Calcutta High Court (Appellete Side)
Dr. Gaurav Gupta vs State Of West Bengal & Ors on 2 September, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WPA No. 1098 of 2020
IA No: CAN 1 of 2020 (Old No: CAN 3091 of 2020)
CAN 2 of 2020 (Old No: CAN 3093 of 2020)
CAN 3 of 2020 (Old No: CAN 3094 of 2020)
CAN 4 of 2024
Dr. Gaurav Gupta
Vs.
State of West Bengal & Ors.
For the Petitioner : Mr. Partha Sarathi Sengupta, Sr. Adv.
Mr. Ratnesh Kr. Rai, Adv.
Ms. Devanshi Deora, Adv.
For the Respondent : Mr. Sabyasachi Banerjee, Adv.
No. 4 Ms. Diksha Ghosh, Adv.
Hearing Concluded on : August 22, 2024
Judgement on : September 02, 2024
DEBANGSU BASAK, J.:-
1. Writ petitioner as father of two minor children has
sought a writ of habeas corpus against the respondent No. 4,
who is the wife and the mother of the two minor children.
2. Learned Senior Advocate appearing for the writ
petitioner has contended that, the minors were in the custody
and control of the respondent No. 4 till they were illegally and
Signed By :
SUBHA
KARMAKAR
High Court of
wrongfully removed by the respondent No. 4 from Kolkata to
Calcutta
2 nd of September
2024 01:10:32 PM
presently at Bhopal. He has contended that, the present
custody of the children with the respondent No. 4 is wrongful
and illegal.
3. Referring to the facts of the case, learned Senior
Advocate appearing for the writ petitioner has submitted that,
marriage between the writ petitioner and the respondent No. 4
took place on December 10, 2006 and solemnized under the
Hindu Marriage Act, 1955. The first child was born on
September 15, 2012 at England. Parents had thereafter
relocated and settled in Kolkata. The first child had been
admitted at a school in Kolkata and continues to be a student
of such school. Second child was born on October 18, 2017 at
Kolkata.
4. Learned Senior Advocate appearing for the writ
petitioner has contended that, disputes and differences arose
between the writ petitioner and the respondent No. 4.
Respondent No. 4 had taken the children from Kolkata to
Mumbai without any intimation. Writ petitioner had travelled
to Mumbai to meet his children and respondent No. 4 on
October 27, 2019 when he was manhandled and not allowed
to meet his children. The respondent No. 4 had subsequently
shifted to Bhopal where she is presently residing. Respondent
No. 4 has denied the writ petitioner all access to his children.
Even access through virtual platform has either been denied
altogether or monitored.
5. Learned Senior Advocate appearing for the writ
petitioner has submitted that, the writ petitioner travelled to
Bhopal to attend family counselling when he was threatened
by the then Director General of Police, Madhya Pradesh. Writ
petitioner had filed Misc. Case No. 3021 of 2019 under
Section 9 of the Hindu Marriage Act, 1955 seeking restitution
of conjugal rights in the District Court at Alipur, South 24
Parganas. Respondent No. 4 had filed a criminal complaint at
Bhopal on December 11, 2019. Writ petitioner had filed Misc.
Case No. 181 of 2019 under Section 25 of the Guardians and
Wards Act, 1890 read with Section 6 (a) of the Hindu Minority
and Guardianship Act, 1956 before the District Judge,
Alipore, South 24 Parganas on December 13, 2019.
Thereafter, writ petitioner has filed the present writ petition.
6. Learned Senior Advocate appearing for the writ
petitioner has submitted that, the respondent No. 4 filed an
application under Section 12 read with Sections 18 to 23 of
the Protection of Women from Domestic Violence Act, 2005
against the writ petitioner and his family members on June
24, 2020. The respondent No. 4 had filed a Transfer Petition
being 361-362/2020 seeking transfer of applications under
Section 9 of the Hindu Marriage Act, 1955 and Section 25 of
the Guardianship and Ward Act, 1890 from Kolkata to
Bhopal.
