REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 838 OF 2019
(Arising out of SLP (Crl.) No. 1675 of 2019)
TEJASWINI GAUD AND ORS. ...Appellants
VERSUS
SHEKHAR JAGDISH PRASAD TEWARI
AND OTHERS ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 06.02.2019
passed by the High Court of Bombay in Crl.W.P. No. 5214 of 2018
in and by which the High Court held that the first respondentfather of the child being the surviving parent and in the interest of
welfare of the child, the custody of the child must be handed over
to the first respondent-father and issued writ of habeas corpus
directing the appellants to handover the custody of the minor child
to respondent No.1-father of the child.
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3. Brief facts of the case are that marriage of respondent No.1
was solemnized with Zelam on 28-05-2006. During the fifth month
of her pregnancy i.e. in May 2017, Zelam was detected with breast
cancer. Respondent No.1 and Zelam were blessed with a girl child
named Shikha on 14-08-2017. While Zelam was undergoing
treatment, child Shikha was with her father respondent No.1 till
November, 2017. Unfortunately, on 29-11-2017, respondent No. 1
was suddenly hospitalised and he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. While he
was undergoing treatment, appellant No.1-Tejaswini Gaud – one of
the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who
is the husband of Tejaswini, took Zelam along with Shikha to their
residence at Mahim, Mumbai for continuation of the treatment.
Later, in June 2018, Zelam was shifted to her paternal home along
with Shikha in Pune i.e. residence of appellant No.3-Samir
Pardeshi, brother of Zelam. In July 2018, they were again shifted to
the house of appellant No.1 in Mumbai. On 17-10-2018, Zelam
succumbed to her illness. Child Shikha continued to be in the
custody of the appellants in Pune at the residence of appellant
No.3 till 17-11-2018. Respondent No.1-father was denied the
custody of child and on 17-11-2018, he gave a complaint to
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Dattawadi Police Station, Pune. Thereafter, respondent No.1-father
approached the High Court by filing a writ petition seeking custody
of minor child Shikha. Respondent No.1-father is a post-graduate
in Management and is working as a Principal Consultant with
Wipro Limited.
4. The High Court held that respondent No.1-father, the only
surviving parent of the child is entitled to the custody of the child
and the child needs love, care and affection of the father. The
High Court took into account that respondent No.1 was
hospitalised for a serious ailment and in those circumstances, the
appellants have looked after the child and in the interest and
welfare of the child, it is just and proper that the custody of the
child is handed over back to the first respondent. However, the
High Court observed that the efforts put in by the appellants in
taking care of the child has to be recognized and so the High
Court granted appellants No.2 and 3 access to the child.
5. The appellants contend that the writ of habeas corpus cannot
be issued when efficacious alternative remedy is available to
respondent No. 1 under Hindu Minority and Guardianship Act,
1956. It was submitted that the child was handed over to the
appellants by the ailing mother of the child who has expressed her
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wish that they should take care of the child and therefore, it is not a
fit case for issuance of writ of habeas corpus which is issued only
in cases of illegal detention. It is also their contention that the
question of custody of the minor child is to be decided not on
consideration of the legal rights of the parties; but on the sole and
predominant criterion of what would best serve the interest and
welfare of the minor and, as such, the appellants who are taking
care of the child since more than a year, they alone would be
entitled to have the custody of the child in preference to
respondent No.1-father of the child.
6. Learned counsel appearing for the appellants submitted that
though the first respondent-father is a natural guardian of the
minor child Shikha and has a preferential right to claim the
custody of the minor child, 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, in this case, the
father. It was further submitted that Section 6 of the Hindu
Minority and Guardianship Act, 1956 cannot supersede the
dominant consideration as to what is conducive to the welfare of
the minor child and the welfare of the minor child has to be the
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sole consideration. In support of his contention, the learned
counsel for the appellants has placed reliance upon:-
(i) Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
SCC 92;
Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14;
G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online
Mad 472 : AIR 2005 Mad 452;
L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online
AP 80 : AIR 1981 AP 1;
Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others
1992 SCC Online All 548 : AIR 1993 All 230;
Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935;
Murari Lal Sharma and Another v. State of West Bengal and
Others 2013 SCC Online 23045 : AIR 2013 Cal 213;
R. Suresh Kumar v. K.A. Kavathi and Others
MANU/TN/8529/2006;
Athar Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
654;
Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413;
Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker
Joshi (1992) 3 SCC 573;
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42;
Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277;
Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online
Del 6661 : AIR 2018 Del 127;
A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978
SCC Online Kar 241 : AIR 1978 Kar 220.
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7. Per contra, the learned counsel appearing for the first
respondent has submitted that in view of Section 6 of the Hindu
Minority and Guardianship Act, 1956, father has the paramount
right to the custody of the children and he cannot be deprived of
the custody of the minor child unless it is shown that he is unfit to
be her guardian. The learned counsel submitted that in view of
his illness and the illness of the mother Zelam, mother and child
happened to be in Mumbai and Pune and considering the welfare
of the child, she had to be handed over to the first respondent. It
was further submitted that father being a natural guardian as per
the provisions of Section 6 of the Hindu Minority and
Guardianship Act, 1956, the appellants have no legal right for the
custody of the infant and the High Court rightly ordered the
custody of the child to respondent No.1. In support of his
contention, learned counsel for the respondents inter alia placed
reliance upon number of judgments:-
(i) Gohar Begam v. Suggi @ Nazma Begam and Others
AIR 1960 SC 93;
(ii) Smt. Manju Malini Sheshachalam D/o Mr. R.
Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621;
(iii) Amol Ramesh Pawar v. State of Maharashtra &
Others 2014 SCC Online Bom 280;
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(iv) Marggarate Maria Pulparampil Nee Feldman v. Dr.
