Bombay High Court
Rakesh Tulsidas Rathod vs Jayraj Vishram Vapikar And Ors on 1 February, 2022
Bench: S.S. Shinde, N. J. Jamadar
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 579 OF 2021
Rakesh Tulsidas Rathod
aged 39 years, Indian Inhabitant,
Permanently residing at A/402, Keavya
Heights CHS Ltd., Near J. H. Poddar
School, Bhayandar (West), Dist. Thane
Pin Code 401 101. ...Petitioner
Versus
1. Jayraj Vishram Vapikar
aged 66 years
2. Sachin Jayraj Vapikar
aged 42 years
(both residing at C/604, Raj Hill
Building, Dattapada road, opp. Lohar
Suthar Hall, Borivali (East),
Mumbai - 400 066.
3. State of Maharashtra
(through the Public Prosecutor, High
Court (A.S.) Mumbai). ...Respondents
Mr. Subhash Jha, i/b Law Global, for the Petitioner.
Mr. Tejash Dande, a/w Mr. Bharat Gadhavi, Mr. Vishal Navale,
Mr. Ankit Aghade, Ms. Tushna Shah, i/b Tejash Dande
& Asso., for Respondent nos.1 and 2.
Ms. Mallika Ingale, Appointed as Amicus Curie.
Mrs. S. D. Shinde, APP for the State/Respondent no.3.
CORAM: S. S. SHINDE &
N. J. JAMADAR, JJ.
RESERVED ON: 29th SEPTEMBER, 2021
PRONOUNCED ON: 1st FEBRUARY, 2022
JUDGMENT:- [PER : N. J. JAMADAR, J.]
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsels for the parties, heard finally.
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2. This petition under Article 226 of the Constitution of India
is instituted for writ of habeas corpus to produce Master 'J', the
son of the petitioner, who is alleged to be in the illegal custody of
respondent nos.1 and 2, the father and brother, respectively of
late Neeta, the wife of the petitioner; and for direction to the
respondents to hand over the custody of Master 'J' to the
petitioner.
3. Shorn of unnecessary details, the background facts
leading to this petition can be stated as under:
(a) The marriage of the petitioner was solemnized with
Neeta, the daughter of respondent no.1, on 24 th May, 2011 at
Vapi, Gujarat, in accordance with the Hindu Vedic Rites and
Customs. Post marriage, the petitioner and Neeta resided at
Bhayandar, District Thane. On 6th July, 2012, they were blessed
with son Master 'J'. Neeta initially worked as a Lecturer in a
Sydenham College and after birth of Master 'J' Neeta joined
Abhinav College of Arts, Commerce and Science at Bhayandar.
In the year 2015, Master 'J' was admitted in RBK School, at Mira
Road (E), Thane. The petitioner is M.B.A. He is gainfully
employed with a prominent builder, at Mumbai.
(b) In the month of May, 2017, Neeta was diagnosed with
cancer. Neeta underwent treatment at Bombay Hospital and
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HCG Apex Cancer Centre, Dahisar (W). On 8 th May, 2019, Neeta
passed away.
(c) The petitioner asserts that suppressing the condition
of Neeta, respondent nos.1 and 2 forced the petitioner to admit
Master 'J' in St. Francis School, Borivali (W) as respondent nos.1
and 2 were residing at Borivali. After the death of Neeta, the
petitioner got the admission of Master 'J' at St. Francis School,
Borivali, cancelled, and readmitted him in RBK School at Mira
Road. Respondent nos.1 and 2 did not allow the Master 'J' to
attend RBK School and instead they got Master 'J' admitted in
C. P. Goenka School, Borivali, without the consent of the
petitioner and obtaining School Leaving Certificate from the
former school. The petitioner claimed to have made repeated
requests to respondent nos.1 and 2 to hand over the custody of
Master 'J' to him. However, respondent nos.1 and 2 refused.
Thus, Master 'J' has been in illegal custody of the respondents
since May, 2019.
(d) Faced with the aforesaid situation, the petitioner
filed Criminal Writ Petition No.5172 of 2019 in this Court. Since
the said petition was not properly drafted and pursued the
petitioner sought to withdraw the said petition. It was further
asserted that, based on legal advise, the petitioner has
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instituted a petition being No.D-74 of 2019, before the Family
Court, Bandra, seeking custody of Master 'J' under the
provisions of Hindu Minority and Guardianship Act, 1956 (the
Act, 1956). However, the petitioner asserts, the said proceeding
before the Family Court being a long drawn process and not an
efficacious remedy, the petitioner is constrained to invoke the
writ jurisdiction of this Court.
4. In the petition, certain allegations are made about the
improper medical treatment of Neeta, alleged suppression of the
condition of Neeta and respondent nos.1 and 2 being not
suitable to be entrusted with the custody of Master 'J'. In
contrast, the petitioner claims to be best situated to have the
custody of Master 'J', being the father and natural guardian.
Respondent nos.1 and 2 are thus not entitled to deprive the
petitioner of his legitimate right to have the custody of Master'J'.
5. Respondent nos.1 and 2 have filed an affidavit-in-reply and
resisted the prayer of the petitioner. Respondent nos.1 and 2
contend that Master 'J' has been residing with respondent nos.1
and 2 since more than five years. They have been taking care of
Master 'J' as well as Neeta till her death. Respondent nos.1 and
2 claimed to have borne entire expenses of the treatment of
Neeta to the tune of Rs.25 to 30 lakh. In contrast, the petitioner
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had paid a marginal amount of Rs.70,000/- only for the
treatment of Neeta. The petitioner had not attended to Neeta.