7. Learned Senior Advocate appearing for the writ
petitioner has pointed out that, in this writ petition, an
interim order was passed on February 3, 2020 directing the
respondent No. 4 to deposit the passports of the children with
the District Judge, Bhopal until further orders. Such order
was challenged by a Special Leave Petition by the respondent
No. 4 which was dismissed by an order dated June 19, 2020.
He has pointed out that by an order dated March 4, 2020
Hon'ble Supreme Court directed the parties to mediate the
disputes before the mediator in the Transfer Petition filed by
the respondent No. 4. Such mediation however had failed and
by an order dated February 8, 2020 Hon'ble Supreme Court
disposed of Transfer Petition No. 361-362/2020 by
transferring the proceedings under the Hindu Marriage Act,
1955 and the proceedings under the Guardians and Wards
Act, 1890 to the Principal Judge, Nagpur, Maharashtra.
8. Learned Senior Advocate appearing for the writ
petitioner has submitted that, on June 30, 2020 respondent
No. 4 filed Transfer Petition No. 683 of 2020 praying for
transfer of the present writ petition to the Madhya Pradesh
High Court at Jabbalpur. Respondent No. 4 had also filed for
divorce in Bhopal, Madhya Pradesh which was also
transferred to Nagpur by virtue of the order dated March 1,
2024.
9. Learned Senior Advocate appearing for the writ
petitioner has contended that, several orders were passed by
this Court in the best interest of the children. The respondent
No. 4 had acted in violation thereof. He has drawn the
attention of the Court to the various acts of misdeeds of the
respondent No. 4 vis-à-vis children as also the orders passed
by the High Court.
10. Learned Senior Advocate appearing for the writ
petitioner has contended that, the present writ petition is
maintainable since, the respondent No. 4 removed the
children born out of the wedlock by deceit and is illegally and
unlawfully detaining them at Bhopal. He has relied upon
2019 Volume 7 Supreme Court Cases 42 (Tejaswani Gaud
& Anr vs. Shekhar Jagdish Prasad Tewari & Ors.) and
2020 Volume 3 Supreme Court Cases 67 (Yashita Sahu
vs. State of Rajasthan And Others) in the regard.
11. Learned Senior Advocate appearing for the writ
petitioner has contended that, welfare of the children is of
paramount importance and that, the children are at the risk
of Paternal Alienation Syndrome owing to the malicious act of
the respondent No. 4. He has submitted that Supreme Court
recognized Paternal Alienation Syndrome to be a serious form
of child psychological abuse. In support of such contention, he
has relied upon 2017 Volume 3 Supreme Court Cases 231
(Vivek Singh vs. Romani Singh), 1999 Volume 2 Supreme
Court Cases 228 (Githa Hariharan & Anr. Vs. Reserve
Bank of India).
12. Learned Senior Advocate appearing for the writ
petitioner has relied upon 2019 Volume 7 Supreme Court
Cases 311 (Lahiri Sakhamuri vs. Sobhan Kodali) and
submitted that, best interest of the children is the paramount
consideration in deciding custody of the children. He has
pointed out that, the children would be better placed in the
custody of the writ petitioner since the writ petitioner has
evidently better maturity and judgement. He has contended
that, writ petitioner is way better placed in respect of financial
sufficiency, mental stability, and providing access to better
school to the children. Moreover, children will develop better
having a permanent residence as opposed to temporary
residence. He has pointed out that the respondent No. 4 is
living in a rented accommodation and forced to shift residence
due to her financial condition and in fact shifted her
residence. Consequently, he has submitted that, appropriate
order be passed with regard to the custody of the two children
involved.
13. Learned Advocate appearing for the respondent No. 4
has submitted that, the respondent No. 4 was being tortured
both physically and mentally and therefore, was constrained
to remove the children to Bhopal as also remove herself from
the writ petitioner and his family members. He has contended
that, the writ petitioner is violent and abusive in nature. He
has referred to the proceedings that the respondent No. 4 was
constrained to initiate as against the writ petitioner. He has
contended that, respondent No. 4 is sufficiently qualified and
with sufficient financial capability to meet the needs of the
children. He has pointed out that, both the children are now
studying at Bhopal in one of the best schools there.
