# Aditay Divedi & Kumari Chhabi Divedi v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 385
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-03
- **Case number:** Habeas Corpus Writ Petition No. 443 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditay-divedi-kumari-chhabi-divedi-v-state-of-u-p-ors-45586
- **Pages:** 5

## Headnote

Civil Law -Hindu Minority and Guardianship
Act (32 of 1956)- Section 13 - Guardians
and Wards Act (8 of 1890) , S.7 - Custody of
minor child - Habeas Corpus Petition -
Determination - Paramount consideration is
where the minor's welfare would be better
secured - In selecting a guardian, the court
is expected, to give due weight to a child's
ordinary
comfort,
contentment,
health,
education,
intellectual
development,
favourable surroundings, moral and ethical
values - If the minor is old enough to form
an intelligent preference, the court must
consider such preference as well - though
the final decision rest with court as to what
is conducive to the welfare of the minor -
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 (Para 8, 10 )

Custody of minor child - Petition by mother
for custody of her minor children from
father - Both natural Guardian - minors
staying with the father during all the time
the mother has been away - Both children
indicated their preference of not to staying
with
mother
and
expressed
definitive
preference to stay with father - Mother
granted visitation rights from morning till
evening twice a month. (Para 12,13,14)

Writ Petition allowed. (E-5)

List of Cases cited:-

## Text

12 All. Aditay Divedi & Kumar Chhabi Divedi Vs. State of U.P. & Ors.
385
the winter break for the Schools. Of course,
it will be open to the parties to adjust the
schedule of these meetings, but not so as to
infringe the condition of the meeting
between the grandparents and the minor
taking place twice for three days each in
one calendar year. This arrangement for the
mother
taking
the
minor
to
her
grandparents has been made bearing in
mind the grandparents' seniority and age.
----------
(2020)12ILR A385
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 443 of 2020

Aditay Divedi & Kumari Chhabi Divedi
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shravan Kumar Mishra

Counsel for the Respondents:
G.A., Sri Manoj Mishra

Civil Law -Hindu Minority and Guardianship
Act (32 of 1956)- Section 13 - Guardians
and Wards Act (8 of 1890) , S.7 - Custody of
minor child - Habeas Corpus Petition -
Determination - Paramount consideration is
where the minor's welfare would be better
secured - In selecting a guardian, the court
is expected, to give due weight to a child's
ordinary
comfort,
contentment,
health,
education,
intellectual
development,
favourable surroundings, moral and ethical
values - If the minor is old enough to form
an intelligent preference, the court must
consider such preference as well - though
the final decision rest with court as to what
is conducive to the welfare of the minor -
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 (Para 8, 10 )

Custody of minor child - Petition by mother
for custody of her minor children from
father - Both natural Guardian - minors
staying with the father during all the time
the mother has been away - Both children
indicated their preference of not to staying
with
mother
and
expressed
definitive
preference to stay with father - Mother
granted visitation rights from morning till
evening twice a month. (Para 12,13,14)

Writ Petition allowed. (E-5)

List of Cases cited:-

1. Githa Hariharan (Ms) & anr. Vs R.B.I. & anr
1999 (2) SCC 228

2. Nil Ratan Kundu & anr. Vs Abhijit Kundu
(2008) 9 SCC 413

3. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors. (2019) 7 SCC 42

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition for a writ of habeas
corpus has been instituted by Smt. Priti
Dwivedi with a prayer that Aditya Dwivedi
and Kumari Chhavi Dwivedi, her two minor
children be ordered to be produced on a rule
nisi from the custody of Dilip Dwivedi, the
minors' father and ordered to be set at liberty
in the manner that the custody of the two
minors be handed over to Priti Dwivedi, their
mother and natural guardian.

2. A rule nisi in the matter was issued
on 09.09.2020, ordering the two minors to
be produced on 16.09.2020. This Court
finding it to be a sensitive matter where the
two minors caught in a battle between their
parents, could be spared all that agony,
referred the parties to the Allahabad High
Court Mediation and Conciliation Center,
386 INDIAN LAW REPORTS ALLAHABAD SERIES
in order to attempt an amicable settlement.
That order was made on 18.09.2020. The
report of the mediation center dated
19.10.2020 shows that mediation sessions
were held on 21.09.2019, 09.10.2020,
12.10.2020, 14.10.2020 and 19.10.2020.
Unfortunately,
the
mediation
was
completed with a report of "no agreement".
This Court, accordingly, proceeded to hear
the matter on merits on 22.10.2020 and
judgment was reserved.

3. Parties have exchanged affidavits
where Dilip Dwivedi, the 4th respondent
has filed a counter affidavit and the
petitioner, a rejoinder.

4. On 22.10.2020, the minor detenues
Master Aditya Dwivedi and Kumari Chhavi
Dwivedi were both required to be present.
They were produced by their father, Dilip
Dwivedi. This Court interacted with the
minors in considerable detail. The outcome
of that enterprise would be alluded to later
in this judgment.