She was dropped at the place of the respondents after she was
diagnosed with cancer. The petitioner had utterly failed in
discharging his duties as a husband and father.
6. Respondent nos.1 and 2 have categorically denied that
Master 'J' was admitted in St. Francis School against the wishes
of the petitioner. Banking upon a document, namely, Personal
Information Sheet at RBK School, wherein respondent no.1 was
shown as the guardian of Master 'J', duly signed by the
petitioner, respondent nos.1 and 2 assert that Master 'J' has, in
fact, been in the custody of respondent nos.1 and 2 with the
consent of the petitioner. Thus, no case for exercise of
extraordinary jurisdiction under Article 226 of the Constitution
of India is made out. Respondent nos.1 and 2 further contend
that since Master 'J' has been residing with the respondents
almost since his birth, Master 'J' has developed love and
affection towards the respondents. Master 'J' is not willing to
leave the respondent no.1's family. Master 'J' is comfortable in
the environment which he currently finds himself in. And a
direction for transferring the custody of Master 'J' will cause
severe emotional and psychological impact.
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7. Referring to the proceedings instituted by the petitioner in
the Family Court and a petition bearing No.D-56 of 2019
instituted by Urmila, the wife of respondent no.1 (the maternal
grand-mother of Master 'J'), the respondents contend that the
petitioner has resorted to forum shopping after his prayer for
interim custody was rejected by the Family Court. As a
substantive petition for custody is subjudice before the Family
Court, this Court may not entertain a petition under Article 226
of the Constitution of India.
8. Lastly, the respondent nos.1 and 2 assert that the welfare
of Master 'J' would be better subserved if he remains in the
custody of the respondent nos.1 and 2. They are financially well
settled. They have the time, resources, manpower and desire to
bring up Master 'J' in a conducive atmosphere. The respondent
nos.1 and 2 have contested the claim of the petitioner that he is
gainfully employed. It is contended that the petitioner could not
take proper care of late Neeta, inter alia, citing his financial
condition. Nor the petitioner has complied with the order of the
Family Court directing payment of a sum of Rs.5,000/- per
month towards the maintenance of Master 'J', except for a
couple of months. Thus, the petition deserves to be dismissed.
9. An affidavit-in-rejoinder is filed by the petitioner.
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10. As Master 'J' is 9 year old, we interviewed him in chamber.
11. In the light of the aforesaid pleadings and facts, we have
heard Mr. Subhash Jha, the learned Counsel for the petitioner,
Mr. Dande, the learned Counsel for respondent nos.1 and 2 and
Mrs. S. D. Shinde, the learned APP for the State. In the
intervening period, since there was no representation for
respondent nos.1 and 2, we had requested Advocate Mallika
Ingale, to assist the Court. We have heard Ms. Ingale, the
learned Amicus Curie, as well.
12. Mr. Jha, the learned Counsel for the petitioner, at the
outset, strenuously submitted that the peculiarity of the instant
case is that the petitioner, who is the natural guardian is pitted
against the relatives of the wife of the petitioner, who have no
legal right and authority to retain the custody of Master 'J'. Mr.
Jha would urge that the cases where the dispute as to the
custody of a child is essentially between two parents, stand on a
different footing. In the case at hand, no other person can claim
right to the custody of Master 'J'. Can a father be deprived of
the custody of the son, at the behest of the persons, who do not
have any semblance of right, is the question which corps up for
consideration in this petition, urged Mr. Jha. In such a
situation, according to Mr. Jha, the principle of paramountcy of
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welfare of the child is required to be approached from a different
perspective.
13. Per contra, Mr. Dande, the learned Counsel for respondent
nos.1 and 2, assailed the tenability of the petition. Elaborating
the submission, Mr. Dande would urge that the Family court is
seized of the petitions, being Petition No.D-56 of 2019 filed by
respondent no.1's wife Urmila and Petition No.D-74 of 2019 filed
by the petitioner. In Petition No.D-56 of 2019, Consent Terms
were executed by and between the parties for interim access and
interim maintenance, on 23rd October, 2019. Subsequent
thereto, the Family Court has passed a number of orders and
even rejected the prayer of the petitioner for interim custody.
Thus, according to Mr. Dande, since petitioner has already
invoked an efficacious alternate remedy, the instant petition
does not deserve to be entertained.
14. It was further submitted that the very premise of the
petition that the custody of Master 'J' with respondent nos.1 and
2 is illegal, is flawed. In fact, in the wake of Neeta being
diagnosed with cancer, the petitioner himself had brought
Master 'J' to the house of respondent no.1, in the month of April
- 2017. Since then Master 'J' has all along been residing with
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respondent no.1 and his family members. Thus, Master 'J'
cannot be said to be in illegal custody.
