Km. Vanya Rastogi vs State Of U.P. Thru. Secy. Home Lko. And 3 ...
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Allahabad High Court

Km. Vanya Rastogi vs State Of U.P. Thru. Secy. Home Lko. And 3 ... on 7 November, 2025

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 

 

 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
HABEAS CORPUS WRIT PETITION No. - 67 of 2025
 

 
Km. Vanya Rastogi
 

 

 
..Petitioner(s)
 

 

 

 

 
Versus
 

 

 

 

 
State of U.P. Thru. Secy. Home Lko. and 3 others
 

 

 
..Respondent(s)
 

 

 
Counsel for Petitioner(s)
 
:
 
Sanjay Kumar Singh, 
 
Counsel for Respondent(s)
 
:
 
G.A., Avinash Kumar Srivastava
 

 

 
Court No. - 13 
 

 
HON'BLE SAURABH LAVANIA, J.

1. Rejoinder affidavit filed today is taken on record.

2. Heard Dr. Sanjay Kumar Singh, learned counsel for the petitioner, learned AGA for the State as well as Shri Avinash Kumar Srivastava, learned counsel for the opposite party No.4 namely Rajesh Kumar Rastogi and perused the record.

3. The present Habeas Corpus petition has been filed seeking following main relief(s):-

"i. a writ, order or direction in the nature of Habeas Corpus commanding the opposite parties to produce the corpus of detenue/petitioner i.e. Km. Vanya Rastogi before this Hon'ble Court and further she be permitted to accompany his father in the interest and wellbeing of minor Km. Vanya Rastogi.

ii. any other order or direction which this Hon'ble Court may deem, fit, just and proper may also kindly be passed in favour of the petitioner."

4. Brief facts of the case as appears from the record are as under :-

(i) The marriage of Jitendra Rastogi, father/natural guardian of the detenue namely Km. Vanya Rastogi, and Kalyani @ Shailly, the daughter of the opposite party No.4 namely Rajesh Kumar Rastogi, was solemnized as per Hindu rites and rituals on 12.12.2019.

(ii) Out of the wedlock of Jitendra Rastogi and Kalyani @ Shailly the detenue (Km.Vanya Rastogi) was born on 13.06.2022.

(iii) Daughter of the opposite party No.4, namely Kalyani @ Shailly died on 27.07.2024.

(iv) In connection with the death of Kalyani @ Shailly an F.I.R. was lodged by the opposite party No.4 which was registered as F.I.R./Case Crime No.279/2024, under Sections 498-A, 304-B I.P.C. and Section 3/4 of the D.P. Act at Police Station- P.G.I., District - Lucknow.

(v) In the aforesaid case crime, Jitendra Rastogi has already been released on bail in terms of the order dated 29.08.2024, passed by this Court in Criminal Misc. Application No.9200 of 2024 (Jitendra Rastogi Vs. State of U.P.).

(vi) After lodging of the F.I.R. the applicant was apprehended/arrested and was sent to jail on 03.05.2024 and the custody of the minor was taken by the maternal grand parents.

5. In the aforesaid background of the case, present habeas corpus petition has been filed seeking the relief(s) quoted above.

6. The submission of the learned counsel for the petitioner based upon the averments made in the present petition as also the rejoinder affidavit is that the daughter of the opposite party No.4 was a patient of Epilepsy, Acute Anxiety and Depression. Her treatment was going on and the papers of the treatment are placed on record along with supplementary affidavit. He further submits that the daughter of the opposite party No.4/deceased had committed suicide on account of aforesaid diseases but a false and concocted F.I.R. has been lodged. The father of the detenue (Jitendra Rastogi) has been granted anticipatory bail on an application filed by the Jitendra Rastogi by this Court. The detenue is daughter of Jitendra Rastogi, aged about two and half years and and she can very well be maintained by her father, whereas she is being kept by her Nana, who is unable to maintain her.