14. Learned advocate appearing for the respondent No. 4
has relied upon 1981 Volume 3 Supreme Court Cases 92
(Dr. (Mrs.) Veena Kapoor vs. Varinder Kumar), 1999
Volume 2 Supreme Court Cases 228 (Githa Hariharan &
Anr. Vs. Reserve Bank of India), 2001 Volume 5 Supreme
Court Cases 247 (Syed Saleemuddini vs. Dr. Rukhasana
& Ors.), 2008 Volume 9 Supreme Court Cases 413 (Nil
Ratan Kundu & Anr. Vs. Abhijit Kundu), 2011 Volume 6
Supreme Court Cases 479 (Ruchi Majoo vs. Sanjeev
Majoo), 2017 Volume 8 Supreme Court Cases 454 (Nithya
Anand Raghavan vs. State (NCT Delhi) & Anr.), 2019
Volume 7 Supreme Court Cases 42 (Tejaswani Gaud &
Anr. Shekhar Jagdish Prasad Tewari & Ors.), 2021 SCC
OnLine All 882 (Sushil Kumar Tiwari Vs. State of UP &
Ors.), 2022 SCC OnLine SC 937 (Rohit Thammana Gowda
vs. State of Karnataka & Ors.), 2022 SCC OnLine SC 885
(Rajeshwari Chandrashekar Ganesh Vs. State of Tamil
Nadu & Ors.), 2022 SCC OnLine ALL 955 (Shradha
Kannujia (Minor) & Anr. Vs. State of UP & Ors.) and 2022
SCC OnLine Ori 2008 (Koushalya Das vs. State of Odisha
& Ors.) with regard to nature and extent of order that may be
passed in a writ petition relating to custody of children.
15. As has been noted above, father has filed the present
writ petition seeking a writ of habeas corpus in respect of the
children born out of the wedlock between the writ petitioner
and the respondent No. 4.
16. Writ petitioner and the respondent No. 4 had filed a
number of proceedings against each other. The following
proceedings apparently have been filed by the parties against
each other apart from the present writ petition :-
of the Hindu Marriage Act, 1955 seeking
restitution of conjugal rights with the
respondent No. 4 before the learned Judge,
District Court at Alipore, South 24 Parganas
by the writ petitioner.
ii. Respondent No. 4 lodged first information
report bearing No. 2000 of 2019 at the police
station, Mahila Thana, Bhopal inter alia under
Sections 498A/34/506 of the Indian Penal
Code, 1860
of the Guardian and Wards Act, 1890 read
with Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 before the learned
District Judge, Alipore, South 24 Parganas
filed by the writ petitioner.
iv. Proceedings under Section 12 read with
Section 18 to 23 of the Protection of Women
from Domestic Violence Act, 2005 filed by the
respondent No. 4.
v. Respondent No. 4 filed Transfer Petition (Civil)
No. 361-362/2020 seeking transfer of
proceedings under Hindu Marriage Act, and
the Guardians and Wards Act.
vi. Respondent No. 4 filed Special Leave Petition
being SLP No. 7486/2020 challenging the
order dated February 3, 2020 passed by the
High Court in this writ petition.
vii. Respondent No. 4 filed Transfer Petition being
TP No. 683 of 2020 seeking transfer of the
present writ petition.
viii. Respondent No. 4 filed proceedings for
divorce.
17. By an order dated February 8, 2022, the Hon'ble
Supreme Court transferred the proceedings under the Hindu
Marriage Act, as also the Guardian and Wards Act to the
Principal Judge, Nagpur, Maharashtra. Such proceedings are
pending.
18. Maintainability of the present writ petition has been
questioned on behalf of the respondent No. 4. Respondent No.
4 has also questioned the need for passing further orders in
this writ petition in view of the pendency of custody
proceeding before the District Court.