15. Taking the Court through the orders passed by the Family
Court, Mr. Dande would further urge that the petitioner has by
his conduct dis-entitled himself from seeking custody of Master
'J'. The petitioner has antagonized Master 'J' and the aggressive,
violent and rude behaviour of the petitioner has further
alienated the child. Mr. Dande would urge that Master 'J' being
a 9 and ½ year old boy, is in a position to make an intelligible
choice. Master 'J' has decisively indicated his preference to be
with respondent no.1 and his family members, where he gets the
desired love and affection. Master 'J' cannot be uprooted from
the environment he is accustomed to and comfortable with,
against his wishes. In any event, in the totality of the
circumstances, the welfare of Master 'J' would be better secured
if the custody is retained with respondent nos.1 and 2.
16. Mr. Dande placed a strong reliance on the judgment of the
Supreme Court in the case of Tejaswini Gaud and other vs.
Shekhar Jagdish Prasad Tewari and others 1 to bolster up the
aforesaid submissions.
1 (2019) 7 Supreme Court Cases 42.
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17. Ms. Ingale, the learned amicus, invited the attention of
the Court to the Personal Information Sheet (Exhibit-A to the
reply) in support of her submission that the material on record
does not indicate that Master 'J' was admitted in school without
the consent of the petitioner. Referring to the acrimonious
disputes between the petitioner and respondent no.1 and his
family members, as manifested in lodging of the reports with
police and allegations and counter allegations, Ms. Ingale would
urge that the claim for custody can only be judged on the
touchstone of the welfare of Master 'J'. The legal right of the
petitioner cannot override the paramountcy of the welfare of the
Master 'J'. Ms. Ingale, relied upon the recent judgment of the
Supreme Court in the case of Yashita Sahu vs. State of
Rajashthan & ors.,2 wherein the concept of paramountcy of
welfare was expounded.
18. Mr. Jha, the learned Counsel for the petitioner, joined the
issue by canvassing a submission that the aforesaid challenges
on behalf of respondent nos.1 and 2 loose sight of the
fundamental fact that the petitioner being the father is the only
natural guardian and the moment respondent nos.1 and 2
refused to hand over the custody of Master 'J' to the petitioner,
2 (2020) 3 SCC 67.
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the same became illegal. In such a situation, according to Mr.
Jha, writ of habeas corpus is the only efficacious remedy. A
father cannot be relegated to the remedy of proceeding before
the Civil/Family Court, in a case, where the persons who do not
have any right whatsoever detain the child. Viewed from this
prospective, the fact that the petitioner had instituted a
proceeding before the Family Court for custody of Master 'J', is
of no consequence, submitted Mr. Jha.
19. To lend support to the aforesaid submission, Mr. Jha
placed strong reliance on the judgments of Allahabad High
Court in the cases of Sukhdeo Rai vs. Ram Chandar Rai,3 Abdul
Aziz Khan vs. Nanhe Khan,4 Vinayak Goyal vs. Prem Prakash
Goayal and others5 and the judgment of this Court in the cases
of Shekhar Jagdish Prasad Tewari vs. State of Maharashtra, 6
Khaled Kamal Hussein Mohamed Kassem An Egyptian Citizen
vs. State of Maharashtra7 and the judgments of the Supreme
Court in the cases of Gohar Begam vs. Suggi alias Nazma
Begam and others8 and Tejasvini Gaud (supra).
3 1924 ILR (ALH) 706.
4 1925 ILR (ALH) 332.
5 1981 Allahabad Law Journal 752.
6 2019 ALL MR (Cri) 2568.
7 2020 Online Bombay 166.
8 AIR 1960 SC 93.
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20. We have given our anxious consideration to the
submissions canvassed across the bar. To begin with, the
question of tenability of the petition, in the peculiar facts of the
case, warrants consideration. We are inclined to proceed on the
premise that Master 'J''s custody was entrusted to respondent
no.1 and his family members, with the consent of the petitioner,
not for the reasons that the allegations and counter-allegations
support such a view but for the sheer weight of the
circumstances. Neeta, the mother of Master 'J' was diagnosed
with cancer in the month of April/May, 2017. Master 'J' was
then hardly five years of age. Neeta, as the record indicates,
stayed at her parental home while she was undergoing
treatment. It is quite natural that Master 'J' continued to be
with Neeta and respondent no.1, since Neeta was diagnosed with
cancer. In this backdrop, in our view, the question as to
whether respondent no.1 and his family members came to have
the custody of Master 'J' lawfully or otherwise, pales in
significance. What bears upon the determination of the
controversy at hand is the refusal of respondent no.1 and his
family members to part with the custody of Master 'J', after
Neeta passed away.
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21. Indubitably, the petitioner being the father of Master 'J' is
the natural guardian under Section 6 of the Act, 1956. There is
no qualm over the natural relationship between the petitioner
and Master 'J' and juridical status of the petitioner.
22. In this context, it would be advantageous to consult the
pronouncement of the Supreme Court in the case of Gohar
Begum (supra). In the said case, a petition for writ of habeas
corpus was filed for recovery of a illegitimate female infant of an
unmarried Sunni Muslim mother. On the date of the
application, the child was less than six years old. The said child
was in the custody of the respondent, which was presumably
with the initial consent of the appellant. In that context, the
Supreme Court after adverting to the principles of
Mohammedan Law, enunciated the legal position as under:
"7. On these undisputed facts the position in law is
perfectly clear. Under the Mohammedan law which applies to
this case, the appellant is entitled to the custody of Anjum
who is her illegitimate daughter, no matter who the father of
Anjum is. The respondent has no legal right whatsoever to
the custody of the child. Her refusal to make over the child
to the appellant therefore resulted in an illegal detention of
the child within the meaning of Section 491. This position is
clearly recognised in the English cases concerning writs of
habeas corpus for the production of infants.
