The Lucknow Bench of the Allahabad High Court while disposing the petition, seeking custody of two minor children, said that whatever the differences arose between the spouses, the children cannot be denied company of both.
A Single Bench of Justice Shamim Ahmed passed this order while hearing a habeas corpus petition filed by Mirah Pandey Through Mother Ira Sharma Another.
The petitioner-Ira Sharma has filed this Habeas Corpus petition with the following reliefs:
“(i) to issue a writ, order or direction in the nature of Habeas Corpus commanding the respondents to produce the corpus of detenues, namely Rayan Pandey and Mirah Pandey at the earliest before the Court and to handover the custody of the said minor children to petitioner being their mother.
(ii) to issue directions to respondent no 4 through respondent No 1 and 2 for making necessary provisions for interaction and conversations between the petitioner/ mother and the minor children immediately and during pendency of the present writ petition by mode of voice and video calls.
(iii) to issue any other order or direction which the Court may deem fit and proper under the facts and circumstances of the case in favour of the petitioner in the interest of justice.
(iv) Allow the writ petition with costs.”
Counsel for the petitioner submitted that the petitioner-Ira Sharma got married to respondent No 4-Dheerendra Pandey @ Dheerendra Vikram Pandey at Dharamshala, Himachal Pradesh on 15.02.2008 as per Hindu Rites and Ceremonies.
Thereafter, the couple relocated to the U.S.A for their bright future. After shifting to U.S.A, due to their wedlock two children, one male child namely Master Rayan Pandey born on 02.10.2013 and one female child namely Mirah Pandey born on 03.04.2018 and were having American Passport and it was further submitted that after the second child was born the relationship between the husband and wife started to turn more absurd and regular dispute arose.
Thereafter, the petitioner and respondent No 4 entered into an amicable settlement through a document titled as “Matrimonial Settlement Agreement” (M.S.A) on 02.06.2022. After entering into a settlement, the petitioner and respondent No.4 approached family court and got divorce by mutual consent by the court of competent jurisdiction at U.S.A i.e Superior Court of New Jersey Chancery Division. True copy of the Matrimonial Settlement Agreement and Decree of Divorce as granted by the Courts of the USA have been filed to the habeas corpus petition.
Counsel for the petitioner further submitted that the respondent No 4 is running an IT Company in U.S.A with his broth and is earning in millions of U.S Dollars per annum but the petitioner did not take a single penny as Alimony or any amount of maintenance from the respondent No 4 at the time of divorce.
Counsel for the petitioner has drawn attention of the Court towards Article III of the M.S.A and submits that the days were fixed for the physical custody of the children but the respondent No 4 kept the petitioner in dark and on certain pretext took the children from U.S.A to India at his native place, without obtaining consent of petitioner for permanent relocation of children while the children, being born and settled in USA and having being attached to their mother and they never wanted to come to India with the respondent No 4.
Counsel for the petitioner further submitted that the son and daughter of petitioner, namely Rayan Pandey and Mirah Pandey, who are aged about 9 and 4 years respectively at present are in illegal detention of the respondent No 4-father against the judgment of the Court of U.S.A for which he is not legally entitled as he is flouting the orders of the Court of USA.
Counsel for the petitioner further prays for handing over the custody of said minor children to petitioner who is the biological mother of minor children, so that the children can be taken to the United States of America where they were born and the habeas corpus petition may be allowed by the Court.
The Court noted that,
In the case petitioner-Ira Sharma herself consented to get both the children be admitted to some reputed school in India by e-mail and she will keep on visiting India and whenever she will be in India she will visit her children at Lucknow, the place of stay of respondent No 4 and it was under these circumstances that respondent No 4 had got both the children admitted in GD Goenka Public School, Sector B Sushant Golf City, Shaheed Path, Lucknow affiliated to CBSE Board, New Delhi, where they are studying in Class IV and I.
It is not in dispute that the admission of both the children was done at the aforesaid school with the consent of the mother Ira Sharma for this reason she herself has provided her Aadhar Card and Passport copy as per e-mail dated 22.08.2022 sent to the respondent No 4, thus the case set up by the petitioner Ira Sharma that the minor children are under illegal detention of respondent No 4 have no force and there appears force in the argument of the counsel for the respondent No 4 that the habeas corpus writ petition is not maintainable as the children are not under illegal custody of the father and are studying in India with the consent of the mother Ira Sharma and for custody she may approach the correct forum in accordance with law.
The Court said that it is well settled law by a catena of judgments that while deciding the matter of custody of children, primary and paramount consideration is welfare of the children so demands then technical objections cannot come in the way.
However, while deciding the welfare of the children it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the children.
A child, especially a child of tender years, requires the love, affection, company and protection of both parents. This is not only the requirement of the child, but his/her basic human right. Just because the parents are at odds with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents.
“I am clearly of the view that it is in the best interest of the children to have parental care of both the parents, if not joint then at least separate. I have no doubt that the children need both parents and the children would be equally happy, if not happier, in the company of the mother as well, the children would perhaps be happier if they could have both their parents. Unfortunately, the parents are unable to resolve their differences and stay together. Be that as it may, the children have a right to access both parents, and get the love and affection of both parents. Whatever the differences arose between the spouses, the children cannot be denied company of both.
From perusal of the e-mail dated 22-08-2022 in which petitioner-Ira Sharma herself had consented for admission of the children in India, it is clear that the mother was well aware of the custody of detenue/children, who are with their father in India, as such it cannot be said that it was an illegal custody / detention”, the Court observed.
Master Rayan Pandey and Mirah Pandey are studying in GD Goenka Public School, Sector-B, Sushant Golf City, Shaheed Path, Lucknow and are residing with their father in Lucknow and their studies cannot be disturbed for the present academic session, therefore, in view of the discussion and observation made above, the court issues following directions :
(i) The custody of both the children; Master Rayan Pandey(son) and Mirah Pandey (daughter) shall remain with father respondent No 4-Dhirendra Pandey @ Dheerendra Vikram Pandey.
(ii) Since the mother-Ira Sharma lives in U.S.A, she is permitted to meet the children during her stay in India in the evening between 6:00 PM to 8:00 PM at the current residence of respondent no 4 with the condition of giving one week prior information to the respondent No 4- Dhirendra Pandey @ Dheerendra Vikram Pandey (father) regarding her arrival at Lucknow. It is further provided that if she is abroad, she is allowed to have conversation with her children Mirah Pandey-daughter and Rayan Pandey-son by mobile phone, whats app call or video call during 8.00 p.m to 8.30 p.m as per Indian Standard Time.
(iii) If the mother of children wants to give any gifts on account of love and affection or do anything for the well being of children then father/ respondent no 4 or any of his family members will not make any objection. However, mothers shall keep in mind that such things will be given, which are for use and safe for the children’s health.
(iv) The petitioner Ira Sharma is at liberty to approach the appropriate forum for claiming the custody of the children under the Hindu Minority and Guards Act 1956 or under the Guardians and Wards Act, 1890 as the case may be in accordance with law.
With the above observations/directions, the Court disposed of the habeas corpus petition.