Chacko Pulparampil and Others AIR 1970 Ker 1
(FB);
(v) Thirumalai Kumaran v. Union Territory of Dadra and
Nagar Haveli 2003 (2) Mh.L.J.;
(vi) Capt. Dushyant Somal v. Smt. Sushma Somal &
Others (1981) 2 SCC 277;
(vii) Syed Saleemuddin v. Dr. Rukhsana and Others
(2001) 5 SCC 247;
(viii) Nirmaljit Kaur (2) v. State of Punjab and Otherrs
(2006) 9 SCC 364;
(ix) Surya Vadanan v. State of Tamil Nadu and Others
(2015) 5 SCC 450;
(x) Ruchika Abbi & Anr. v. State (National Capital
Territory of Delhi) and Another (2016) 16 SCC 764;
(xi) Kanika Goel v. State of Delhi through Station House
Officer and Another (2018) 9 SCC 578.
8. We have carefully considered the rival contentions and
perused the impugned judgment and various judgments relied
upon by the parties.
9. The question falling for consideration is whether in the writ
of habeas corpus filed by respondent No.1 seeking custody of the
minor child from the appellants, the High Court was right in
ordering that the custody of minor child be handed over to
respondent No.1-father. Further question falling for consideration
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is whether handing over of the custody of the child to respondent
No.1-father is not conducive to the interest and welfare of the
minor child.
10. Section 6 of the Hindu Minority and Guardianship Act, 1956
enacts as to who can be said to be a natural guardian. As per
Section 6 of the Act, natural guardian of a Hindu Minor in respect
of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property) is
the father, in the case of a boy or an unmarried girl and after him,
the mother. Father continues to be a natural guardian, unless he
has ceased to be a Hindu or renounced the world. Section 13 of
the Act deals with the welfare of a minor. Section 13 stipulates
that in the appointment or declaration of any person as guardian
of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration. Section 13(2) stipulates that no
person shall be entitled to the guardianship by virtue of the
provisions of the Act if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
11. Maintainability of the writ of habeas corpus:- The
learned counsel for the appellants submitted that the law is wellsettled that in deciding the question of custody of minor, the
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welfare of the minor is of paramount importance and that the
custody of the minor child by the appellants cannot be said to be
illegal or improper detention so as to entertain the habeas corpus
which is an extraordinary remedy and the High Court erred in
ordering the custody of the minor child be handed over to the first
respondent-father. Placing reliance on Veena Kapoor1 and
Sarita Sharma2 and few other cases, the learned counsel for the
appellants contended that the welfare of children requires a full
and thorough inquiry and therefore, the High Court should instead
of allowing the habeas corpus petition, should have directed the
respondent to initiate appropriate proceedings in the civil court.
The learned counsel further contended that though the father
being a natural guardian has a preferential right to the custody of
the minor child, keeping in view the welfare of the child and the
facts and circumstances of the case, custody of the child by the
appellants cannot be said to be illegal or improper detention so as
to justify invoking extra-ordinary remedy by filing of the habeas
corpus petition.
12. Countering this contention, the learned counsel for
respondent No.1 submitted that in the given facts of the case, the
1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92
2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
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High Court has the extraordinary power to exercise the
jurisdiction under Article 226 of the Constitution of India and the
High Court was right in allowing the habeas corpus petition. The
learned counsel has placed reliance on Gohar Begum3 and.
Manju Malini Sheshachalam4
. Contention of respondent No.1 is
that as per Section 6 of the Hindu Minority and Guardianship Act,
respondent No.1, being the father, is the natural guardian and the
appellants have no authority to retain the custody of the child and
the refusal to hand over the custody amounts to illegal detention
of the child and therefore, the writ of habeas corpus was the
proper remedy available to him to seek redressal.
13. 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
3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93
4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621
10
law, is not his legal or natural guardian, in appropriate cases, the
writ court has jurisdiction.
14. In Gohar Begum3 where the mother had, under the
personal law, the legal right to the custody of her illegitimate
minor child, the writ was issued. In Gohar Begum3
, the Supreme
Court dealt with a petition for habeas corpus for recovery of an
illegitimate female child. Gohar alleged that Kaniz Begum,
Gohar’s mother’s sister was allegedly detaining Gohar’s infant
female child illegally. The Supreme Court took note of the position
under the Mohammedan Law that the mother of an illegitimate
female child is entitled to its custody and refusal to restore the
custody of the child to the mother would result in illegal custody of
the child. The Supreme Court held that Kaniz having no legal
right to the custody of the child and her refusal to make over the
child to the mother resulted in an illegal detention of the child
within the meaning of Section 491 Cr.P.C. of the old Code. The
Supreme Court held that the fact that Gohar had a right under the
Guardians and Wards Act is no justification for denying her right
under Section 491 Cr.P.C. The Supreme Court observed that
Gohar Begum, being the natural guardian, is entitled to maintain
the writ petition and held as under:-
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“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 Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 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.”
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.
……..
10. We further see no reason why the appellant should have been asked to
proceed under the Guardian and Wards Act for recovering the custody of
the child. She had of course the right to do so. But she had also a clear right
to an order for the custody of the child under Section 491 of the Code. The
fact that she had a right under the Guardians and Wards Act is no
justification for denying her the right under Section 491. That is well
established as will appear from the cases hereinafter cited.” (Underlining
added)
15. In Veena Kapoor1
, the issue of custody of child was
between the natural guardians who were not living together.
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Veena, the mother of the child, filed the habeas corpus petition
seeking custody of the child from her husband alleging that her
husband was having illegal custody of the one and a half year old
child. The Supreme Court directed the District Judge concerned
to take down evidence, adduced by the parties, and send a report
to the Supreme Court on the question whether considering the
interest of the minor child, its mother should be given its custody.
16. In Rajiv Bhatia5
, the habeas corpus petition was filed by
Priyanka, mother of the girl, alleging that her daughter was in
illegal custody of Rajiv, her husband’s elder brother. Rajiv relied
on an adoption deed. Priyanka took the plea that it was a
fraudulent document. The Supreme Court held that the High
Court was not entitled to examine the legality of the deed of
adoption and then come to the conclusion one way or the other
with regard to the custody of the child.