In The Queen v. Clarke (1) Lord Campbell,, C. J., said at p.
193:
"But with respect to a child under guardianship for
nurture, the child is supposed to be unlawfully
imprisoned when unlawfully detained from the custody
of the guardian; and when delivered to him, the child is
supposed to be set at liberty."
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The courts in our country have consistently taken the same
view. For this purpose the Indian cases hereinafter cited may
be referred to. The terms of Section 491 would clearly be
applicable to the case and the appellant entitled to the order
she asked.
8. We therefore think that the learned Judges of the High
Court were clearly wrong in their view that the child Anjum
was not being illegally or improperly detained. The learned
Judges have 'not given any reason in support of their view
and we are clear in our mind that view is unsustainable in
law."
(emphasis supplied)
23. On the remit of a writ of habeas corpus, the Supreme
Court observed as under:
"13. It is further well established in England that in issuing
a writ of habeas corpus a court has power in the case of an
infant to direct its custody to be placed with a certain
person. In The King v. Greenhill (1) Lord Denman, C. J.,
said:
"When an infant is brought before the Court by habeas
corpus, if he be of an age to exercise a choice, the
Court leaves him to elect where he will 'go. If he be not
of that age, and a want of direction would only expose
him to dangers or seductions, the Court must make an
order for his being placed in the proper custody."
See also Queen v. Clarke. In Halsbury's Laws of England,
Vol. IX, Article 1201 at p. 702 it is said;
"Where, as frequently occurs in the case of infants,
conflicting claims for the custody of the same
individual are raised, such claims may be enquired
into on the return to a writ of habeas corpus, and the
custody awarded to the proper person."
Section 491 is expressly concerned with the directions of the
nature of a habeas corpus. The English principles applicable
to the issue of a writ of habeas corpus, therefore, apply here.
In fact the Courts in our country have always exercised the
power to direct under Section 491 in a fit case that the
custody of an infant be delivered to the applicant: see Rama
Iyer v. Nataraja Iyer, Zara Bibi v. Abdul Razzak and
Subbuswami Goundan v. Kamakshi Ammal. If the courts did
not have this power, the remedy under Section 491 would in
the case of infants often become infructuous."
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24. A useful reference, in this context, can also be made to the
judgment of the Supreme Court in the case of Sayed
Saleemuddin vs. Dr. Rukhsana and others, 9 wherein, after
referring to the aforesaid pronouncement in the case of Gohar
Begam (supra), the Supreme Court enunciated the legal position
as under:
"10. This Court in the case of Gohar Begam v. Suggi Alias
Nazma Begam and others (1960(1) SCR 597) dealt with a
petition for writ of Habeas Corpus for recovery of a
illegitimate female infant of an unmarried Sunni Muslim
mother, took note of the position under the Mohammedan
Law that the mother of an illegitimate female infant is
entitled to its custody and the refusal to restore such a child
to the custody of its mother would result in an illegal
detention of the child within the meaning of Section 491 of
the Criminal Procedure Code. This Court held that the
dispute as to the paternity of the child is irrelevant for the
purpose of the application and the Supreme Court will
interfere with the discretionary powers of the High Court if
the discretion was not judicially exercised. This Court
further held that in issuing writs of Habeas Corpus the
Court have power in the case of an infant to direct its
custody to be placed with a certain person.
11. From the principles laid down in the aforementioned
cases it is clear that in an application seeking a writ of
Habeas Corpus for custody of minor children the principal
consideration for the Court is to ascertain whether the
custody of the children can be said to be unlawful or illegal
and whether the welfare of the children requires that present
custody should be changed and the children should be left
in 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 of the Court.
Unfortunately, the Judgment of the High Court does not
show that the Court has paid any attention to these
important and relevant questions. The High Court has not
considered whether the custody of the children with their
father can, in the facts and circumstances, be said to be
unlawful. The Court has also not adverted to the question
whether for the welfare of the children they should be taken
9 (2001) 5 SCC 247.
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out of the custody of their father and left in the care of their
mother. ........"
25. At this juncture a profitable reference can be made to the
judgment of the Supreme Court in the case of Tejasvini Gaud
(supra), on which reliance was placed both by Mr. Jha and Mr.
Dande. A brief reference to the facts which obtained in the case
of Tejasvini Gaud (supra) would assist in properly appreciating
the law expounded therein. In the said case, the child, barely
three months old, came to stay with the appellants, who were
the sisters and brother-in-law of the wife of the respondent as
the child's mother was diagnosed with cancer and at the same
time the respondent - husband was diagnosed with Tuberculosis
Meningitis and Pulmonary Tuberculosis and was required to be
hospitalised. The child's mother passed away on 17 th October,
2018. When the respondent - father sought custody of his
infant daughter, the appellants refused to hand over the
custody.
26. Under such circumstances, where the appellants came to
be entrusted with the custody of the infant under peculiar and
unavoidable circumstances, this Court in Shekhar Jagdish
Prasad Tewari (supra) passed an order directing the transfer
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of the custody of the infant to the father. The Supreme Court
affirmed the judgment of this Court.