7. It is next submitted that wife of petitioner-Jitendra Rastogi was suffering from psychiatric psychopathological diseases namely Epilepsy, Acute Anxiety and Depression since year 2013, having chief complaints as persistent feeling of sadness, lack of motivation, feelings of hopelessness, remains isolated and Episodes of seizures. As per Psychological Testing Report the deceased often says that (इधर बहुत दुखी है' मन, कुछ भी करने की इच्छा नहीं होती, नींद ज्यादा आती है, कोई मुझे हर्ट करना चाहता है।). The relevant document has been annexed as Annexure No.5 to the writ petition.

8. It is also submitted that after marriage in year 2019, father of detenue/petitioner carried out continuous treatment of deceased from renowned expert doctors of the Lucknow City i.e. Dr. Gopal Poduval and Dr. Umer Mushier of Apolo Hospital, Dr. Atul Agrawal of K.G.M.U. & Dr. Sunil Pradhan, recipient of Padma Shri Award, S.G.P.G.I, Lucknow. Till the day of incident, mother of detenue/petitioner was under treatment of Dr. Atul Agarwal, renowned neuro physician of Lucknow City (Annexure No.3 of writ petition). When O.P. No.4 did not succeed in bargaining from deponent then he lodged the F.I.R. after delay of 5 days. Thus whole prosecution story is under grey area as well as for abuse of process of court for ulterior motive.

9. Learned counsel for the petitioner further submitted that elder brother of Jitendra Rastogi, father of the detenue, and his wife has keen love and interest in detenue/petitioner. Both the brothers are living in joint family and are doing joint business of jewellery. After death of wife of petitioner-Jitendra Rastogi, the brother of petitioner-Jitendra Rastogi and his wife went to the O.P.No.4 many times to bring detenue, however O.P.No.4 refused. The petitioner-Jitendra Rastogi after releasing on bail from jail also went to O.P.No.4 to bring his daughter/detenue to his home, however O.P.No.4 denied. Jitendra Rastogi is highly educated person and has reputed shop of jewellery named as M/s. Manish Jewellers placed in Telibagh, running for more than twenty-five years. It is Jitendra Rastogi-father who has best claim over the detenue being Natural Guardian. There had been no allegation of any matrimonial dispute, when the mother of Vanya was alive, not a complaint of abuse perpetrated against his wife. Thus, Jitendra Rastogi, father/natural guardian and who is well earning in business and educated and there is nothing standing against his legal right, as a natural guardian and legitimate desire to have the custody of his child. The welfare of detenue would be best served if custody is given to deponent father. The assets and financial conditions of O.P.No.4 are not sound. O.P. No.4 have three brothers and the details of land shown on page no.11 & 12 of counter affidavit are very limited in respect of a large family. The G.S.T. Registration Certificate presented by O.P. No.4 on page no.10 of the counter affidavit is mere registration certificate, it does not reveal any sound flourishing financial condition of O.P. No.4. The copies of Trading and Profit & Loss Account as well as Partners Capital A/C of Maneesh Jewellers has been annexed as Annexure No.R.A.1 & R.A.2.

10. It is also submitted that detenue is residing with opposite party no. 4 and now she has to be admitted in a Play School for her overall development to get admission in good school at Lucknow and as such, father having sufficient means, can very well look after the welfare of detenue by getting her admitted in good school and by providing good civic amenities, as such, this Hon'ble Court may extend the judicial arm in the interest and wellbeing of minor detenue and permit the father to accompany her.

11. The next submission of learned counsel for the petitioner is that in the tuff era of competition the overall development of child by giving good standard of education and the civil facilities is the basic requirement of life and father of detenue having business can very well take care of detenue specially in the circumstances when detenue is about to attain the school going age having his date of birth as 13.06.2022.

12. Learned counsel for the petitioner has also submitted that the opposite party no. 4 is threatening that if father of detenue tries to meet her, he will have to face dire consequences. The detenue has been forcibly detained by opposite party no. 4, as such detenue is being deprived of her personal liberty guaranteed as fundamental rights enshrined in Article 21 of Constitution of India and detenue is being deprived of love and affection of her father.