19. In Dr. (Mrs.) Veena Kapoor (supra) Supreme Court
has noted that it was difficult to take evidence with regard to
the issue as to whether the custody of the child with the
father was illegal or not. It has noted that, the paramount
consideration is the welfare of the minor and not the legal
right of any particular party, when it comes to the issue of
deciding custody of a minor.
20. In Githa Hariharan & Anr. (supra) the issue was not
with regard to custody of a minor but, whether mother can act
as the guardian of a minor particularly when, the father was
agreeing on such issue, in relation of banking documents.
21. In a habeas corpus writ petition of seeking transfer of
custody of children from father to mother, Supreme Court in
Syed Saleemuddini (supra) has observed that, the principle
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 the present
custody to be changed and to be left in the care and custody
of somebody else.
22. Nil Ratan Kundu & Anr. (supra) has dealt with the
issue of custody of minor in a proceeding under the
Guardians and Wards Act, 1890. So also in Ruchi Majoo
(supra) an order passed by the jurisdictional Court under the
Guardians and Wards Act, 1870 had been challenged under
Article 227 of the Constitution which order was in turn
challenged before the Supreme Court.
23. Nithya Anand Raghavan (supra) has deal with a
habeas corpus writ petition filed under Article 226 of the
Constitution of India. It has noted Syed Saleemuddini
(supra). It has noted that, the High Court while dealing with a
writ petition for habeas corpus concerning a minor may direct
return of the child or decline to change the custody of the
child keeping in mind all facts and circumstances including
the settled legal position. It has also noted that the remedy of
writ of Habeas Corpus cannot be used for mere enforcement of
directions given by the Foreign Court against a person within
its jurisdiction and convert that jurisdiction into one of
executing Court and that, the order of the Foreign Court must
yield to the welfare of the child. It has observed in paragraph
47 as follows :-
"47.In a habeas corpus petition as aforesaid, the
High Court must examine at the threshold whether the
minor is in lawful or unlawful custody of another person
(private respondent named in the writ petition). For
considering that issue, in a case such as the present
one, it is enough to note that the private respondent
was none other than the natural guardian of the minor
being her biological mother. Once that fact is
ascertained, it can be presumed that the custody of the
minor with his/her mother is lawful. In such a case,
only in exceptionable situation, the custody of the minor
(girl child) may be ordered to be taken away from her
mother for being given to any other person including the
husband (father of the child), in exercise of writ
jurisdiction. Instead, the other parent can be asked to
resort to a substantive prescribed remedy for getting
custody of the child."
24. Tejaswani Gaud & Anr. (supra) has dealt with a writ
of habeas corpus and observed that, habeas corpus
proceedings are not to justify or examine the legality of
custody. It has observed that, in child custody matters, the
power of the High Court in granting a writ of habeas corpus is
qualified only in cases where the detention of the minor is by a
person who is not entitled to his legal custody. A 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. Such writ also extends its
influence to restore the custody of a minor to its guardian
when wrongfully deprived of it. The detention of a minor by a
person who is not entitled to its legal custody is treated as
equivalent to illegal detention for the purpose of granting writ
directing custody of a child. It has noted that there are
significant differences between enquiry under the Guardians
and Wards Act, 1890 and the exercises of powers by a Writ
Court which is summary in nature. It has held that, where
Writ Court is of the view that a detailed enquiry is required,
the Court may decline to exercise writ 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 in a petition for habeas corpus.
25. Sushil Kumar Tiwari (supra), Shradha Kannujia
(Minor) & Anr. (supra) and Koushalya Das (supra) have
been rendered by other High Courts in Habeas corpus writ
petitions.
26. In Rohit Thammana Gowda (supra) a proceeding
before the United States Court governing the minor was
pending. The minor was also a naturalized US citizen with the
parents holding permanent US resident cards. In such context
direction was issued for return of the child to the United
States of America.
27. Rajeshwari Chandrashekar Ganesh (supra) has
decided an Article 32 Writ petition. There, the minors were
directed to stay with their mother in the United States of
America as the minors were accustomed with the social and
cultural milieu of that country. Supreme Court has noted
that, the US Court issued directions with regard to the
minors.