27. In the process, the Supreme Court considered the aspect
of the tenability of a petition for habeas corpus. The
observations in paragraphs 19 to 21 are instructive and hence
extracted below:
"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.
20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases
arising out of the proceedings under the Guardians and
Wards Act, the jurisdiction of the court is determined by
whether the minor ordinarily resides within the area on
which the court exercises such jurisdiction. There are
significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a
writ court which is of summary in nature. What is
important is the welfare of the child. In the writ court,
rights are determined only on the basis of affidavits. Where
the court is of the view that a detailed enquiry is required,
the court may decline to exercise the extraordinary
jurisdiction and direct the parties to approach the civil
court. It is only in exceptional cases, the rights of the
parties to the custody of the minor will be determined in
exercise of extraordinary jurisdiction on a petition for
habeas corpus.
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21. In the present case, the appellants are the sisters and
brother of the mother Zelam who do not have any authority
of law to have the custody of the minor child. Whereas as
per Section 6 of the Hindu Minority and Guardianship Act,
the first respondent- father is a natural guardian of the
minor child and is having the legal right to claim the
custody of the child. The entitlement of father to the custody
of child is not disputed and the child being a minor aged 1½
years cannot express its intelligent preferences. Hence, in
our considered view, in the facts and circumstances of this
case, the father, being the natural guardian, was justified in
invoking the extraordinary remedy seeking custody of the
child under Article 226 of the Constitution of India."
(emphasis supplied)
28. The facts in the case of Tejaswini Gaud (supra) have a
striking resemblance to the facts of the case at hand, except the
fact that the child therein was one and half year old and Master
'J; is nine and half year old and in a position to indicate his
preference.
29. It would be contextually relevant to refer to the
pronouncement of the Supreme Court in the case of Yashita
Sahu (supra), wherein, the Supreme Court after considering the
previous pronouncements on the aspect of maintainability of
writ habeas corpus, ruled in favour of the maintainability in
emphatic terms 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 vs. Arvand M. Dinshaw & Ors., Nithya Anand
Raghavan vs. State (NCT of Delhi) & Anr. and Lahari
Sakhamuri vs. Sobhan Kodali among others. In all these
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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."
(emphasis supplied)
30. It is imperative to note that the aforesaid pronouncement
was made in the context of a petition where the custody of the
child was sought by one parent from another, which ordinarily
cannot be alleged to be illegal. A fortiori, the principle applies
with greater force where a natural guardian seeks the custody of
a child from the relations of one of the parents. The remit of
writ of habeas corpus is thus not restricted only to the cases
where the custody of the child can be said to be unlawful or
illegal. Thus, the submission on behalf of respondent nos.1 and
2 that since Master 'J' was entrusted to respondent no.1 with
the consent of the petitioner, the petition cannot be entertained
does not merit countenance.
31. The legal position thus seems to have been crystallized to
the effect that ordinarily, the person seeking custody has to
invoke the jurisdiction of Civil/Family Court in accordance with
the statutory provisions. However, in exceptional cases, the writ
Court is not precluded from exercising the extraordinary
jurisdiction to determine the rights of the parties to the custody
of a minor, in a habeas corpus petition. A situation where the
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custody of the minor child is alleged to be with a person other
than parent/lawful guardian, and the petitioner is indisputably
the natural guardian, the exercise of writ jurisdiction appears
legitimate. It is a different matter that the writ Court having
regard to the attendant facts of the case and the nature of the
inquiry warranted, may decline to exercise the writ jurisdiction.
32. We are, however, not persuaded to accede to the broad
proposition sought to be forcefully canvassed by Mr. Jha that in
a situation, like the present one, where a parent claims custody
of the child from a person, who has no right to the custody of
the child, the aspect of welfare of the child is not required to be
delved into deeply.
33. In our view, the distinction sought to be drawn between
the two situations, namely, where the custody of the child is
sought by one parent from another parent and where the
custody of the child is sought by a parent from a person who is
not the parent / lawful guardian, in the matter of application of
the principle of paramountcy of the welfare of the child, is not
well founded. Even in a case where the custody of a child is
sought from the person who is not a parent/lawful guardian,
the question of interest and welfare of the child is required to be
delved into as the Court exercises a parens patriae jurisdiction.
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The proposition that in the matter of determination of the issue
of custody of child, it is not the right of the parties but welfare of
the child, which is of determinative significance applies with
equal force to a situation like the case at hand. In such a
situation, there may be qualitative difference in the degree of
application of the principle, to the facts of the given case.
However, it cannot be urged that the principle does not come
into play at all.
34. Even in the case of Tejaswini Gaud (supra), which was
banked upon by Mr. Jha, the Supreme Court reiterated that
while deciding the child custody cases the Court is not bound
by the legal right of the parent or guardian and the paramount
consideration ought to be interest or welfare of the child. The
observations in paragraphs 26 and 34, on which reliance was
placed by Mr. Dande, are material and hence extracted below:
"Welfare of the minor child is the paramount
consideration:-
26. The court while deciding the child custody cases is not
bound by the mere legal right of the parent or guardian.
Though the provisions of the special statutes govern the
rights of the parents or guardians, but the welfare of the
minor is the supreme consideration in cases concerning
custody of the minor child. The paramount consideration for
the court ought to be child interest and welfare of the child.
.......