13. Learned counsel for the petitioner, in support of his submissions has placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Vivek Kumar Chaturvedi & Anr. Vs. State of U.P. and Ors., 2025 INSC 159. The relevant paragraphs (Paras 7, 10 and 11) of the judgment are extracted herein under :-

"7. It has to be specifically noticed that in Tejaswini Gaud and others, this court had permitted the invocation of the extraordinary remedy seeking custody of the child under Article 226 of the Constitution of India since the custody was sought by the father, the natural guardian of the minor child, from the sister and brother of the mother, who did not have any legal right to claim the custody of the child. Gautam Kumar Das' relied on Tejaswini Gaud to enable the natural guardian, the father, custody of a minor child, who was with the maternal aunts; in a petition under Article 226 of the Constitution of India. Quoting Nirmala it was also held that there can be no hard and fast rule insofar as the maintainability of a Habeas Corpus petition relating to custody of minor children; which would depend on the facts and circumstances of each case.

10. We cannot but observe that the learned Single Judge has not endeavored to elicit the child's attitude towards his father. Admittedly, the child, after his birth, was with his parents for about 10 years till the death of his mother. He was separated from the father in 2021 and has been living with his grand-parents, who cannot have a better claim than the father, who is the natural guardian. There is no allegation of any matrimonial dispute when the mother of the child was alive nor a complaint of abuse perpetrated against the wife or son. The father, the natural guardian, we reiterate, is well employed and educated and there is nothing standing against his legal rights; as a natural guardian, and legitimate desire to have the custody of his child. We are of the opinion that the welfare of the child, in the facts and circumstances of this case, would be best served if custody is given to the father.

11. However, we cannot ignore the fact that the child did not have the company of the father for more than three years and the child is now with the grand-parents and his academic year is coming to an end; pursuing the 7th standard in a school near the residence of the grand-parents. In the above circumstances, to permit the child to complete the academic year, we direct the child to be retained in the custody of the grandfather till 30.04.2025. While the child is continuing in the custody of the grand-parents, we permit him to be taken by the father; the appellant-herein, on alternate weekends to reside in his paternal house. The child shall be taken on the evening of Friday or the morning of Saturday and returned on the evening of Sunday. This arrangement shall continue upto 30.04.2025 till the custody of the child is handed over to the father; on 01.05.2025 in the presence of the jurisdictional Station House Officer. The grand-parents shall also have visitation rights, post-handing over of custody and they shall be permitted to take the child to their residence on every weekend in which the second Saturday falls, starting from June, 2025; which arrangement shall continue for an year and then, as per the desire of the child. The Guardian O.P. filed before the jurisdictional Family Court shall stand closed."

14. Learned counsel for the petitioner has also placed reliance upon the judgment passed in the case of Gautam Kumar Das Vs. State (NCT fo Delhi) & Ors., [2024 (4) JIC 856 (SC)] . The relevant paragraphs of the judgment (paras 12, 13 and 16) are extracted herein under :-

"12. Insofar as the fitness of the appellant is concerned, he is well educated and currently employed as Assistant General Manager (Class A Officer) in Central Warehousing Corporation, Delhi. The appellant's residence is also in Delhi whereas respondent No. 6 to whom the custody of the minor child was handed over to by respondent No. 5 is residing at a remote village in West Bengal. Apart from taking care of his children, the appellant can very well provide the best of the education facilities to his children. The child Sugandha Das, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother. At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child.

13. In our opinion, merely because of the unfortunate circumstances faced by the appellant as a result of which, re-spondent Nos. 5 and 6 were given the temporary custody of the minor child Sugandha Das and only because they looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian.

16. However, it is to be noted that a common thread in all the judgments concerning the custody of minor children is the paramount welfare of the child. As discussed hereinabove, we find that, apart from the appellant being the natural guardian, even in order to ensure the welfare of the minor child, she should live with her natural family. The minor child is of tender age, and she will get adapted to her natural family very well in a short period. We are therefore inclined to allow the appeal."