17. In Manju Malini4 where the mother filed a habeas corpus
petition seeking custody of her minor child Tanishka from her
sister and brother-in-law who refused to hand over the child to the
mother, the Karnataka High Court held as under:-
“24. The moment respondents 1 and 2 refused to handover the custody of
minor Tanishka to the petitioner the natural and legal guardian, the
5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525
13
continuation of her custody with them becomes illegal detention. Such
intentional act on the part of respondent Nos.1 and 2 even amounts to the
offence of kidnapping punishable under S.361 of IPC. Therefore there is no
merit in the contention that the writ petition is not maintainable and
respondent Nos.1 and 2 are in legal custody of baby Tanishka.”
18. 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.
19. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and
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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.
20. 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 respondentfather 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
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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.
21. Custody of the child – removed from foreign countries
and brought to India:- In a number of judgments, the Supreme
Court considered the conduct of a summary or elaborate enquiry
on the question of custody by the court in the country to which the
child has been removed. In number of decisions, the Supreme
Court dealt with habeas corpus petition filed either before it under
Article 32 of the Constitution of India or the correctness of the
order passed by the High Court in exercise of jurisdiction under
Article 226 of the Constitution of India on the question of custody
of the child who had been removed from the foreign countries and
brought to India and the question of repatriation of the minor
children to the country from where he/she may have been
removed by a parent or other person. In number of cases, the
Supreme Court has taken the view that the High Court may
invoke the extraordinary jurisdiction to determine the validity of
the detention. However, the Court has taken view that the order of
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the foreign court must yield to the welfare of the child. After
referring to various judgments, in Ruchi Majoo6
, it was held as
under:-
“58. Proceedings in the nature of habeas corpus are summary in nature,
where the legality of the detention of the alleged detenu is examined on the
basis of affidavits placed by the parties. Even so, nothing prevents the High
Court from embarking upon a detailed enquiry in cases where the welfare of
a minor is in question, which is the paramount consideration for the Court
while exercising its parens patriae jurisdiction. A High Court may, therefore,
invoke its extraordinary jurisdiction to determine the validity of the detention,
in cases that fall within its jurisdiction and may also issue orders as to
custody of the minor depending upon how the Court views the rival claims,
if any, to such custody.
59. The Court may also direct repatriation of the minor child to the country
from where he/she may have been removed by a parent or other person; as
was directed by this Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa
Aggarwal (2010) 1 SCC 591 cases or refuse to do so as was the position in
Sarita Sharma case (2000) 3 SCC 14. What is important is that so long as
the alleged detenu is within the jurisdiction of the High Court no question of
its competence to pass appropriate orders arises. The writ court’s
jurisdiction to make appropriate orders regarding custody arises no sooner
it is found that the alleged detenu is within its territorial jurisdiction.”
22. After referring to various judgments and considering the
principles for issuance of writ of habeas corpus concerning the
minor child brought to India in violation of the order of the foreign
court, in Nithya Anand7
, it was held as under:-
6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
17
“46. The High Court while dealing with the petition for issuance of a writ of
habeas corpus concerning a minor child, in a given case, may direct return
of the child or decline to change the custody of the child keeping in mind all
the attending facts and circumstances including the settled legal position
referred to above. Once again, we may hasten to add that the decision of
the court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the welfare of
the child which is of paramount consideration. The order of the foreign court
must yield to the welfare of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of the directions given by the
foreign court against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably, the writ petitioner can
take recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign court or to resort to any
other proceedings as may be permissible in law before the Indian Court for
the custody of the child, if so advised.”
23. In Sarita Sharma2
, the tussle over the custody of two minor
children was between their separated mother and father. The
Family Court of USA while passing the decree of divorce gave
custody rights to the father. When the mother flew to India with
the children, the father approached the High Court by filing a
habeas corpus petition. The High Court directed the mother to
handover the custody to the father. The Supreme Court in appeal
observed that the High Court should instead of allowing the
habeas corpus petition should have directed the parties to initiate
appropriate proceedings wherein a thorough enquiry into the
interest of children could be made.
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24. In the recent decision in Lahari Sakhamuri8
, this court
referred to all the judgments regarding the custody of the minor
children when the parents are non-residents (NRI). We have
referred to the above judgments relating to custody of the child
removed from foreign country and brought to India for the sake of
completion and to point out that there is a significant difference in
so far the children removed from foreign countries and brought
into India.
25. Welfare of the minor child is the paramount
consideration:- 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.
26. 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,
8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
19
education, intellectual development and favourable surroundings,
in Nil Ratan Kundu9
, it was held as under:-
“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court
observed that it is true that the father is a natural guardian of a minor child
and therefore has a preferential right to claim the custody of his son, but in
matters concerning the custody of a minor child, the paramount
consideration is the welfare of the minor and not the legal right of a
particular party. Section 6 of the 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare of the minor child. It
was also observed that keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out the wishes of the child as to
with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the
Court held that custody cases cannot be decided on documents, oral
evidence or precedents without reference to “human touch”. The human
touch is the primary one for the welfare of the minor since the other
materials may be created either by the parties themselves or on the advice
of counsel to suit their convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 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 interests
of the child whose welfare requires that he be in custody of one parent
or the other.”
9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
20
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.”
27. Reliance was placed upon Gaurav Nagpal10, where the
Supreme Court held as under:-
“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148)
The dominant matter for the consideration of the court is the welfare of
the child. But the welfare of the child is not to be measured by money
only nor merely physical comfort. The word ‘welfare’ must be taken in
its widest sense. The moral or religious welfare of the child must be
considered as well as its physical well-being. Nor can the tie of
affection be disregarded.” (emphasis supplied)
………
50. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The court has not only to
look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does not give emphasis
10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
21
on what the parties say, it has to exercise a jurisdiction which is aimed at
the welfare of the minor. As observed recently in Mausami Moitra Ganguli
case (2008) 7 SCC 673, the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development and
favourable surroundings but over and above physical comforts, the moral
and ethical values have also to be noted. They are equal if not more
important than the others.
51. 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.
28. Contending that however legitimate the claims of the parties
are, they are subject to the interest and welfare of the child, in
Rosy Jacob11
, this Court has observed that:-
“7. .… the principle on which the court should decide the fitness of the
guardian mainly depends on two factors: (i) the father’s fitness or otherwise
to be the guardian, and (ii) the interests of the minors.”
……..