34. As observed in Rosy Jacob11 earlier, 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 welfare
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of the child shall include various factors like ethical
upbringing, economic well-being of the guardian, child's
ordinary comfort, contentment, health, education etc. The
child Shikha lost her mother when she was just fourteen
months and is now being deprived from the love of her
father for no valid reason. As pointed out by the High Court,
the father is a highly educated person and is working in a
reputed position. His economic condition is stable."
(emphasis supplied)
35. On the aforesaid touchstone, reverting to the facts of the
case, it is imperative to note the circumstances in which Master
'J' came to reside with respondent no.1. As indicated above, the
fact of Neeta being diagnosed with cancer in the year
2017 necessitated the shift of Neeta and Master 'J' from the
house of the petitioner to her parental home. It is nobody's case
that the said move was driven by any act or omission
attributable to the petitioner. The unfortunate circumstances,
in which Neeta and Master 'J' found themselves, forced them to
stay with respondent no.1. It is but natural that Master 'J'
developed great liking and affection to respondent no.1 and his
family members, on account of the long stay and the love and
affection which respondent no.1 and his family members must
have bestowed upon him.
36. The developments which occurred, in the intervening
period, and, especially, post death of Neeta are required to be
appreciated through the aforesaid prism. The fact that the
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petitioner gave consent to enroll Master 'J' in St. Thomas School,
which was nearby the residence of respondent no.1, thus cannot
be arrayed against the petitioner. At that point of time, the
petitioner and respondent no.1 were in unison that, in the given
circumstances, it was expedient that Master 'J' studied in a
nearby school as Neeta was fighting the disease. Likewise, the
circumstance that in the Personal Information Sheet respondent
no.1 was shown as the guardian of Master 'J', thus cannot be
construed as an abdication of the responsibility by the
petitioner.
37. Evidently, the petitioner and respondent no.1 and his
family members turned astray post death of Neeta, when the
petitioner demanded the custody of Master 'J'. We do not find it
necessary to delve into the allegations and counter allegations.
These issues are essentially rooted in facts. The initiation of the
proceedings, firstly, by Urmila Vapikar, the maternal
grandmother of Master 'J', being Petition No.D-56/2019 for
appointment as a guardian of Master 'J' and, secondly, by the
petitioner being Petition No.D-74/2019 for custody of Master 'J'
are required to be considered in the backdrop of the disputes
which arose between the parties over the custody of Master 'J',
post death of Neeta.
CRIWP579-21.DOC
38. Mr. Dande as well as Ms. Ingale, laid stress on the fact
that initially the parties had filed consent terms and, later on,
the Family Court by an order dated 6 th November, 2020, rejected
the application of the petitioner for interim custody while
directing virtual access. Attention of the Court was also invited
to the order dated 5th March, 2021, whereby the Family Court
stayed the proceedings in Petition No. D-74/2019 instituted by
the petitioner as the petitioner had instituted petition for habeas
corpus in this Court, with a direction to the petitioner to make
an election.
39. The situation which thus obtains is that the petitioner
invoked the jurisdiction of the Family Court for custody of
Master 'J'. As the petitioner simultaneously invoked writ
jurisdiction, the said proceedings came to be stayed by the
Family Court. We have noted that in child custody matters the
ordinary remedy is before the Family/Civil Court. However, in
exceptional circumstances, the writ Court can exercise the
extraordinary jurisdiction despite the existence of such ordinary
remedy. The fact that the petitioner has invoked the jurisdiction
of the Family Court, in the peculiar circumstances of the case,
where the juridical status of the petitioner is not in dispute, in
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our view, does not preclude this Court from exercising the
extraordinary writ jurisdiction.
40. This propels us to the pivotal issue of the welfare of Master
'J'. Whether, in the facts of the case, the Court would be
justified in directing the transferring of the custody of Master 'J'
is the moot question. The expression welfare of the child is of
wide connotation. It is not restricted to physical comfort and
well being. It subsumes in its fold, inter alia, emotional,
intellectual and overall holistic development of the child. In the
case of Gaurav Nagpal vs. Sumedha Nagpal10, the Supreme
Court exposited the connotation of the term welfare as under:
"43. 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."
41. In the Nil Ratan Kundu and anr. vs. Abhijit Kundu 11 the
considerations for determination of the proper custody of a
minor child were illuminatingly postulated by the Supreme
Court, as under:
10 AIR 2009 Supreme Court 557.
11 (2008) 9 Supreme Court 413.
CRIWP579-21.DOC
"........ In selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of the
child. In selecting a guardian, the Court is exercising parens
patriae jurisdiction and is expected, nay bound, to give due
weight to a child's ordinary comfort, contentment, health,
education, intellectual development and favourable
surroundings. But over and above physical comforts, moral
and ethical values cannot be ignored. They are equally, or we
may say, even more important, essential and indispensable
considerations. If the minor is old enough to form 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.
42. Welfare of the minor is thus a broad and elastic
expression. Every factor which bears upon the overall
development of the child needs to be given due weight. The
approach of the Court in ascertaining and determining the
welfare of the minor ought to be well informed and pragmatic. It
is thus said that the Court is called upon to deal with a human
problem with a humane touch.
43. In the case at hand, the Court has to consider the wishes
and preferences of Master 'J', as well. We interacted with Master
'J' in the presence of his grandmother Urmila Vapikar. During
the course of our interaction with Master 'J', we found that
Master 'J' finds himself extremely comfortable in the company of
respondent no.1 and his family members. Master 'J' indicated a
strong reluctance to speak with the petitioner. He expressed
CRIWP579-21.DOC
a strong desire to continue to stay with respondent no.1 and his
family members.
