the judgement of Hon'ble Apex Court in the case of Yashita Sahu vs. State of Rajasthan and others reported in (2020) 0 AIR (SC) 577 wherein Hon'ble Apex Court has considered the question of custody and visitation rights between the parents regarding child born out of wedlock, which is observed as under:-

9. 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 vs. Arvand M. Dinshaw & Ors.1, Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. 2 and Lahari Sakhamuri vs. Sobhan Kodali3 among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellantwife that the writ petition before the High Court of Rajasthan was not maintainable.

10. We need not refer to all decisions in this regard but it would be apposite to refer to the following observations from the judgment in Nithya Anand Raghavan (supra): ?46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in 1 (1987) 1 SCC 42 2 (2017) 8 SCC 454 3 (2019) 7 SCC 311 each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private Respondent named in the writ petition)??

17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.

18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.

20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.

21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.

22. In addition to ?Visitation Rights?, ?Contact rights? are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, email or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 510 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each."

Learned counsel for the petitioner also placed reliance on the judgement of this Court in Master Advait Sharma vs. State of U.P. and others decided on 19.2.2021 in Habeas Corpus Writ Petition no. 450 of 2020.

I have gone through the judgement of this Court wherein this Court placed reliance of above judgement of Hon'ble Apex Court in Yashita Sahu (supra) in para-14.

Considering the rival submissions of learned counsel for the parties and perusal of materials on record as well as judgements cited as above, legal position is crystal clear that claim of custody by the mother over minor child lies on better footing in comparison to father of child and if the child is lying in custody of her mother due to marital discord and strained relationship between the spouse, the child cannot be said in illegal custody. However, visitation rights claimed by the father of the child cannot be ignored altogether as minor child needs care, protection and affection of both parents and in such matter paramount consideration is overall welfare of the child. In the present case the parents are native of Prayagraj and this Court is of the considered opinion that visitation rights may be granted to defacto petitioner, father of the corpus to meet her minor child Yashika Verma.

It is directed that respondents no. 2 to 5 will facilitate in the visit of Anshul Verma, father of the corpus to his child, who is lying in custody of private respondents once in a month of first or fourth Sunday in day hour from 11:00 AM to 3:00 PM subject to prior arrangement between the father and mother of the child. Learned counsel for both the parties requested that the visit with child may be directed to be scheduled at some public place. The visit shall take place at Chandra Sekhar Azad Park (Company Garden), Prayagraj on aforesaid term. It is made clear that the same shall be postponed if the examinations of the child are underway.

It is further directed that the amount so deposited as per the direction of the Court, be released in favour of private respondent no. 2 mother of the child by the registry of this Court.

The present habeas corpus writ petition is disposed off in the light of above directions.

Order Date :- 17.1.2023

Dhirendra/