its absolutely codswallop to advice for acting fallaciously.
in one of my case, the father did same as adviced by mr. aneesh and the Hon'ble High Court called him along with child and immediately handed over the custody of minor girl child of 5 years to her mother through writ of Habeas Corpus.
criminal case for abduction is also going on against the father.
Sincere advice not to take law in hand...
the order of the Hon'ble High Court is reproduced hereinbelow:
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- HABEAS CORPUS No. - 713 of 2009
Petitioner :- Baby Inaayat
Respondent :- Sri Ajay Kumar
Petitioner Counsel :- Alok Saxena
Respondent Counsel :- M.S. Khan
Hon'ble S.N.H. Zaidi,J.
Pursuant to the order dated 29.7.2010, the girl child Baby Inayat has been produced by her father, opposite party no. 1.
Heard learned counsel for the petitioner, opposite parties no. 1 to 4 and the learned A.G.A. for opposite parties no. 5 to 7 and perused the record.
This habeas corpus petition has been filed by Smt. Aarti alias Shahnaz Begam on behalf of her minor daughter Baby Inayat, aged about five years against her husband and his family members for her production and proper order.
The relevant facts, in short, are that Smt. Aarti alias Shahnaz Begam had married with opposite party no. 1 Ajay Kumar on 6.7.2003 according to Hindu rites and customs after she converted to Hinduism and a girl child (Baby Inayat) was born to her from the said wedlock on 15.3.2005. As serious differences arose between them and their relations came under strain, therefore, she started living alongwith her daughter with her parents at Lucknow since 31.8.2009. On 3.9.2009 she filed a suit for divorce under section 13 of the Hindu Marriage Act in the Court of Principal Judge/Family Court, Lucknow. On 18.9.2009 Baby Inayat was taken away from the custody of her mother by opposite parties no. 1 to 4 and despite there being a specific allegation of forcible taking away of the child in the report, it was registered under sections 498-A, 323, 504 I.P.C. and � D.P. Act at the concerned police station. Since then Baby Inayat is in the custody of opposite parties no. 1 to 4. Opposite party no. 1 also filed a divorce petition under section 13 of the Hindu Marriage Act before the District Judge, Sirsa in Haryana.
This Court, vide order dated 6.10.2009 passed in this petition, directed opposite parties no. 1 to 4 to produce the detenue before the Court, but she was not produced. On 15.12.2009 this Court ordered for handing over of Baby Inayat within seven days to her mother but the order was also not complied with. Opposite party no. 1 filed Special Leave Petition before the Supreme Court against the order dated 15.12.2009 of this Court, but the Special Leave Petition was withdrawn on 11.1.2010 after the petitioner, opposite party no. 1 herein, stated that the child shall be produced before the High Court on the date fixed in the case. Despite that, the child was not produced before this Court on 13.1.2010 and 19.1.2010 and when bailable warrant was ordered to be issued against opposite party no. 1, then on 27.1.2010, the detenue was produced before this Court.
Learned counsel for opposite parties no. 1 to 4 submitted that opposite party no. 1 is working with a Five Star Hotel in the United States and is getting handsome salary and the girl is being looked after very well at Sirsa by his mother, who is a Sub-Inspectoress in Haryana Police. He further submitted that the girl is studying in one of the best Schools of Sirsa, namely, St. Xavier Senior Secondary School, in UKG standard, whereas her mother has no source of income of her own and is entirely dependent upon her father, who is running a taxi in Lucknow. He also submitted that if the custody of the child is given to her mother, the studies of the girl would be very adversely affected and her career would be ruined . A fear has also been expressed that as the mother of the child has no permanent place of abode and is residing in a rented accommodation at Lucknow, there is every possibility that she may change the place and disappear with the child.
Smt. Aarti alias Shahnaz Begam is also present in the Court and on enquiry from the Court, states that she is permanently residing at the address shown in the petition with her father and undertakes that in case of change of address, she will intimate the opposite parties about her new address. She admits that at present she is dependent upon her father, who has a good taxi business in Lucknow. Learned counsel for the petitioner submitted that every effort shall be made to get the child admitted in some good school at Lucknow and looking to the standard of the class in which the child is presently studying, there is no possibility of any adverse effect or her career.
Hon'ble the Supreme Court in the case of Gaurav Nagpal vs. Sumedha Nagpal reported in AIR 2009 Supreme Court 557, has observed that the principles in relation to the custody of a minor child are well settled. 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. If the Court is confronted with conflicting demands made by parents each time, it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matter human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. The word 'welfare' used in section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed liberally 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 parents patriae jurisdiction arising in such cases.
In Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 Supreme Court 2262, the Apex Court observed in para 14 that ? "It is trite that while determining the question as to which parents the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (section 17) or the Hindu Minority and Guardianship Act, 1956 (section 13) also hold out the welfare of the child as predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate a vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly survive as binding precedents in so far as the factual aspect of the case are concerned.... Better financial resources of either of the parents or their love for the child may be one of the relevant considerations, but can not be the sole determining factor for the custody of the child..."
Considering the facts and circumstances of the present case in the light of the aforesaid observations of the Apex Court and upon hearing the counsel for the parties, I am of the view that the father of the child is undoubtedly more well off in terms of money than the mother and he can provide more physical comforts to the child in comparison to her but for determining the welfare of the child physical comfort and facilities can not be held to be the sole criterion. Her care, protection, education and well being are also to be taken care of. Since the father is working in the United States, therefore, she is not getting the necessary care and protection from her father. As the child is living at Sirsa with her grand mother, who is a police officer, she can also not look after her at all the time on account of her job requirements. A girl of a tender age of five years needs a constant and all time care and protection for her proper upbringing which the petitioner can provide well as presently she is not engaged in any profession and has full time to look after the child. As the father of the petitioner is said to be running a good taxi business, necessary financial support can be provided by him and the child may also be admitted in some good school at Lucknow. It is a common experience that no person, including the father, can look after the interest of a minor child better than the mother. The circumstance that the child is living with opposite parties no. 1 to 4 for the last about one year, looses significance as opposite party no. 1 appears to have flouted the Court's order and the assurance given before the Apex Court and managed to keep the custody of the child despite specific orders of this Court. He can not be a beneficiary of his own wrong. It is true that taking the child out of the custody of opposite parties may cause some problems, but that is bound to be neutralized.
In view of the aforesaid, I am of the view that the welfare of the child shall be better secured in the hands of her mother than to her father and thus the petitioner is entitled to have the custody of the child. Let the custody of Baby Inayat be handed over to her mother Aarti alias Shahnaz Begum, who shall not take the child out of Lucknow district without the permission of the Court and shall intimate opposite party no. 1 about her new address in case of change of her present address, but at the same time the father shall have visitation rights of the child.
It is, therefore, directed that the father of the child (opposite party no. 1) may visit the child twice in every month preferably on alternate Sunday or on a festival day after due intimation to the mother and the mother shall allow the child to visit the father from morning to evening.
With the above observation, the petition is finally disposed of.
Order Date :- 17.8.2010
Rizvi