“15. .... The children are not mere chattels : nor are they mere play-things
for their parents. Absolute right of parents over the destinies and the lives of
their children has, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up
in a normal balanced manner to be useful members of the society and the
guardian court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the requirements of
welfare of the minor children and the rights of their respective parents over
them. The approach of the learned Single Judge, in our view, was correct
and we agree with him. The Letters Patent Bench on appeal seems to us to
11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
22
have erred in reversing him on grounds which we are unable to appreciate.”
29. The learned counsel for the appellants has placed reliance
upon G. Eva Mary Elezabath12 where the custody of the minor
child aged one month who had been abandoned by father in
church premises immediately on death of his wife was in
question. The custody of the child was accordingly handed over
to the petitioner thereon who took care of the child for two and
half years by the Pastor of the Church. The father snatched the
child after two and a half years from the custody of the petitioner.
The father of the child who has abandoned the child though a
natural guardian therefore was declined the custody.
30. In Kirtikumar Maheshankar Joshi13, the father of the
children was facing charge under Section 498-A IPC and the
children expressed their willingness to remain with their maternal
uncle who was looking after them very well and the children
expressed their desire not to go with their father. The Supreme
Court found the children intelligent enough to understand their
well-being and in the circumstances of the case, handed over the
custody to the maternal uncle instead of their father.
31. In the case at hand, the father is the only natural guardian
12 G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472
13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573
23
alive and has neither abandoned nor neglected the child. Only
due to the peculiar circumstances of the case, the child was taken
care of by the appellants. Therefore, the cases cited by the
appellants are distinguishable on facts and cannot be applied to
deny the custody of the child to the father.
32. The child Shikha went into the custody of the appellants in
strange and unfortunate situation. Appellants No.1 and 2 are the
sisters of deceased Zelam. Appellant No.4 is the husband of
appellant No.1. All three of them reside at Mahim, Mumbai.
Appellant No.3 is the married brother of Zelam who resides in
Pune. During the fifth month of her pregnancy, Zelam was
diagnosed with stage 3/4 breast cancer. Zelam gave birth to child
Shikha on 14-08-2017. On 29-11-2017, respondent No.1
collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. He was
kept on ventilator for nearly eight days, during which period,
appellants took care of Zelam and the child. The first respondent
had to undergo treatment in different hospitals for a prolonged
period. From 29-11-2017 to June 2018, Zelam and Shikha stayed
at the residence of appellant’s in Mumbai. During this period,
24
Zelam underwent masectomy surgery. Zelam later relapsed into
cancer and decided to get treatment from a doctor in Pune and
therefore, shifted to appellant No.3’s house at Pune with Shikha
and Zelam passed away on 17-10-2018. After recovering from his
illness, the respondent visited Pune to seek custody of the child.
But when they refused to hand over the custody, the father was
constrained to file the writ petition seeking custody of the child.
The child Shikha thus went to the custody of the appellants in
unavoidable conditions. Only the circumstances involving his
health prevented the father from taking care of the child. Under
Section 6 of the Act, the father is the natural guardian and he is
entitled to the custody of the child and the appellants have no
legal right to the custody of the child. In determining the question
as to who should be given custody of a minor child, the
paramount consideration is the `welfare of the child' and not rights
of the parents under a statute for the time being in force.
33. 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 of the child shall include
various factors like ethical upbringing, economic well-being of the
25
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.
34. The welfare of the child has to be determined owing to the
facts and circumstances of each case and the court cannot take a
pedantic approach. In the present case, the first respondent has
neither abandoned the child nor has deprived the child of a right
to his love and affection. The circumstances were such that due
to illness of the parents, the appellants had to take care of the
child for some time. Merely because, the appellants being the
relatives took care of the child for some time, they cannot retain
the custody of the child. It is not the case of the appellants that
the first respondent is unfit to take care of the child except
contending that he has no female support to take care of the
child. The first respondent is fully recovered from his illness and
is now healthy and having the support of his mother and is able to
take care of the child.
35. The appellants submit that handing over of the child to the
26
first respondent would adversely affect her and that the custody
can be handed over after a few years. The child is only 1½ years
old and the child was with the father for about four months after
her birth. If no custody is granted to the first respondent, the
court would be depriving both the child and the father of each
other’s love and affection to which they are entitled. As the child
is in tender age i.e. 1½ years, her choice cannot be ascertained
at this stage. With the passage of time, she might develop more
bonding with the appellants and after some time, she may be
reluctant to go to her father in which case, the first respondent
might be completely deprived of her child’s love and affection.
Keeping in view the welfare of the child and the right of the father
to have her custody and after consideration of all the facts and
circumstances of the case, we find that the High Court was right
in holding that the welfare of the child will be best served by
handing over the custody of the child to the first respondent.
36. Taking away the child from the custody of the appellants and
handing over the custody of the child to the first respondent might
cause some problem initially; but, in our view, that will be
neutralized with the passage of time. However, till the child is
settled down in the atmosphere of the first respondent-father’s
27
house, the appellants No.2 and 3 shall have access to the child
initially for a period of three months for the entire day i.e. 08.00
AM to 06.00 PM at the residence of the first respondent. The first
respondent shall ensure the comfort of appellants No.2 and 3
during such time of their stay in his house. After three months, the
appellants No.2 and 3 shall visit the child at the first respondent’s
house from 10.00 AM to 04.00 PM on Saturdays and Sundays.
After the child completes four years, the appellants No.2 and 3
are permitted to take the child on every Saturday and Sunday
from the residence of the father from 11.00 AM to 05.00 PM and
shall hand over the custody of the child back to the first
respondent-father before 05.00 PM. For any further modification
of the visitation rights, either parties are at liberty to approach the
High Court.
37. The impugned judgment of the High Court dated 06.02.2019
in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above
directions and observations. The appellants shall hand over the
custody of the child to the first respondent-father on 10.05.2019
at 10.00 AM at the residence of the first respondent. Keeping in
view the interest of the child, both parties shall co-operate with
28
each other in complying with the directions of the Court. This
appeal is accordingly disposed of.
……………………….J.
