# Km. Advika Tandon v. State of U.P. & Ors

- **Citation:** (2021) 4 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-23
- **Case number:** Habeas Corpus No. 13183 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-advika-tandon-v-state-of-u-p-ors-47034
- **Pages:** 15

## Headnote

A. Constitution of India, 1950-Article
226-Seek direction or order in nature of
Habeas Corpus-petitioner and his wife
admittedly are living separately and
their minor daughter is in the custody of
her mother and grandparents-the rule
nisi is made absolute -the child is more
than 9 years old-the mother becomes
entitled to the custody of child as of
right
because
mother
who
is
not
incapacitated
in
any
manner
and
gainfully employed, being well qualified,
she establishes a prima facie case -
father has not been consistent with his
stand and he changed his stand after
broadly agreeing before court-however
father would be entitled for visitation
right.(Para 21 to 45)

B. The HMG Act postulates that the
custody of an infant or a tender aged
child should be given to his/her mother
unless
the
father
discloses
cogent
reasons
that
are
indicative
of
and
presage the likelihood of the welfare and
interest of the child being undermined or
jeopardised if the custody is retained by
the mother. Section 6(a) of the HMG Act,
therefore, preserves the right of the
father to be guardian of the property of
the minor child but not the guardian of
his person whilst the child is less than
five years old. It carves out the exception
of interim custody, in contradistinction of
gurardianship, and then specifies that the
custody should be given to the mother so
long as the child below fiver years in age.
we must immediately clarify that this
section or for that matter any other
provision including those contained in
the Guardians and Wards,Act, does not
disqualify the mother to custody of the
child even after the latter's crossing the
age of five years.(Para 40)

The petition is disposed off. (E-5)

List of Cases cited:-
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
87

## Text

_Characters 0–39,900 of 49,515. This is a partial read: ask again with offset=39900 for what follows._

86 INDIAN LAW REPORTS ALLAHABAD SERIES
directed that on deposit of the amount, the
Tribunal shall disburse the entire amount
by way of account payee cheque or by way
of RTGS to the account of the appellants
within 12 weeks from the date the amounts
are deposited by the respondents.

62. Fresh Award be drawn accordingly
in the above petition by the tribunal as per the
modification made herein. The Tribunals in
the State shall follow the direction of this
Court as herein afore mentioned as far as
disbursement is concerned, it should look into
the condition of the litigant and the pendency
of the matter and not blindly apply the
judgment of A.V. Padma (supra). The same
is to be applied looking to the facts of each
case. A copy of this Judgment be circulated
by the learned Registrar General to the Motor
Accident Claims Tribunals in the State of
Uttar Pradesh for guidance after seeking
approval of the Hon'ble the Chief Justice.

63. The record and proceeding be sent
back to the Tribunal.

64. We are thankful to both the
learned advocates for assisting us.
----------
(2021)04ILR A86
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.03.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Habeas Corpus No. 13183 of 2020

Km. Advika Tandon ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Tilhari, Kapil Misra, Pushpila Bisht

Counsel for the Respondents:
G.A., Nishant Shukla

A. Constitution of India, 1950-Article
226-Seek direction or order in nature of
Habeas Corpus-petitioner and his wife
admittedly are living separately and
their minor daughter is in the custody of
her mother and grandparents-the rule
nisi is made absolute -the child is more
than 9 years old-the mother becomes
entitled to the custody of child as of
right
because
mother
who
is
not
incapacitated
in
any
manner
and
gainfully employed, being well qualified,
she establishes a prima facie case -
father has not been consistent with his
stand and he changed his stand after
broadly agreeing before court-however
father would be entitled for visitation
right.(Para 21 to 45)

B. The HMG Act postulates that the
custody of an infant or a tender aged
child should be given to his/her mother
unless
the
father
discloses
cogent
reasons
that
are
indicative
of
and
presage the likelihood of the welfare and
interest of the child being undermined or
jeopardised if the custody is retained by
the mother. Section 6(a) of the HMG Act,
therefore, preserves the right of the
father to be guardian of the property of
the minor child but not the guardian of
his person whilst the child is less than
five years old. It carves out the exception
of interim custody, in contradistinction of
gurardianship, and then specifies that the
custody should be given to the mother so
long as the child below fiver years in age.
we must immediately clarify that this
section or for that matter any other
provision including those contained in
the Guardians and Wards,Act, does not
disqualify the mother to custody of the
child even after the latter's crossing the
age of five years.(Para 40)