5. Heard Sri Shravan Kumar Mishra,
learned counsel for the petitioners, Sri
Manoj Mishra, learned counsel appearing
on behalf of respondent no. 4 and Sri
Indrajeet Singh Yadav, learned A.G.A.
appearing on behalf of the State.

6. Priti Dwivedi and Dilip Dwivedi
were married according to Hindu rites on
28.01.2012. A son named Aditya and a
daughter Chhavi were born of the wedlock
of parties. Aditya is now aged seven years
whereas Chhavi is aged about five years. It
is not in issue that parties have become an
estranged couple and live apart.

7. A reading of the pleadings of the
parties here and the documents annexed
show that the husband and wife are in the
thick of a matrimonial discord. There is
also litigation pending between them, with
the wife having filed for restitution of
conjugal rights under Section 9 Hindu
Marriage Act and for Maintenance under
Section 125 Cr.P.C.

8. A reading of the counter affidavit
shows that the husband has come up with very
serious allegations questioning his wife's
fidelity. He has also attempted to annex some
documentary proof about all that. This Court is
not inclined to look into those allegations or
the material in support. It is not our business at
all in the present proceedings to go into those
murky allegations. Both the children are
young, and, normally for children that age, the
mother is always regarded better equipped to
secure their welfare. It is not so much about
the right of the guardian to the minors' custody
as it is about the minors' welfare. It is beyond
cavil by now that welfare of the minor is of
paramount importance. The father and the
mother are both natural guardian under
Section 6 (a) of the Hindu Minority and
Guardianship Act. The mother's right as a
natural guardian under Section 6(a) of the
Hindu Minority and Guardianship Act stands
at par with the father, once the father is absent
from the minors' care, in view of the decision
of the Supreme Court in Githa Hariharan
(Ms) and another vs. Reserve Bank of India
and another, 1999 (2) SCC 228. It would,
thus, always be central to a decision about the
minor's custody between the two guardians,
both of whom are natural, as to where the
minor's welfare would be better secured. This
principle has been endorsed by their Lordships
of the Supreme Court in Nil Ratan Kundu
and another vs. Abhijit Kundu, 2008 (9)
SCC 413. It is held in Neel Ratan Kundu
(supra):

52.In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
12 All. Aditay Divedi & Kumar Chhabi Divedi Vs. State of U.P. & Ors.
387
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
exercisingparens patriaejurisdiction and is
expected,naybound, 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.

9. The principles on which the
welfare of the minor is to be tested are
encapsulated in the remarks of their
Lordships in Nil Ratan Kundu (supra)
above extracted.

10. It is also a settled principle that
welfare of a child has parameters on which
it may be determined, but in a given case,
what conclusions may be drawn by the
Court, are not founded on any kind of a
stereotyped approach. It has to be the
outcome of a keen assessment about the
circumstances obtaining in the case. In this
connection, reference may be made to the
observations of the Supreme Court in
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others, 2019
(7) SCC 42, where in the context of facts
there, the principle was stated thus:

35. 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.
 (Emphasis by Court)

11. It is, thus, evident that while
parameters on which the welfare of a child
can be determined are enumerated by high
authority and also spelt out by statutes such
as Section 17(2) of the Guardians and
Wards Act, every case has its individual
features to be carefully analyzed in the
application of these principles. It must also
be emphasized that guardianship and the
right
to
custody
may
be
different.
Normally, the two coalesce but where
aberrations such as a fission of the nuclear
family takes place, notwithstanding the
natural guardianship being with one or the
other or both the parents, custody becomes
a more important issue. Who should have
388 INDIAN LAW REPORTS ALLAHABAD SERIES
custody or the dominant part of custody
with visitation rights to the other, is also to
be determined on the same principles of
welfare as apply to the case of appointment
or declaration of a guardian under Section
17 of the Guardians and Wards Act.

12. In the present case, what this
Court finds is that the minors are staying
with the father during all the time that the
mother has been away. Aditya Dwivedi has
informed the Court that he reads at the
Ansy Convent School, relating to which
there are documents also on record brought
in through the counter affidavit. Chhavi
Dwivedi also reads in the said school.
Aditya has shared with the Court the fact
the he has his grandmother (father's
mother), aunt (Bua), his father and sister,
all of whom stay together at the father's
place. He has
clearly indicated his
preference not to stay with his mother. He
said that she beats him. On the Court
inquiring further into the matter, pointing
out to the child who is quite intelligent that
mothers do have to chastise children, he
said that she hits him and his sister for no
cause.
He
expressed
his
definitive
preference to stay with his father. Aditya is
about seven years old and a fairly
intelligent child. The preference that he has
expressed about the guardian in whose
custody he would wish to stay cannot be
ignored altogether. The Court has also
spoken to the other minor Kumari Chhavi.
She is a younger child but fairly intelligent.
She is aged about five years. She also
spoke in the same vein, indicating a
definite preference to stay with her father.
She indicated that she is happy in the
family comprising her father, brother,
grandmother
and
her
aunt
(Bua).
Surprisingly,
she
also
indicated
her
disinclination to stay with her mother. The
two children appear to be very comfortably
settled in their father's home where they
have a grandmother and also an aunt. Also,
the evidence in whatever form it has come
shows that the children are being looked
after well in all the various facets of a
healthy development - physical, mental,
moral and comfortwise.

