Nasir Khan S/O Late Mohammed Sabir ... vs State Of Rajasthan
2023 Latest Caselaw 674 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         D.B. Habeas Corpus Petition No. 373/2022

Nasir Khan S/o Late Mohammed Sabir Khan, Aged About 46
Years, R/o Plot No.1, Nanaji Ka Bhagh, Moti Dungari Road,
Jawahar Nagar, Jaipur, Rajasthan - 302004
                                                                     ----Petitioner
                                     Versus
1.     State    Of     Rajasthan,         Through          Principal    Secretary,
       Department        Of     Home,         Government           Of   Rajasthan
       Government Secretariat, Jaipur.
2.     Commissioner Of Police, Jaipur, Commissionerate, Jaipur.
3.     Deputy Commissioner Of Police, Jaipur East.
4.     Station House Officer, Police Station Lal Kothi, Jaipur East.
5.     Raheel Khatoon W/o Nasir Khan, D/o Sayed Wajeeul
       Hasan, R/o 92, Mukundgarh House, Ward-38, 153A Bane
       Vihar, Jhotwara, Jaipur, Rajasthan
                                                                  ----Respondents

For Petitioner(s) : Mr. Pratush Choudhary, Adv.

Petitioner Nasir Khan-present in person For Respondent(s) : Ms. Alka Bhatnagar, Addl.G.A.

Mr. S.S. Hasan, Sr. Adv. with Mr. Syed Kashif Hussain, Adv.

Mr. Kuldeep Singh Meena, Adv.

Mr. Surendra Singh, Inspector/SHO, Lal Kothi, Jaipur (East) Respondent No.5-Raheel Khatoon present in person

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BIRENDRA KUMAR

JUDGMENT JUDGMENT RESERVED ON : 16.01.2023

DATE OF PRONOUNCEMENT : 19.01.2023

(PER HON. BIRENDRA KUMAR, J.)

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1. The petitioner has sought for issuance of writ of habeas

corpus for production of his two children, who are in wrongful

detention of respondent No.5, the wife of the petitioner, since

05.11.2022.

2. The petitioner stated that he married with respondent No.5

on 07.06.2012. A son, Mr. Ibrahim Khan, was born on 04.08.2013

and a daughter, Khursheed Khan, was born on 26.04.2015 out of

the wedlock. Since February 2020, respondent No.5 abandoned

the petitioner as well as her children and the children were in the

custody of the petitioner before 05.11.2022. The respondent No.5

asked the petitioner that the children be sent to her for a few

hours and thereafter she would also return to stay with the

petitioner along with the children. The petitioner acceded to the

request of respondent No.5 but thereafter respondent No.5 did not

sent back the children.

3. In the reply, respondent No.5 stated that wrong fact has

been asserted by the petitioner in the writ petition rather

respondent No.5 was bitterly assaulted by the petitioner in her

matrimonial house and was thrown out from the house. The

respondent No.5 is always ready and willing to live with the

petitioner along with her children.

4. On direction of this Court, the corpus were produced before

the Court along with respondent No.5. On 21.12.2022, the

petitioner expressed before this Court his willingness to bring

respondent No.5 and children to live together, respondent No.5

had also agreed for restoration of conjugal relation. This Court

directed the petitioner to file an affidavit that he will take proper

care of respondent No.5 and her children. In the affidavit, the

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petitioner stated that he is not ready for restoration of conjugal

life with the wife rather he wants only custody of the children.

5. On 21.12.2022 and again on 16.01.2023, we interacted with

the two children. They expressed that they want to live with their

mother. Their mother is already a teacher and they are studying in

Subodh Public School at Jaipur, a School having academic

reputation. They further informed that the petitioner is having

business of emeralds. The children stated that they would go with

the father only if their mother goes with him.

6. We are conscious that the issue of illegal detention of minor

children by either of the parents can be looked into while

exercising jurisdiction of issuance of writ of habeas corpus. We are

also conscious that a roving inquiry to ascertain the truth of

assertion or denial, of the parties cannot be made in exercise of

this jurisdiction. (Tejaswini Gaud and Others vs. Shekhar

Jagdish Prasad Tewari and Others, reported in (2019) 7

Supreme Court Cases 42).

7. Learned counsel for the petitioner submits that the personal

law of the parties would not come in the way of deciding illegal

detention. The paramount consideration would be the welfare of

the child.

Learned counsel has placed reliance on the judgment of The

Hon'ble Supreme Court in the case of Tejaswini Gaud (supra).

Paragraph Nos. 26 and 27 of the judgment are being reproduced

below:-

"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

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consideration for the court ought to be child interest and welfare of the child.

27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu, it was held as under:-

49. In Goverdhan Lal v. Gajendra Kumar, 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, in M.K. Hari Govindan v. A.R.

Rajaram, 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. In Kamla Devi v. State of H.P. the Court observed:

"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 its parens patriae jurisdiction 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

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interests of the child whose welfare requires that he be in custody of one parent or the other."

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 decided solely by 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 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."

8. As held above, the paramount consideration while dealing

with the custody of the child would be the welfare of the child.

While considering welfare of the child, due weight should be given

to child's ordinary comfort, contentment, health, education,

intellectual development and favourable surroundings. During

interaction, the children stated that they are happy and

comfortable with their mother. We noticed that they are happy

with their mother and are in good health. Mother of the detenues

is a teacher and the detenues are already attending school of their

choice and capacity. Therefore, there is no scope to argue that the

children would not get intellectual development with their mother,

who is a teacher, unless they are replaced with a businessman

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father. The detenue-children stated that their maternal grand-

father and grand-mother are also along with them and they are

happy there.

9. Learned counsel for the petitioner relied on judgment of The

Hon'ble Kerala High Court in Yousuff vs. S.I. of Police and Ors.

reported in ILR 1993 (1) Kerala 511.

As noticed above, the consistent view is that while deciding

the custody of the child, paramount consideration should be

welfare of the child and in the case on hand the welfare of the

child lies in the custody of the mother. The case of Yousuff (supra)

is not helping in the present case. In Yousuff case (supra) divorce

had already taken place between the husband and wife and under

an agreement between spouse, custody of the child was given to

the father. Subsequently, the child was forcibly removed from the

custody of father by the mother. In this case, neither divorce has

taken place nor there is any agreement in between the parties

wherein custody of the child was handed over to the petitioner.

Therefore, this case is also distinguishable.

10. In Syed Saleemuddin vs. Dr. Rukhsana and Others

reported in (2001) 5 SCC 247, The Hon'ble Supreme Court

noticed that the High Court had not paid any attention to the

paramount consideration of welfare of the child while deciding the

custody of the children, therefore this case is also distinguishable

from the facts of the present case.

11. This Court cannot go into the disputed question of fact, while

exercising writ jurisdiction as to whether respondent No.5

obtained the custody of the children by deceit i.e. by making false

representation that the children would be sent back after a brief

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meeting, or assertion of respondent No.5 that she along with her

children were thrown out from the matrimonial family.

12. Since welfare of the children is to allow to stay with their

mother, we do not find any merit in this case, accordingly it stands

dismissed. However, it is made clear that by interim measure, vide

order dated 21.12.2022, this Court had allowed visiting rights to

the petitioner to meet with his children at the place where

respondent No.5 is residing. The visiting rights would continue

once in a week as per convenience of the parties. It is further

clarified that in the event of any proceeding for custody of the

child before the Competent Court, the said Court shall not be

prejudiced by this order.

(BIRENDRA KUMAR),J (PANKAJ BHANDARI),J

Ashwani/-88

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