The petition is disposed off. (E-5)

List of Cases cited:-
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
87
1. Elizabeth Dinshaw Vs Arvand M. Dinshaw,
(1987) 1 SCC 42

2. Lahari Sakhamuri Vs Subhan Kodali ( 2019) 7
SCC 311

3. Nithya Anand Raghavan Vs St. (NCT of
Delhi),(2017) 8 SCC 454

4. Kanika Goel Vs St. (NCT of Delhi), (2018) 9
SCC 578,

5. Yashita Sahu Vs St. of Raj. (2013) SCC 67

6. Nilanjan Bhattacharya Vs St. of Karn., Civil
Appeal No. 3284 of 2020

7. Roxann Sharma Vs Arun Sharma, (2015) 8
SCC 318

(Delivered by Hon'ble Dinesh Kumar Singh, J.)

(i). Significance of Marriage as
Social Institution:-

1. Marriage is an institution that
admits man and woman to family life. It is
a stable relationship in which a man and a
woman are socially permitted to live
together without losing their status in the
community.
Marriage
is
not
merely
concerned with the couple; rather it affects
the whole society and future generations.
The responsibilities it entrusts a couple
with are thus both heavy and delicate. In
Hindu view, marriage is not a concession to
human weakness, but a means for spiritual
growth. Man and woman are soul mates
who, through the institution of marriage,
can direct the energy associated with their
individual instincts and passion into the
progress of their souls. The institution of
marriage is the central draft of all the forms
of human society which are a part of
civilization. Marriage is the deepest as well
as the most complex of all human relations
because it is a difficult task for two people to
lead their life together when they have their
independent thinking and way of living. In
Indian life, role expectations are highly specific
and institutional in marriage, thus a woman's
role in family has remained multifarious.
Marriage and family, as a set of institutions,
also encompass formal and informal, objective
and subjective aspects. Family is a fundamental
building block of all human civilization.
Marriage is the glue that holds it together. The
health of culture, its citizens and their children is
ultimately linked to the success of marriage.

2. Strong stable marriages are the best way
to ensure that children become responsible
members of society. Marriage improves the
health and longevity of men and women; gives
them access to more active and satisfactory
married life, increases wealth and assets, boosts
children's chances of success and enhances men's
performance at work and their earning. When
one gets rid of the institution altogether there are
many harmful consequences. It is not just the
marrying of two people together, but its success
or failure equally affects society. When a family
falls apart, it leaves a negative impact on the
community because the children of such a family
are more likely to be delinquents. On the
contrary when a family is strong, the community
is positively affected. Every child that goes out
into the world from a stable happy home is a
blessing to the community, and is able to make a
contribution, rather than being a drain on the
community.

3. Creation of male and female is not an
accidental fact or afterthought but the very apex
of God's creative activity. Even more it is the
sexual pairing of male and female activity that is
the pinnacle of the creative process. To deny the
distinction of two sexes is to deny what is
integral to God's ultimate creative act.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The inherent characteristics of
marriage are intimacy, companionship,
procreation and parenting. Marriage is not
simply a celebration or expression of love.
It is the world's most basic and universal
institution - the foundation on which
families are created and society reproduces
itself. Society suffers when procreation and
parenting is separated from the definition
of marriage. Marriage is the most diverse
relationship known to humanity because it
unites the two halves of humanity - male
and female. It is not a civil right; it is an
institution given specific cultural and legal
recognition because of the unique benefits
it confers on adults, children and society at
large.

5. Islam considers marriage as both a
physical and spiritual bond that endures
into
the
afterlife,
also
recommends
marriage high among other things, it helps
in the pursuit of spiritual perfection. The
Bahai Faith sees marriage as, a foundation
of the structure of society.

6. Buddhism does not encourage or
discourage marriage, although it does teach
how one might live a happily married life.

7. Hinduism sees marriage as a sacred
duty that entails both religious and social
obligations.
Old
Hindu
literature
in
Sanskrit gives many different types of
marriages and their categorization ranging
from
Gandharva
Vivaha
to
normal
marriages, to Rakshasa Vivaha.