[R. BANUMATHI]
………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 06, 2019
29
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 838 OF 2019
(Arising out of SLP (Crl.) No. 1675 of 2019)
TEJASWINI GAUD AND ORS. ...Appellants
VERSUS
SHEKHAR JAGDISH PRASAD TEWARI
AND OTHERS ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 06.02.2019
passed by the High Court of Bombay in Crl.W.P. No. 5214 of 2018
in and by which the High Court held that the first respondentfather of the child being the surviving parent and in the interest of
welfare of the child, the custody of the child must be handed over
to the first respondent-father and issued writ of habeas corpus
directing the appellants to handover the custody of the minor child
to respondent No.1-father of the child.
1
3. Brief facts of the case are that marriage of respondent No.1
was solemnized with Zelam on 28-05-2006. During the fifth month
of her pregnancy i.e. in May 2017, Zelam was detected with breast
cancer. Respondent No.1 and Zelam were blessed with a girl child
named Shikha on 14-08-2017. While Zelam was undergoing
treatment, child Shikha was with her father respondent No.1 till
November, 2017. Unfortunately, on 29-11-2017, respondent No. 1
was suddenly hospitalised and he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. While he
was undergoing treatment, appellant No.1-Tejaswini Gaud – one of
the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who
is the husband of Tejaswini, took Zelam along with Shikha to their
residence at Mahim, Mumbai for continuation of the treatment.
Later, in June 2018, Zelam was shifted to her paternal home along
with Shikha in Pune i.e. residence of appellant No.3-Samir
Pardeshi, brother of Zelam. In July 2018, they were again shifted to
the house of appellant No.1 in Mumbai. On 17-10-2018, Zelam
succumbed to her illness. Child Shikha continued to be in the
custody of the appellants in Pune at the residence of appellant
No.3 till 17-11-2018. Respondent No.1-father was denied the
custody of child and on 17-11-2018, he gave a complaint to
2
Dattawadi Police Station, Pune. Thereafter, respondent No.1-father
approached the High Court by filing a writ petition seeking custody
of minor child Shikha. Respondent No.1-father is a post-graduate
in Management and is working as a Principal Consultant with
Wipro Limited.
4. The High Court held that respondent No.1-father, the only
surviving parent of the child is entitled to the custody of the child
and the child needs love, care and affection of the father. The
High Court took into account that respondent No.1 was
hospitalised for a serious ailment and in those circumstances, the
appellants have looked after the child and in the interest and
welfare of the child, it is just and proper that the custody of the
child is handed over back to the first respondent. However, the
High Court observed that the efforts put in by the appellants in
taking care of the child has to be recognized and so the High
Court granted appellants No.2 and 3 access to the child.
5. The appellants contend that the writ of habeas corpus cannot
be issued when efficacious alternative remedy is available to
respondent No. 1 under Hindu Minority and Guardianship Act,
1956. It was submitted that the child was handed over to the
appellants by the ailing mother of the child who has expressed her
3
wish that they should take care of the child and therefore, it is not a
fit case for issuance of writ of habeas corpus which is issued only
in cases of illegal detention. It is also their contention that the
question of custody of the minor child is to be decided not on
consideration of the legal rights of the parties; but on the sole and
predominant criterion of what would best serve the interest and
welfare of the minor and, as such, the appellants who are taking
care of the child since more than a year, they alone would be
entitled to have the custody of the child in preference to
respondent No.1-father of the child.
6. Learned counsel appearing for the appellants submitted that
though the first respondent-father is a natural guardian of the
minor child Shikha and has a preferential right to claim the
custody of the minor child, 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, in this case, the
father. It was further submitted that Section 6 of the Hindu
Minority and Guardianship Act, 1956 cannot supersede the
dominant consideration as to what is conducive to the welfare of
the minor child and the welfare of the minor child has to be the
4
sole consideration. In support of his contention, the learned
counsel for the appellants has placed reliance upon:-
(i) Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
SCC 92;
Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14;
G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online
Mad 472 : AIR 2005 Mad 452;
L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online
AP 80 : AIR 1981 AP 1;
Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others
1992 SCC Online All 548 : AIR 1993 All 230;
Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935;
Murari Lal Sharma and Another v. State of West Bengal and
Others 2013 SCC Online 23045 : AIR 2013 Cal 213;
R. Suresh Kumar v. K.A. Kavathi and Others
MANU/TN/8529/2006;
Athar Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
654;
Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413;
Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker
Joshi (1992) 3 SCC 573;
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42;
Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277;
Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online
Del 6661 : AIR 2018 Del 127;
A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978
SCC Online Kar 241 : AIR 1978 Kar 220.
5
7. Per contra, the learned counsel appearing for the first
respondent has submitted that in view of Section 6 of the Hindu
Minority and Guardianship Act, 1956, father has the paramount
right to the custody of the children and he cannot be deprived of
the custody of the minor child unless it is shown that he is unfit to
be her guardian. The learned counsel submitted that in view of
his illness and the illness of the mother Zelam, mother and child
happened to be in Mumbai and Pune and considering the welfare
of the child, she had to be handed over to the first respondent. It
was further submitted that father being a natural guardian as per
the provisions of Section 6 of the Hindu Minority and
Guardianship Act, 1956, the appellants have no legal right for the
custody of the infant and the High Court rightly ordered the
custody of the child to respondent No.1. In support of his
contention, learned counsel for the respondents inter alia placed
reliance upon number of judgments:-
(i) Gohar Begam v. Suggi @ Nazma Begam and Others
AIR 1960 SC 93;
(ii) Smt. Manju Malini Sheshachalam D/o Mr. R.
Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621;
(iii) Amol Ramesh Pawar v. State of Maharashtra &
Others 2014 SCC Online Bom 280;
6
(iv) Marggarate Maria Pulparampil Nee Feldman v. Dr.
