The Allahabad High Court while dismissing the petition observed that where difficult and complex questions, as regard custody of minor arise, things have to be balanced between right of parties and welfare of child.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing a habeas corpus petition filed by the minor.
The habeas corpus writ petition has been filed on behalf of minor son aged about four years through his father against Smt Ashi Verma @ Hani Verma, mother of the corpus, the respondent no 4 and others.
The submissions of the petitioner are as below:-
i. The marriage of Gaurav Verma, the petitioner with respondent no 4 was solemnized in 2010. Two sons were born to the couple, elder one Granth Verma is now aged about eight and half years and the younger one Yajur Verma is now aged about four and half years. Parental houses of both sides are hardly 500 meters away from each other. The family members of his wife have been exerting pressure on him to stay with them.
ii. It is alleged in the petition that his wife Ashi Verma, all of sudden, in a preplanned manner stepped down from the train in the night of 27/28.09.2021 at Jhansi Railway Station, when they were returning from Ujjain. He lodged a missing report and she was recovered from Gwaliar railway station and was given in custody, to her father Kamlapati Verma.
In pursuance of this conspiracy between his wife and father in-law, his two sons were snatched away by his wife and her father and they left for Etawah. The petitioner requested his father-in-law and his wife to return the kids but they did not budge. They pressurized Gaurav Verma but he refused to sign certain papers.
Thereafter his wife lodged a false F.I.R as case under Sections 307, 498A, 323, 504 120 B, I.P.C, Another case under Section 125 Cr.P.C has been filed against the petitioner which was decided on the basis of a compromise. With the permission and consent of the petitioner corpus was admitted in pre-nursary class in Etawah.
However, all of sudden without informing him, Yajur Verma was withdrawn from his school at Etawah and has been admitted in a school at Lucknow. Opposite party no 4, Ashi Verma, his wife is now pursuing LLB course at Etawah. These facts have proved that Yajur Verma, their minor son is not in custody of his mother and has been left under the care of some distant relative or some other. In view of the above facts, the petitioner has no alternative remedy except to file this habeas corpus writ petition for production of his child.
iii. One of the contentions of the petitioner is that earlier a Habeas Corpus Petition was filed by respondent no 4 with regard to elder son Granth Verma which was decided by a coordinate Bench of the High Court by order dated 22.09.2022, in which following directions were issued :-
“I. The Corpus shall remain with his father till a contrary direction, if any, is passed by any Court of Law.
II. Father shall not obstruct or object the visiting rights of mother of Corpus and he shall permit his mother to meet the Corpus on any day with prior notice as well as on each Sunday in day time at his home and father will also have similar liberty to meet his younger son at his mother’s home.
III. Mother and father of Corpus are also directed not to create any ruckus during their visit at respective houses to meet the child.
IV. The Investigating Officer is directed to organize a mediation between parties as well as, if necessary, organize a counselling session for parents also.”
In view of said order passed by the High Court, the argument of the petitioner is that he was given visiting right in respect of his younger son at his mother’s house and his wife Ashi Verma has deliberately shifted his younger son to a boarding school at Lucknow, therefore, he can no longer meet him.
iv. A special appeal was filed challenging the aforesaid order dated 22.09.2022 which was decided by order dated 30.11.2022. In the aforesaid order he was again granted a right to meet his younger child Yajur Verma @Jai Verma in the house of Smt Ashi Verma. The High Court had directed Ashi Verma to allow a weekly meeting of father with his younger son, every Saturday. On the basis of the aforesaid orders dated 22.09.2022 and 30.11.2022 it is vehemently argued that the child has been deliberately removed to Lucknow just to defeat the aforesaid orders and that this facility should be restored immediately.
The Court observed that,
Admittedly the parties are husband and wife and are living separately since at least more than two years. The couple have two sons and this habeas corpus writ petition has been filed by the father seeking custody of his younger son who is admittedly about four years old.
The habeas corpus petition is no ordinary remedy and that the normal procedure would be to invoke the civil court jurisdiction under the Hindu Minority and Guardianship Act or the Guardians and Wards Act. Natural corollary therefore is that writ jurisdiction in this regard should be exercised in most suitable cases if not the exceptional ones. Secondly, where difficult and complex questions, as regard custody of minors arise, the relevant statutory provisions and the rights of parties emanating therefrom should be kept in mind. Though welfare of the child shall still remain the paramount consideration. The things have to be balanced between the right of the parties and the child’s preference where the child is capable of forming an intelligent preference with the ultimate i.e welfare of the child.
In this case the corpus, which is around four years, has been staying with his mother all along. The petitioner has not been able to show as to reasons why the custody of the corpus must change hands and how he can take better care of him rather than his mother. This has come in evidence that corpus is studying at some good educational institution at Lucknow and that his mother is having support of her family in raising the child, the Court said.
“I tried to fathom the factors involved in the matter for the purpose of exploring the chances of amicable settlement as well as for the purpose of deciding custody of the child. After long interaction with the two, I came to the conclusion that there are issues, controversies and certain happenings which cannot be solved by ordinary counselling. The parties need to go through long and sustained counselling and that in the circumstances I find it much better not to disturb the custody of the corpus at this juncture and more so to keep him away from complexities of the relationship between his parents. This probability cannot be ruled out that with a change of hands – he might be exposed to certain other realities of strained relations between his parents, of which he might be oblivious of so far. A tender and impressionable mind is not prepared for a jolt now and in case he is dislodged from his current environment, in which he may be comfortable by now, such a course of action may bring new revelations which ultimately may not be conducive for his health.
Taking into consideration all the facts and circumstances, I do not find any good reason for transferring the custody of the child to the petitioner”, the Court observed while dismissing the petition.