44. Mr. Dande, the learned Counsel for respondent nos.1 and
2, in the light of the aforesaid preference indicated by Master 'J',
would urge that as Master 'J' is in a position to make an
intelligible choice, it would be impermissible to direct the
transfer of custody against the wishes of Master 'J'. It is this
aspect of the matter which made us to give utmost serious
consideration and ponder over the situation.
45. It is true that Master 'J' being a nine and half year old boy
was in a position to indicate his preference. We attach due
weight to his choice. However, in our view, in the circumstances
of the case and having regard to the age of Master 'J', the
preference of Master 'J' alone cannot be a decisive factor.
46. Again, the circumstances in which Master 'J' came to
reside with respondent no.1 assume critical significance. It is
not a case that there was either marital discord or failure to
bestow requisite love and affection upon Master 'J', which was a
driving factor for Master 'J' to come to reside with respondent
no.1. It was an unfortunate and unforeseen event of Neeta being
diagnosed with cancer, which made them to shift to respondent
no.1's place. Nor is it a case that Master 'J' has all along been
CRIWP579-21.DOC
residing with respondent no.1 since his birth. As indicated
above, by the passage of time, Master 'J' has developed a strong
bond of affection and love towards respondent no.1 and his
family members. The animosity towards the petitioner, thus
seems to be a learned trait. It is not impossible to unlearn,
provided a conducive environment is created.
47. At this stage, it is pertinent to note that the fact that the
petitioner and respondent no.1 and his family members were at
loggerheads over the custody of Master 'J' must have
contributed to the further alienation of Master 'J'. The passage
of time and the negative estimation of respondent no.1 and his
family members about the petitioner might also have played a
significant role. This is recognised as a 'parental alienation
syndrome'.
48. The reluctance to join the company of, or animosity
towards, the father does not seem to be based on the experience
which Master 'J' have had, when the petitioner, Neeta and
Master 'J' were residing together. The possibility of the
perspective of Master 'J' being influenced by the views of
respondent no.1 and his family members about the character,
personality and overall bearing of the petitioner, cannot be ruled
out. At a impressionable age such articulation about the
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opposite party, in a custody battle, often affects the capacity to
exercise an intelligible preference. It is quite possible that when
a child spends time with a non-custodial parent, he may be
disabused of such perception.
49. A useful reference, in this context, can be made to the
judgment of the Supreme Court in the case of Vivek Singh vs.
Romani Singh12 where the Supreme Court adverted to the
parental alienation syndrome. In the said case, the child had
remained with the appellant father from the tender age of 21
months and when the matter came up before the Supreme
Court, the child was eight years and three months old. In the
said backdrop, the Supreme Court found the reluctance of the
child to join her mother quite natural and obvious. It was thus
observed as under:
"16.3 ........ It is in these circumstances that child Saesha
from the tender age of 21 months has remained with the
appellant and today she is 8 years and 3 months. Obviously,
because of this reason, as of today, she is very much
attached to the father and she thinks that she should
remain in the present environment. A child, who has not
seen, experienced or lived the comfort of the company of the
mother is, naturally, not in a position to comprehend that
the grass on the other side may turn out to be greener. Only
when she is exposed to that environment of living with her
mother, that she would be in a position to properly evaluate
as to whether her welfare lies more in the company of her
mother or in the company of her father. As of today, the
assessment and perception are one sided. Few years ago,
when the High Court passed the impugned judgment, the
ground realities were different."
12 (2017) 3 Supreme Court Cases 231.
CRIWP579-21.DOC
(emphasis supplied)
50. The Supreme Court also adverted to the possibility of the
custodial parent making efforts to paint the non-custodial
parent in a negative fashion. In that context, the Supreme
Court referred to the 'parental alienation syndrome' and its
psychologically destructive effects as under:
"18. ........ The intensity of negative feeling of the appellant
towards the respondent would have obvious effect on the
psyche of Saesha, who has remained in the company of her
father, to the exclusion of her mother. The possibility of
appellant's effort to get the child to give up her own positive
perceptions of the other parent, i.e., the mother and change
her to agree with the appellant's view point cannot be ruled
out thereby diminishing the affection of Saesha towards her
mother. Obviously, the appellant, during all this period,
would not have said anything about the positive traits of the
respondent. Even the matrimonial discord between the two
parties would have been understood by Saesha, as perceived
by the appellant. Psychologist term it as 'The Parental
Alienation Syndrome'[4]. It has at least two psychological
destructive effects:
(i) First, it puts the child squarely in the middle of a
contest of loyalty, a contest which cannot possibly be
won. The child is asked to choose who is the preferred
parent. No matter whatever is the choice, the child is
very likely to end up feeling painfully guilty and
confused. This is because in the overwhelming
majority of cases, what the child wants and needs is to
continue a relationship with each parent, as
independent as possible from their own conflicts.
(ii) Second, the child is required to make a shift in
assessing reality. One parent is presented as being
totally to blame for all problems, and as someone who
is devoid of any positive characteristics. Both of these
assertions represent one parent's distortions of reality."