Chacko Pulparampil and Others AIR 1970 Ker 1
(FB);
(v) Thirumalai Kumaran v. Union Territory of Dadra and
Nagar Haveli 2003 (2) Mh.L.J.;
(vi) Capt. Dushyant Somal v. Smt. Sushma Somal &
Others (1981) 2 SCC 277;
(vii) Syed Saleemuddin v. Dr. Rukhsana and Others
(2001) 5 SCC 247;
(viii) Nirmaljit Kaur (2) v. State of Punjab and Otherrs
(2006) 9 SCC 364;
(ix) Surya Vadanan v. State of Tamil Nadu and Others
(2015) 5 SCC 450;
(x) Ruchika Abbi & Anr. v. State (National Capital
Territory of Delhi) and Another (2016) 16 SCC 764;
(xi) Kanika Goel v. State of Delhi through Station House
Officer and Another (2018) 9 SCC 578.
8. We have carefully considered the rival contentions and
perused the impugned judgment and various judgments relied
upon by the parties.
9. The question falling for consideration is whether in the writ
of habeas corpus filed by respondent No.1 seeking custody of the
minor child from the appellants, the High Court was right in
ordering that the custody of minor child be handed over to
respondent No.1-father. Further question falling for consideration
7
is whether handing over of the custody of the child to respondent
No.1-father is not conducive to the interest and welfare of the
minor child.
10. Section 6 of the Hindu Minority and Guardianship Act, 1956
enacts as to who can be said to be a natural guardian. As per
Section 6 of the Act, natural guardian of a Hindu Minor in respect
of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property) is
the father, in the case of a boy or an unmarried girl and after him,
the mother. Father continues to be a natural guardian, unless he
has ceased to be a Hindu or renounced the world. Section 13 of
the Act deals with the welfare of a minor. Section 13 stipulates
that in the appointment or declaration of any person as guardian
of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration. Section 13(2) stipulates that no
person shall be entitled to the guardianship by virtue of the
provisions of the Act if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
11. Maintainability of the writ of habeas corpus:- The
learned counsel for the appellants submitted that the law is wellsettled that in deciding the question of custody of minor, the
8
welfare of the minor is of paramount importance and that the
custody of the minor child by the appellants cannot be said to be
illegal or improper detention so as to entertain the habeas corpus
which is an extraordinary remedy and the High Court erred in
ordering the custody of the minor child be handed over to the first
respondent-father. Placing reliance on Veena Kapoor1 and
Sarita Sharma2 and few other cases, the learned counsel for the
appellants contended that the welfare of children requires a full
and thorough inquiry and therefore, the High Court should instead
of allowing the habeas corpus petition, should have directed the
respondent to initiate appropriate proceedings in the civil court.
The learned counsel further contended that though the father
being a natural guardian has a preferential right to the custody of
the minor child, keeping in view the welfare of the child and the
facts and circumstances of the case, custody of the child by the
appellants cannot be said to be illegal or improper detention so as
to justify invoking extra-ordinary remedy by filing of the habeas
corpus petition.
12. Countering this contention, the learned counsel for
respondent No.1 submitted that in the given facts of the case, the
1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92
2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
9
High Court has the extraordinary power to exercise the
jurisdiction under Article 226 of the Constitution of India and the
High Court was right in allowing the habeas corpus petition. The
learned counsel has placed reliance on Gohar Begum3 and.
Manju Malini Sheshachalam4
. Contention of respondent No.1 is
that as per Section 6 of the Hindu Minority and Guardianship Act,
respondent No.1, being the father, is the natural guardian and the
appellants have no authority to retain the custody of the child and
the refusal to hand over the custody amounts to illegal detention
of the child and therefore, the writ of habeas corpus was the
proper remedy available to him to seek redressal.
13. 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
3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93
4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621
10
law, is not his legal or natural guardian, in appropriate cases, the
writ court has jurisdiction.
14. In Gohar Begum3 where the mother had, under the
personal law, the legal right to the custody of her illegitimate
minor child, the writ was issued. In Gohar Begum3
, the Supreme
Court dealt with a petition for habeas corpus for recovery of an
illegitimate female child. Gohar alleged that Kaniz Begum,
Gohar’s mother’s sister was allegedly detaining Gohar’s infant
female child illegally. The Supreme Court took note of the position
under the Mohammedan Law that the mother of an illegitimate
female child is entitled to its custody and refusal to restore the
custody of the child to the mother would result in illegal custody of
the child. The Supreme Court held that Kaniz having no legal
right to the custody of the child and her refusal to make over the
child to the mother resulted in an illegal detention of the child
within the meaning of Section 491 Cr.P.C. of the old Code. The
Supreme Court held that the fact that Gohar had a right under the
Guardians and Wards Act is no justification for denying her right
under Section 491 Cr.P.C. The Supreme Court observed that
Gohar Begum, being the natural guardian, is entitled to maintain
the writ petition and held as under:-
11
“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 Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 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.”
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.
……..
10. We further see no reason why the appellant should have been asked to
proceed under the Guardian and Wards Act for recovering the custody of
the child. She had of course the right to do so. But she had also a clear right
to an order for the custody of the child under Section 491 of the Code. The
fact that she had a right under the Guardians and Wards Act is no
justification for denying her the right under Section 491. That is well
established as will appear from the cases hereinafter cited.” (Underlining
added)
15. In Veena Kapoor1
, the issue of custody of child was
between the natural guardians who were not living together.
12
Veena, the mother of the child, filed the habeas corpus petition
seeking custody of the child from her husband alleging that her
husband was having illegal custody of the one and a half year old
child. The Supreme Court directed the District Judge concerned
to take down evidence, adduced by the parties, and send a report
to the Supreme Court on the question whether considering the
interest of the minor child, its mother should be given its custody.
16. In Rajiv Bhatia5
, the habeas corpus petition was filed by
Priyanka, mother of the girl, alleging that her daughter was in
illegal custody of Rajiv, her husband’s elder brother. Rajiv relied
on an adoption deed. Priyanka took the plea that it was a
fraudulent document. The Supreme Court held that the High
Court was not entitled to examine the legality of the deed of
adoption and then come to the conclusion one way or the other
with regard to the custody of the child.