15. The prayer is to allow the petition.

16. On the other hand, learned counsel for the opposite party No.4 has opposed the prayer. It is submitted that the Jitendra Rastogi on bail is facing trial in the Case Crime No. 279 of 2024, under Sections 498-A, 304-B I.P.C. and Section 3/4 of the D.P. Act and any observation by this Court on the issue related to death of Kalyani @ Shailly the daughter of opposite party No.4 would prejudice the case of the prosecution before the trial court. At this stage only it has to be seen as to whether the custody of the child, in the peculiar facts of the case which includes the fact that Jitendra Rastogi is facing trial for the offence under Section 498-A, 304-B I.P.C. and Section 3/4 of the D.P. Act, can be given to the Jitendra Rastogi as according to the settled principle the welfare of the child is paramount for providing custody. In this matter though the financial condition of the father-petitioner Jitendra Rastogi is sound. However, the fact remains that he is facing trial, as such the custody of the child should not be given to the father. If the custody of the minor is given to Jitendra Rastogi, father of the detenue/minor, then in that eventuality the immature brain of the child would be affected, which would be fatal to the development of the child and that would be detrimental to the welfare of the child.

17. In support of his submissions, learned counsel for the opposite party No.4 has placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Nil Ratan Kundu & Anr. Vs. Abhijit Kundu, (2008) 9 SCC 413. The relevant paragraphs referred are extracted herein below :-

"24. In Halsbury's Laws of England, 4th Edn., Vol. 24, Para 511 at p. 217, it has been stated:

511. Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father. (emphasis supplied)

It has also been stated that if the minor is of any age to exercise a choice, the court will take his wishes into consideration. (Para 534, p. 229).

25. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ court is welfare of the child.

26. In Habeas Corpus, Vol. I, p. 581, Bailey states:

The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate.

It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be in the best interest of a child to grant its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.

27. In McGrath (infants), Re [(1893) 1 Ch 143 : 62 LJ Ch 208 (CA)] Lindley, L.J. observed : (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 or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded. (emphasis supplied)

American Law

28. The law in the United States is also not different. In American Jurisprudence, 2nd Edn., Vol. 39, Para 31, p. 34, it is stated:

As a rule, in the selection of a guardian of a minor,the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield. (emphasis supplied)

In Para 148, pp. 280-81, it is stated:

Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration.

An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody.In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment.

(emphasis supplied)

29. In Howarth v. Northcott [152 Conn 460 : 208 A 2d 540 : 17 ALR 3d 758 (1965)] it was stated:

In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, asparens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity.

It was further observed:

The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, butthe primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate.

(emphasis supplied)

It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ issued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child.

Indian Law

30. The legal position in India follows the above doctrine. There are various statutes which give legislative recognition to these well-established principles. It would be appropriate if we examine some of the statutes dealing with the situation. The Guardians and Wards Act, 1890 consolidates and amends the law relating to guardians and wards. Section 4 of the Act defines minor as a person who has not attained the age of majority. Guardian means a person having the care of the person of a minor or of his property, or of both his person and property. Ward is defined as a minor for whose person or property or both, there is a guardian.

31. Chapter II (Sections 5 to 19) relates to appointment and declaration of guardians. Section 7 deals with power of the court to make order as to guardianship and reads as under:

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.

32. Section 8 of the Act enumerates the persons entitled to apply for an order as to guardianship. Section 9 empowers the court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of court. Section 17 is another material provision and may be reproduced:

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 the minor is old enough to form an intelligent preference, the court may consider that preference.

			*        *         *
 
(5) The court shall not appoint or declare any person to be a guardian against his will.                                             (emphasis supplied)
 

33. Section 19 prohibits the court from appointing guardians in certain cases.

34. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.

35. The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 1956 Act) is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines minor as a person who has not completed the age of eighteen years. Guardian means a person having the care of the person of a minor or of his property or of both his person and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of the 1890 Act.

36. Section 6 enacts as to who can be said to be a natural guardian. It reads thus:

6. Natural guardians of a Hindu minor.The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are

(a) in the case of a boy or an unmarried girl the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

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

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section

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

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Explanation.In this section, the expressions father and mother do not include a stepfather and a stepmother.

37. Section 8 enumerates powers of a natural guardian. Section 13 is an extremely important provision and deals with the welfare of a minor. The same may be quoted in extenso:

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.

(emphasis supplied)

38. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.

39. The principles in relation to custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the welfare of the child and not rights of the parents under a statute for the time being in force.

Case law

40. The aforesaid statutory provisions came up for consideration before Indian courts in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as the paramount consideration.

41. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom 103 : ILR 1941 Bom 455] , the High Court of Bombay stated : (AIR p. 105)

It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration;

(emphasis supplied)

42. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] , this Court held that the object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of the ward's health, maintenance and education. Thepoweranddutyof the court under the Act is the welfare of the minor. In considering the question of welfare of a minor, due regard has of course to be given to the right of the father as natural guardian, but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. The Court further observed that 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. The Court also observed that children are not mere chattels, nor are they toys for their parents. The absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions, must yield to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of 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 the welfare of the minor children and the rights of their respective parents over them.

43. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544] , this Court reiterated that the only consideration of the court in deciding the question of custody of a minor should be the welfare and interest of the minor and it is the special duty and responsibility of the court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.

44. In Surinder Kaur Sandhu v. Harbax Singh Sandhu [(1984) 3 SCC 698 : 1984 SCC (Cri) 464] this Court held that Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. (See alsoElizabeth Dinshawv.Arvand M. Dinshaw[(1987) 1 SCC 42 : 1987 SCC (Cri) 13] andChandrakala Menonv.Vipin Menon[(1993) 2 SCC 6 : 1993 SCC (Cri) 485] .)

45.Recently, inMausami Moitra Ganguliv.Jayant Ganguli[(2008) 7 SCC 673 : JT (2008) 6 SC 634] , we have held that the first and the paramount consideration is the welfare of the child and not the right of the parent. We observed : (SCC p. 678, paras 19-20)

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 child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

46. In Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi [(1992) 3 SCC 573 : 1992 SCC (Cri) 778] custody of two minor children was sought by the father as also by the maternal uncle. The mother had died an unnatural death and the father was facing charge under Section 498-A of the Penal Code, 1860. The children were staying with their maternal uncle. Before this Court, both the children expressed their desire to stay with their maternal uncle and not with the father. Considering the facts and circumstances, and bearing in mind the case pending against the father, and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated : (SCC p. 575, para 7)

7. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.

47. The counsel also invited our attention to decisions of various High Courts. InTarun Ranjan Majumdarv.Siddhartha Datta[AIR 1991 Cal 76] the High Court considered Sections 7, 12 and 25 of the 1890 Act. It held that when the court is of the opinion that some order is required to be passed with regard to custody of a ward, it can be passed considering the welfare of the ward. It was further observed that even if a child is in the custody of one who has no legal right thereto, and its welfare is reasonably looked after in a manner in which it should be, the legal guardian cannot claim an order of return or recovery of custody merely on the strength of his legal right or financial soundness.

48.InBimla Deviv.Subhas Chandra Yadav Nirala[AIR 1992 Pat 76] the Court held that the paramount consideration should be welfare of the minor and the normal rule (the father is natural guardian and is, therefore, entitled to the custody of the child) may not be followed if he is alleged to have committed murder of his wife. In such case, appointment of the grandmother as guardian of a minor girl cannot be said to be contrary to law. Construing the expression welfare in Section 13 of the 1956 Act liberally, the Court observed : (AIR p. 79, para 8)

8. It is well settled that the word welfare used in this section 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.

(emphasis supplied)

49.InGoverdhan Lalv.Gajendra Kumar[AIR 2002 Raj 148] the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.

50.Again, inM.K. Hari Govindanv.A.R. Rajaram[AIR 2003 Mad 315] the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to human touch. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.

51.InKamla Deviv.State of H.P.[AIR 1987 HP 34] the Court observed : (AIR pp. 37-38, para 13)

13. the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. 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 itsparens patriaejurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.

Principles governing custody of minor children

52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decidedsolelyby interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercisingparens patriaejurisdiction and is expected,naybound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.

Orders of courts below not in consonance with law

53. Having given anxious and thoughtful consideration to the facts of the case and applying the well-settled principles referred to above, we are constrained to observe that the orders passed by the courts below are short of the fundamental principles on more than one ground.