13. It is also clear that the education
and moral training is fairly well taken care
of. They are psychologically also in the
secure atmosphere of a family. No doubt,
the mother is not there but in the Court's
opinion the balance to judge the children's
welfare would tilt in favour of the father's
family, given the totality of circumstances
and also the minors' choice very eloquently
expressed by the elder child, Aditya.

14. Smt. Priti Dwivedi, who is the
minor's mother, cannot be altogether
deprived of their company and the
minors' her care and affection. In the
opinion of this Court, Smt. Priti Dwivedi
would
have
visitation
rights
from
morning till evening twice a month. She
would be entitled to visit the children at
her husband's place from 9 o'clock in the
morning to 5 o'clock in the evening on
the first and the second Sunday of the
month. This schedule can be adjusted by
the
parties
according
to
their
convenience, but not so as to reduce the
visitation hours and the number of days
that the mother is entitled to in a month.

15. It is ordered that the husband,
Dilip Dwivedi and all his family members
shall extend due courtesy to Smt. Priti
Dwivedi when she visits the children and
shall facilitate the children in meeting her.

16. This petition is disposed of in
terms of the aforesaid orders.
----------
12 All. Javed Siddiqui Vs. Suptt. Dist. Jail, Jaunpur & Ors.
389
(2020)12ILR A389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 458 of 2020

Javed Siddiqui ...Petitioner (In Jail)
Versus
Suptt. Dist. Jail, Jaunpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Daya Shankar Mishra

Counsel for the Respondents:
A.G.A., Sri Prem Shanker Prasad, Sri
Santosh Kumar Singh

A. Civil Law - Habeas Corpus Writ Petition -
National Security Act: Section 3(2), 3(4), 3(5),
8, 10, 12, 14; Prevention of Damage to Public
Property Act: Section 3; Epidemic Disease Act:
Section 3; Disaster Management Act: Section
51; U.P. Gangster Act: Section 3(1).

Opportunity of hearing before the Advisory
Board through legal representative - Article
22 of the Constitution of India does not
provide any right in favour of detenue to be
representaed through a legal practitioner.
Section 11(4) of NSA clearly incorporates
that the detenue is not entitled to be
represented through a legal practitioner or
advocate before Advisory Board - In this
petition, it has been neither alleged nor shown by
the petitioner that, at any stage, the State was
assisted by any legal practitioner or advocate before
the Advisory Board, therefore the petitioner is not
entitled to be represented through legal practitioner
or advocate. (Para 33, 35, 38)

B. Preventive detention of a person is
possible for 'preventing him from acting in
any manner prejudicial to the security of
the State or from acting in any manner
prejudicial to the maintenance of public
order....' - The grounds of detention disclose
not only "law and order" problem, but also the
problem of "public order" which is likely to be
caused by the activities of the petitioner. It is
trite to mention here that preventive detention
is a device to offer protection to the society and
the executive can always take recourse to it
where it is satisfied that no other method would
succeed in preventing a person from disturbing
the "public order" situation. The subjective
satisfaction of the detaining authority with
regard to the action of preventive detention has
to be taken keeping in mind the danger to
liberties of the people and if the actions or the
activities
of
the
person
have
serious
repercussions not merely on "law and order" but
on "public order", the satisfaction so recorded
cannot be lightly interfered by the Court of Law
unless it is arbitrary or unreasonable.

In the case at hand, the grounds of detention
elaborately narrate the facts leading to the
order of detention and the grounds are precise,
pertinent, proximate and relevant for recording
subjective satisfaction and thus, it cannot be
said that the detaining authority has not applied
its judicious mind in coming to the conclusion
that the activities of the petitioner are
prejudicial in nature to the maintenance of
"public order". (Para 32, 39, 40, 44)

To invoke the provision of Section 3(2) of
NSA,
the
satisfaction
of
the
State
Government so to prevent a person from
acting in a manner prejudicial to the
maintenance of "public order" are two
essential conditions.

C. Distinction between the two concepts
of "public order" and "law and order" - In
the case of "law and order", it affects specific
individuals only, while in the case of "public
order", it has the potentiality of disturbing the
normal tempo of the life of the community. The
true distinction between the areas of 'public
order' and 'law and order' lies not in the nature
or quality of the act, but in the degree and
extent of its reach upon society. The distinction
between the two concepts of 'law and order'
and 'public order' is a fine one but this does not
mean that there can be no overlapping. Acts