17. In Manju Malini4 where the mother filed a habeas corpus
petition seeking custody of her minor child Tanishka from her
sister and brother-in-law who refused to hand over the child to the
mother, the Karnataka High Court held as under:-
“24. The moment respondents 1 and 2 refused to handover the custody of
minor Tanishka to the petitioner the natural and legal guardian, the
5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525
13
continuation of her custody with them becomes illegal detention. Such
intentional act on the part of respondent Nos.1 and 2 even amounts to the
offence of kidnapping punishable under S.361 of IPC. Therefore there is no
merit in the contention that the writ petition is not maintainable and
respondent Nos.1 and 2 are in legal custody of baby Tanishka.”
18. 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.
19. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and
14
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.
20. 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 respondentfather 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
15
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.
21. Custody of the child – removed from foreign countries
and brought to India:- In a number of judgments, the Supreme
Court considered the conduct of a summary or elaborate enquiry
on the question of custody by the court in the country to which the
child has been removed. In number of decisions, the Supreme
Court dealt with habeas corpus petition filed either before it under
Article 32 of the Constitution of India or the correctness of the
order passed by the High Court in exercise of jurisdiction under
Article 226 of the Constitution of India on the question of custody
of the child who had been removed from the foreign countries and
brought to India and the question of repatriation of the minor
children to the country from where he/she may have been
removed by a parent or other person. In number of cases, the
Supreme Court has taken the view that the High Court may
invoke the extraordinary jurisdiction to determine the validity of
the detention. However, the Court has taken view that the order of
16
the foreign court must yield to the welfare of the child. After
referring to various judgments, in Ruchi Majoo6
, it was held as
under:-
“58. Proceedings in the nature of habeas corpus are summary in nature,
where the legality of the detention of the alleged detenu is examined on the
basis of affidavits placed by the parties. Even so, nothing prevents the High
Court from embarking upon a detailed enquiry in cases where the welfare of
a minor is in question, which is the paramount consideration for the Court
while exercising its parens patriae jurisdiction. A High Court may, therefore,
invoke its extraordinary jurisdiction to determine the validity of the detention,
in cases that fall within its jurisdiction and may also issue orders as to
custody of the minor depending upon how the Court views the rival claims,
if any, to such custody.
59. The Court may also direct repatriation of the minor child to the country
from where he/she may have been removed by a parent or other person; as
was directed by this Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa
Aggarwal (2010) 1 SCC 591 cases or refuse to do so as was the position in
Sarita Sharma case (2000) 3 SCC 14. What is important is that so long as
the alleged detenu is within the jurisdiction of the High Court no question of
its competence to pass appropriate orders arises. The writ court’s
jurisdiction to make appropriate orders regarding custody arises no sooner
it is found that the alleged detenu is within its territorial jurisdiction.”
22. After referring to various judgments and considering the
principles for issuance of writ of habeas corpus concerning the
minor child brought to India in violation of the order of the foreign
court, in Nithya Anand7
, it was held as under:-
6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
17
“46. The High Court while dealing with the petition for issuance of a writ of
habeas corpus concerning a minor child, in a given case, may direct return
of the child or decline to change the custody of the child keeping in mind all
the attending facts and circumstances including the settled legal position
referred to above. Once again, we may hasten to add that the decision of
the court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the welfare of
the child which is of paramount consideration. The order of the foreign court
must yield to the welfare of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of the directions given by the
foreign court against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably, the writ petitioner can
take recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign court or to resort to any
other proceedings as may be permissible in law before the Indian Court for
the custody of the child, if so advised.”
23. In Sarita Sharma2
, the tussle over the custody of two minor
children was between their separated mother and father. The
Family Court of USA while passing the decree of divorce gave
custody rights to the father. When the mother flew to India with
the children, the father approached the High Court by filing a
habeas corpus petition. The High Court directed the mother to
handover the custody to the father. The Supreme Court in appeal
observed that the High Court should instead of allowing the
habeas corpus petition should have directed the parties to initiate
appropriate proceedings wherein a thorough enquiry into the
interest of children could be made.
18
24. In the recent decision in Lahari Sakhamuri8
, this court
referred to all the judgments regarding the custody of the minor
children when the parents are non-residents (NRI). We have
referred to the above judgments relating to custody of the child
removed from foreign country and brought to India for the sake of
completion and to point out that there is a significant difference in
so far the children removed from foreign countries and brought
into India.
25. Welfare of the minor child is the paramount
consideration:- 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.
26. 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,
8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
19
education, intellectual development and favourable surroundings,
in Nil Ratan Kundu9
, it was held as under:-
“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court
observed that it is true that the father is a natural guardian of a minor child
and therefore has a preferential right to claim the custody of his son, but in
matters concerning the custody of a minor child, the paramount
consideration is the welfare of the minor and not the legal right of a
particular party. Section 6 of the 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare of the minor child. It
was also observed that keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out the wishes of the child as to
with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the
Court held that custody cases cannot be decided on documents, oral
evidence or precedents without reference to “human touch”. The human
touch is the primary one for the welfare of the minor since the other
materials may be created either by the parties themselves or on the advice
of counsel to suit their convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 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 interests
of the child whose welfare requires that he be in custody of one parent
or the other.”
9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
20
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.”
27. Reliance was placed upon Gaurav Nagpal10, where the
Supreme Court held as under:-
“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148)
The dominant matter for the consideration of the court is the welfare of
the child. But the welfare of the child is not to be measured by money
only nor merely physical comfort. The word ‘welfare’ must be taken in
its widest sense. The moral or religious welfare of the child must be
considered as well as its physical well-being. Nor can the tie of
affection be disregarded.” (emphasis supplied)
………
50. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The court has not only to
look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does not give emphasis
10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
21
on what the parties say, it has to exercise a jurisdiction which is aimed at
the welfare of the minor. As observed recently in Mausami Moitra Ganguli
case (2008) 7 SCC 673, the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development and
favourable surroundings but over and above physical comforts, the moral
and ethical values have also to be noted. They are equal if not more
important than the others.
51. 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.
28. Contending that however legitimate the claims of the parties
are, they are subject to the interest and welfare of the child, in
Rosy Jacob11
, this Court has observed that:-
“7. .… the principle on which the court should decide the fitness of the
guardian mainly depends on two factors: (i) the father’s fitness or otherwise
to be the guardian, and (ii) the interests of the minors.”
……..