(emphasis supplied)
51. The aforesaid pronouncement in the case of Vivek Singh
(supra) was followed by the Supreme Court in the case of Sheoli
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Hati vs. Somnath Das.13 In the said case, the Supreme Court
also referred to its judgment in the case of Thirty Hoshie
Dolikuka vs. Hoshiam Shavaksha Dolikuka14 to underscore the
fact that in embittered relationship between the parents, the
attempt of one spouse poisoning the mind of the child against
the other spouse has disastrous effect. In the case of Thirty
Hoshie Dolikuka (supra), the Supreme Court did not find it
expedient to give primacy to the wishes of the child.
52. In the light of the aforesaid exposition of the legal position
as regards the possible effects of a child being continuously in
the custody of one parent, on the estimation towards the non-
custodial parent, in the facts of the present case, in our
considered view, it would not be expedient to be guided by the
preference of Master 'J'. The Court cannot loose sight of the fact
that Master 'J' has lost his mother at a young age. Master 'J'
requires the parental love, care, affection and protection for
overall development. Conversely, it casts onerous responsibility
on the petitioner to singly give justice to the role, which both the
parents are expected to discharge. In our view, it may not be
appropriate to deprive Master 'J' of the parental love, care and
affection.
13 (2019) 7 Supreme Court Cases 490.
14 (1982) 2 SCC 544.
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53. It is true that with the passage of time and development of
the bond with respondent no.1 and his family members, Master
'J' may find it difficult to adjust to a changed environment.
However, it is not the case that Master 'J' had not lived with the
petitioner, at all. There is material to indicate that the petitioner
also has a support system in place in the form of his parents.
Nonetheless, to ensure that Master 'J' is not suddenly uprooted
from the family of respondent no.1 and the environment he is
accustomed to, and the level of confidence and trust between
the petitioner and Master 'J' is gradually built, we deem it
appropriate to initially direct physical access to, and overnight
stay with, the petitioner and also reasonable time to enable
Master 'J' to acclimatize with the petitioner and the new
environment. In our view, the measures we propose to put in
place would also give an opportunity to the petitioner to prove
himself as a responsible, caring and loving father. In order to
ensure that there is continuity in education and Master 'J'
retains the bond with respondent no.1 and his family members,
we deem it appropriate to direct that Master 'J' shall be allowed
to continue his schooling at C. P. Goenka School, Borivali. All
the expenses of Master 'J', starting with the next academic year,
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including the school fees and transportation etc. shall be borne
by the petitioner.
54. We trust that respondent nos.1 and 2 and their family
members would also realise that it is in the best interest of
Master 'J' that he is united with his father. If Urmila Vapikar,
grandmother of Master 'J', wishes to prosecute the Petition No.
D-56 of 2019 filed before the Family Court, she is at liberty to do
so. We may not be understood to have expressed any opinion on
the merits of the said petition and the Family Court shall decide
the same on its own merits and in accordance with law.
55. For the forgoing reasons, we are inclined to allow the
petition in the following terms. Hence, the following order:
:Order:
(i) The petition stands allowed.
(ii) Respondent nos.1 and 2 shall hand over the custody
of Master 'J' to the petitioner in the week
commencing from 22nd August, 2022.
(iii) In the meanwhile, the petitioner shall have physical
access to Master 'J' on every alternate Saturday or
Sunday from 10.00 am. to 6.00 pm., commencing
from 12th February, 2022 to 24th April, 2022.
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(iv) The petitioner shall pick up Master 'J' from the
residence of respondent no.1 at 10.00 am. and drop
him back at 6.00 pm.
(v) The petitioner shall not have the right of access in
the weekend during which Master 'J' has final
examinations.
(vi) From 14th May, 2022, onwards Master 'J' will stay
with the petitioner overnight, once in a fortnight.
(vii) The petitioner shall pick up Master 'J' from the
residence of respondent no.1 at 4.00 pm. on
Saturday and drop him back by 2.00 pm. on
Sunday.
(viii) This access shall continue till respondent nos.1 and
2 hand over the custody of Master 'J' to the
petitioner in the week commencing from 22 nd
August, 2022.
(ix) Master 'J' shall be allowed to continue his study in
C. P. Goenka School, Borivali.
(x) All the expenses of Master 'J' including the school
fees and transportation etc. shall be borne by the
petitioner from the next academic year, i.e. 2022 -
2023.
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(xi) In the event, respondent nos.1 and 2 do not hand
over the custody of Master 'J' to the petitioner by
27th August, 2022, respondent no.3/State shall
provide the necessary aid to the petitioner to take
custody of Master 'J'.
(xii) After the custody of Master 'J' is handed over to the
petitioner, respondent nos.1 and 2 shall have the
right of physical access to Master 'J' once in a
fortnight.
(xiii) The petitioner shall drop Master 'J' at the residence
of respondent nos.1 and 2 every alternate
Saturday / Sunday, at about 8.00 am. and take him
back at about 6.00 pm.
Rule made absolute in aforesaid terms.
No costs.
Before parting, we record our appreciation for the able
assistance rendered by Advocate Mallika Ingale, the learned
amicus.
[N. J. JAMADAR, J.] [S. S. SHINDE, J.]
SANTOSH
SUBHASH
KULKARNI
Digitally signed by
SANTOSH
SUBHASH
KULKARNI
Date: 2022.02.01
18:54:51 +0530