54. The approach of both the courts is not in accordance with law and consistent with the view taken by this Court in several cases. For instance, both the courts noted that the appellants (maternal grandparents) are giving all love and affection to Antariksh, but that does not mean that Antariksh will not get similar love and affection from his father. It was also observed that the appellants no doubt got Antariksh admitted to a well-reputed school (St. Xavier's Collegiate School, Kolkata), but it could not be said that the father will not take personal care of his son. Both the courts also emphasised that the father has the right to get custody of Antariksh and he has not invoked any disqualification provided by the 1956 Act.

55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

56. In Rosy Jacob [(1973) 1 SCC 840] this Court stated : (SCC p. 854, para 15)

15. The contention that if the husband [father] is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading.

It was also observed that the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The father's fitness cannot override considerations of the welfare of the minor children.

57. In our opinion, in such cases, it is not the negative test that the father is not unfit or disqualified to have custody of his son/daughter that is relevant, but the positive test that such custody would be in the welfare of the minor which is material and it is on that basis that the court should exercise the power to grant or refuse custody of a minor in favour of the father, the mother or any other guardian.

58. Though this Court in Rosy Jacob [(1973) 1 SCC 840] held that children are not mere chattels nor toys, the trial court directed handing over custody of Antariksh immediately by removing him from the custody of his maternal grandparents. Similarly, the High Court, which had stayed the order of the trial court during the pendency of appeal, ordered handing over Antariksh to his father within twenty-four hours positively. We may only state that a child is not property or commodity. To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem.

59. At another place, the trial court noted that a criminal case was pending against the father but the pendency of the case did not ipso facto disqualify him to act as the guardian of Antariksh. The court stated, If ultimately the petitioner (father) is convicted and sentenced in that case, the OPs (maternal grandparents of Antariksh) will have the scope to inform the fact to the court and to pray for change of the court's decision. The court made a comparative study and observed that it had no hesitation in holding that the present and future of Antariksh would be better secured in the custody of his father. It then stated:

Antariksh should be, therefore, immediately removed from the custody of OPs (maternal grandparents) to the custody of the petitioner (father).

(emphasis supplied)

60. The appellants herein challenged the decision of the trial court by approaching the High Court. With respect, the High Court also committed the same error by not applying the correct principles and proper test of welfare of minor Antariksh as the paramount consideration. It, no doubt, referred to the principle, but held that the trial court was right in handing over custody of Antariksh to the father.

61. The High Court then proceeded to state:

We have gone through the evidence adduced by both sides and also heard the child in order to decide the question of the welfare of the said child.During our conversation with the child we have observed with great anxiety that the child has been tutored to make him hostile towards his father. In this connection, it is worth mentioning here that the learned court below also held that the OPs wanted to wipe out the existence and identity of the father from the mind of the petitioner's son and if it is so, then it may be disastrous for the future of the petitioner's son.

(emphasis supplied)

We are sorry to say that there is no material on record as to on what basis the above inference was drawn or opinion was formed by the High Court.

62. Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.

63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the character of the proposed guardian. In Kirtikumar [(1992) 3 SCC 573 : 1992 SCC (Cri) 778] , this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle.

64. Thus, a complaint against the father alleging and attributing the death of the mother, and a case under Section 498-A IPC is indeed a relevant factor and a court of law must address the said circumstance while deciding the custody of the minor in favour of such a person. To us, it is no answer to state that in case the father is convicted, it is open to the maternal grandparents to make an appropriate application for change of custody. Even at this stage, the said fact ought to have been considered and an appropriate order ought to have been passed."

18. This court considered the facts of the case and submissions advanced by learned counsel for the parties as also the observations made in judgment(s) referred above.

19. Upon due consideration of the aforesaid including the observations made by the Hon'ble Apex Court in paras 63 and 64 of the judgment passed in Nil Ratan Kundu (Supra), wherein the Hon'ble Apex Court observed that "In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the character of the proposed guardian. In Kirtikumar [(1992) 3 SCC 573 : 1992 SCC (Cri) 778] , this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle. 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" and also the fact that Jitendra Rastogi, father of the detenue, is facing trial for the offence under Sections 481-A, 304-B I.P.C. and Section 3/4 of the D.P. Act, this court is not inclined to allow the prayers sought in the instant petition.

20. For the aforesaid, the instant habeas corpus petition is dismissed. No order as to costs.

(Saurabh Lavania,J.)

November 07, 2025

ML/-