“15. .... The children are not mere chattels : nor are they mere play-things
for their parents. Absolute right of parents over the destinies and the lives of
their children has, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up
in a normal balanced manner to be useful members of the society and the
guardian court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the requirements of
welfare of the minor children and the rights of their respective parents over
them. The approach of the learned Single Judge, in our view, was correct
and we agree with him. The Letters Patent Bench on appeal seems to us to
11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
22
have erred in reversing him on grounds which we are unable to appreciate.”
29. The learned counsel for the appellants has placed reliance
upon G. Eva Mary Elezabath12 where the custody of the minor
child aged one month who had been abandoned by father in
church premises immediately on death of his wife was in
question. The custody of the child was accordingly handed over
to the petitioner thereon who took care of the child for two and
half years by the Pastor of the Church. The father snatched the
child after two and a half years from the custody of the petitioner.
The father of the child who has abandoned the child though a
natural guardian therefore was declined the custody.
30. In Kirtikumar Maheshankar Joshi13, the father of the
children was facing charge under Section 498-A IPC and the
children expressed their willingness to remain with their maternal
uncle who was looking after them very well and the children
expressed their desire not to go with their father. The Supreme
Court found the children intelligent enough to understand their
well-being and in the circumstances of the case, handed over the
custody to the maternal uncle instead of their father.
31. In the case at hand, the father is the only natural guardian
12 G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472
13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573
23
alive and has neither abandoned nor neglected the child. Only
due to the peculiar circumstances of the case, the child was taken
care of by the appellants. Therefore, the cases cited by the
appellants are distinguishable on facts and cannot be applied to
deny the custody of the child to the father.
32. The child Shikha went into the custody of the appellants in
strange and unfortunate situation. Appellants No.1 and 2 are the
sisters of deceased Zelam. Appellant No.4 is the husband of
appellant No.1. All three of them reside at Mahim, Mumbai.
Appellant No.3 is the married brother of Zelam who resides in
Pune. During the fifth month of her pregnancy, Zelam was
diagnosed with stage 3/4 breast cancer. Zelam gave birth to child
Shikha on 14-08-2017. On 29-11-2017, respondent No.1
collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. He was
kept on ventilator for nearly eight days, during which period,
appellants took care of Zelam and the child. The first respondent
had to undergo treatment in different hospitals for a prolonged
period. From 29-11-2017 to June 2018, Zelam and Shikha stayed
at the residence of appellant’s in Mumbai. During this period,
24
Zelam underwent masectomy surgery. Zelam later relapsed into
cancer and decided to get treatment from a doctor in Pune and
therefore, shifted to appellant No.3’s house at Pune with Shikha
and Zelam passed away on 17-10-2018. After recovering from his
illness, the respondent visited Pune to seek custody of the child.
But when they refused to hand over the custody, the father was
constrained to file the writ petition seeking custody of the child.
The child Shikha thus went to the custody of the appellants in
unavoidable conditions. Only the circumstances involving his
health prevented the father from taking care of the child. Under
Section 6 of the Act, the father is the natural guardian and he is
entitled to the custody of the child and the appellants have no
legal right to the custody of the child. In determining the question
as to who should be given custody of a minor child, the
paramount consideration is the `welfare of the child' and not rights
of the parents under a statute for the time being in force.
33. 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 of the child shall include
various factors like ethical upbringing, economic well-being of the
25
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.
34. The welfare of the child has to be determined owing to the
facts and circumstances of each case and the court cannot take a
pedantic approach. In the present case, the first respondent has
neither abandoned the child nor has deprived the child of a right
to his love and affection. The circumstances were such that due
to illness of the parents, the appellants had to take care of the
child for some time. Merely because, the appellants being the
relatives took care of the child for some time, they cannot retain
the custody of the child. It is not the case of the appellants that
the first respondent is unfit to take care of the child except
contending that he has no female support to take care of the
child. The first respondent is fully recovered from his illness and
is now healthy and having the support of his mother and is able to
take care of the child.
35. The appellants submit that handing over of the child to the
26
first respondent would adversely affect her and that the custody
can be handed over after a few years. The child is only 1½ years
old and the child was with the father for about four months after
her birth. If no custody is granted to the first respondent, the
court would be depriving both the child and the father of each
other’s love and affection to which they are entitled. As the child
is in tender age i.e. 1½ years, her choice cannot be ascertained
at this stage. With the passage of time, she might develop more
bonding with the appellants and after some time, she may be
reluctant to go to her father in which case, the first respondent
might be completely deprived of her child’s love and affection.
Keeping in view the welfare of the child and the right of the father
to have her custody and after consideration of all the facts and
circumstances of the case, we find that the High Court was right
in holding that the welfare of the child will be best served by
handing over the custody of the child to the first respondent.
36. Taking away the child from the custody of the appellants and
handing over the custody of the child to the first respondent might
cause some problem initially; but, in our view, that will be
neutralized with the passage of time. However, till the child is
settled down in the atmosphere of the first respondent-father’s
27
house, the appellants No.2 and 3 shall have access to the child
initially for a period of three months for the entire day i.e. 08.00
AM to 06.00 PM at the residence of the first respondent. The first
respondent shall ensure the comfort of appellants No.2 and 3
during such time of their stay in his house. After three months, the
appellants No.2 and 3 shall visit the child at the first respondent’s
house from 10.00 AM to 04.00 PM on Saturdays and Sundays.
After the child completes four years, the appellants No.2 and 3
are permitted to take the child on every Saturday and Sunday
from the residence of the father from 11.00 AM to 05.00 PM and
shall hand over the custody of the child back to the first
respondent-father before 05.00 PM. For any further modification
of the visitation rights, either parties are at liberty to approach the
High Court.
37. The impugned judgment of the High Court dated 06.02.2019
in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above
directions and observations. The appellants shall hand over the
custody of the child to the first respondent-father on 10.05.2019
at 10.00 AM at the residence of the first respondent. Keeping in
view the interest of the child, both parties shall co-operate with
28
each other in complying with the directions of the Court. This
appeal is accordingly disposed of.
……………………….J.
[R. BANUMATHI]
………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 06, 2019
29