28. While dealing with power to be exercised in a writ of
habeas corpus, the Supreme Court in Rajeshwari
Chandrasekhar Ganesh (supra) has held as follows :-
"79. The exercise of the extraordinary jurisdiction for
issuance of a writ of Habeas Corpus would, therefore, be
seen to be dependent on the jurisdictional fact where the
applicant establishes a prima facie case that the
detentions unlawful. It is only where the aforementioned
jurisdictional fact is established that the applicant
becomes entitled to the writ as of right.
80. The object and scope of a writ of Habeas Corpus
in the context of a claim relating to the custody of a minor
child fell for the consideration of this Court in Nithya
Ananda Raghavan (supra) and it was held that the
principal duty of the court in such matters should be to
ascertain whether the custody of the child is unlawful and
illegal and whether the welfare of the child requires that
his present custody should be changed and the child be
handed over the care and custody of any other person."
29. Rajeshwari Chandrasekhar Ganesh (supra) has also
dealt with the issue of maintainability of a habeas corpus writ
petition under Article 226 of the Constitution for custody of a
minor, as follows :-
"82. The question of maintainability of a Habeas
Corpus petition under Article 226 of the Constitution of
India for the custody of a minor was examined by this
Court in Tejaswini Gaud v. Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42, and it was held that the petition
would be maintainable where the detention by parents or
others is found to be illegal and without any authority of
law and the extraordinary remedy of a prerogative writ of
Habeas Corpus can be availed in exceptional cases where
the ordinary remedy provided by the law is either
unavailable or ineffective. The observations made in the
judgment in this regard are as follows:
"14. Writ of habeas corpus is a prerogative process for
securing the liberty of the subject by affording an effective
means of immediate release from an illegal or improper
detention. The writ also extends its influence to restore the
custody of a minor to his guardian when wrongfully
deprived of it. The detention of a minor by a person who is
not entitled to his legal custody is treated as equivalent to
illegal detention for the purpose of granting writ, directing
custody of the minor child. For restoration of the custody
of a minor from a person who according to the personal
law, is not his legal or natural guardian, in appropriate
cases, the writ court has jurisdiction.
xxx xxx xxx
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.""
30. In the context of proceedings under the Guardians and
Wards Act, 1890, Supreme Court in Vivek Singh (supra) has
recognised a child might suffer from Paternal Alienation
Syndrome should such child be denied access to one of the
parents.
31. In Yashita Sahu (supra) Supreme Court in a habeas
corpus writ petition has held that, welfare of the child is the
paramount consideration for the Court. Child has human
right to have love and affection of both parents. Therefore,
Court must clearly define the nature, and the specifics of
visitation and contact rights of the parents. It has noted that,
a child separated from one parent in custodial controversies
faces adverse psychological impact and that, in order to
minimise such impact, court should afford sufficient visitation
rights to parent not given child custody so that the child may
not lose social, physical and psychosocial contact with the
other parent.
32. In the facts of Yashita Sahu (supra) the mother of the
child, the minor daughter had shifted from United States of
America, where she was living with her husband and the
child, to India, in violation of order of the US Court.
33. Lahari Sakhamuri (Supra) has dealt with
proceeding initiated under the Guardians and Wards Act,
1890 as well as habeas corpus writ petition seeking relief. In
the facts of that case, the minor children were United States of
America citizen and the parents had been residing in the
United States of America since prior to solemnisation of
marriage in India. Mother of the children had filed a
proceeding for divorce before the US Court. An application for
custody of the minor children before the US Court had been
made by the mother. Thereafter, mother travelled with the
minor children to India and filed proceedings under the
Guardians and Wards Act, 1890 for custody of such children.
In such context, Supreme Court had held that, the proceeding
under the Guardians and Wards Act, 1890 in India was not
maintainable as the children were ordinarily residents within
the jurisdiction of the Court trying such proceedings. It has
also upheld the order of the High Court directing return of the
children to the United States of America.
34. A writ petition seeking relief of issuance of a writ of
habeas corpus for the custody of a minor is maintainable,
subject to certain jurisdictional facts being established.
Jurisdictional facts making such writ petition maintainable
must exist for a Writ Court to assume jurisdiction in a writ
petition of habeas corpus. The jurisdictional facts are, whether
there exists any special circumstance which a Court
exercising jurisdiction under the provisions of the Guardians
and Wards Act, 1890 or under the Hindu Minority and
Guardianship Act, 1956 cannot attend to and grant requisite
relief in respect of the child concerned.
35. It is only in exceptional cases that the rights of the
parties to the custody of the minor should be determined in
exercise of extraordinary jurisdiction on a writ petition for
habeas corpus. In other words, when a Constitutional Court
seeks to intervene in a writ of habeas corpus in respect of the
custody of a child, such Constitutional Court needs to arrive
at a finding that, the alleged detention is illegal and without
any authority of law and that, the ordinary remedy provided
by the law is either unavailable or ineffective. Once such
findings are arrived at, does the Constitutional Court clothe
itself with the jurisdiction to entertain and try a writ petition
seeking relief of writ of habeas corpus in respect of the
custody of a child. Even if such jurisdictional facts are
established, a Constitutional Court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach
the civil court, if the Constitutional Court is of the view that a
detailed enquiry is required which is not possible on affidavit
evidence or the summary procedure it usually adopts. See
paragraphs 19 and 20 of Tejaswani Gaud (supra).
36. Once a Constitutional Court assumes jurisdiction in a
writ petition seeking relief of writ of habeas corpus in respect
of custody of a child, then, the Court is guided by the
paramount consideration of the welfare of the child. While
granting reliefs to the parties, the power of the Constitutional
Court is not pursuant to but independent of any statute.
37. In the facts and circumstances of the present case, the
parties between themselves have filed various proceedings
seeking diverse reliefs. Writ petitioner has filed a proceeding
under the Guardians and Wards Act, 1890 and the Hindu
Minority and Guardianship Act, 1956 with regard to the
custody of the children. No special circumstances has been
established and in fact none exists which prompts a
Constitutional Court to hold that, relief sought for by the writ
petitioner in such proceeding is incapable of being granted by
the Court deciding such proceeding or that, it would not be in
the best interest of the children to have such proceeding
decided by such court. Significantly, such proceedings have
been transferred by the Hon'ble Supreme Court to the
transferee Court where it is presently pending.
38. In the facts and circumstances of the present case, a
proceeding under the Guardians and Wards Act, 1890 and the
Hindu Minority and Guardianship Act, 1956 is pending.
Affidavits disclosed in the present proceedings show that,
there are a number of allegations and counter allegations
between the writ petitioner and the respondent No. 4. Such
allegations should ideally be adjudicated upon after affording
the parties an opportunity of hearing as envisaged in the
procedure governing the proceeding under the Guardians and
Wards Act, 1890 and the Hindu Minority and Guardianship
Act, 1956.
39. In such circumstances, we relegate the private parties
to the proceeding for custody already pending. We clarify that,
we have not decided upon any of the points raised with regard
to the custody of the child and that, all observations made by
us in this judgement and order are restricted towards
determining our course of action in view of the pendency of
the number of proceedings between the private parties. All
points raised by the parties with regard to the custody of the
children are kept open. The transferee court is at liberty to
decide on the custody and visitation rights of the parents, in
accordance with law.
40. In view of the fact that we are not deciding on the
visitation or the custody of the children, and relegating the
parties to the civil court with regard thereto, we deem it
appropriate not to deal with the authorities cited at the bar
requiring the welfare of the children to be kept in mind in
deciding custody proceedings.
41. WPA No. 1098 of 2020 along with all connected
applications are disposed of accordingly without any orders to
costs. Interim orders stand vacated.
[DEBANGSU BASAK, J.]
42. I agree.
[MD. SHABBAR RASHIDI, J.]