Marriage was well established in the
Vedic age. The history of ancient India
may be said to commence with the period
during which the Rig Veda was composed.
Vedic literature is the prime source of all
cultural manifestations in India. Marriage
was considered as a social and religious
institution
and
a
necessity
for
two
individuals of opposite sex who had
attained full physical development. Woman
as a wife is denoted by the words Jaya,
Jani, Patni. Jaya: shares the husband's
affection, Jani: the mother of the children,
Patni: the partner in the observance and
performance of religious sacrifices. It is
said that man is only one half and he is not
complete till he is united with a wife.
Hindu mythology has the concept of
Ardhnarishwara (half female and half male
combination to make the perfect whole).

8. A woman's existence merged with
that of a man through the performance of a
ceremony and hence it was imperative for
the couple to carry out their promises made
before supreme witness: Agni. In the
Brahadaranyaka Upanishad, the ideal
picture of a wife and the other half of the
husband have been beautifully delineated
by a very telling simile of the half of a
shell.

9. In Hindu society marriage is
supposed to be a social obligation, for it is
believed t hat marriage is not only a means
of continuing the family but also a way of
repaying one's debt to the ancestors. It is a
life-long commitment of wife and husband
and is the strongest social bond that takes
place between a man and a woman. The
norms set up for regulating the marital
behavior in Hindu society is closely
connected with religious duties and hence
the impact of religious duties has more
effect than any other element. Grahastha
Ashram, the second of the four stages of
life, begins when a man and a woman
marry and start a house hold.

10. The family disintegrates when the
marital relations break, as in the case of
divorce.
Historically
it
has
been
transformed from a more or less self-
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
89
contained unit into a definite and limited
organization of minimum size, consisting
primarily of the original contracting parties.
It is a unit of society, society to state and
state to nation.

11. A person is socialized in the
family. The child's first school is his home
and family, which conditions his attitude
and behavior towards the elders in society,
and which imparts practical education to
the child concerning the customs in society,
conduct, and other important elements of
culture, preservation of health, love,
sympathy, and cooperation. It is in the
family that the child acquires important
qualities as sincerity, sympathy, selfsubmission, responsibility and character
which help the child in becoming an
important and responsible member of
society. In the family the child gets full
freedom of expressing his ideas and views.
Psychologists have incontestably proved
that the proper development of child is
impossible without a good environment in
the family.

12. Marriage is a legally, socially, and
religiously
recognized
interpersonal
relationship, usually intimate and sexual,
and
often
created
as
a
contract.
Controversies apart, marriages are still
made in heaven for the average Hindu
couple. It is a lifelong commitment and is
the strongest social bond between a man
and
a
woman.
The
human
society
developed and redefined the institution of
marriage over a long period of time. The
human instinct such as love, affection, joy,
jealousy, hate, fear, and pride has not
changed over millenniums. People still
need stable family environment and friends
to share life experiences. No doubt with the
changing circumstances, the significance of
marriage is decreasing. It is considered as
something secondary, not necessary. To
make a family now the new generation is
adopting children from orphanages but, the
fact is that for giving the child love,
affection, attachment, warmth of relations a
family is required.

13. Previously, a family crisis of the
nature of a maladjustment between husband
and wife was overcome by the constraining
influence of the elders, kinsmen and social
mores and traditions and the family was
saved from disintegration but, with the
existing loss of respect for the power of
these modes of social control husband and
wife are deprived of guide or mediator and
in a fit of temper or even vengeance they
destroy delicately loving nurtured sapling
which is the family.

14. In the modern time, the institution
of family is undergoing rapid changes due
to which the structure of the family is
changing. The tie of marriage is the basis of
the family. Weakening of marriage ties
results in weakening of family ties. Now-adays marriage is not a religious ritual but
merely a social contract which can easily
be broken on the grounds of boredom, or
some
kind
of
misunderstanding.
Consequently, there are an increasing
number of divorces. A major cause of the
weakening of marriage ties is the failure of
men to adapt to new circumstances created
by the education of women.

(ii).
Impact
of
Family
Breakdown on Children's Well-Being

15. Sociological researches have
shown that a child grows up in an intact,
two-parent family with both biological
parents present do better on a wide range of
90 INDIAN LAW REPORTS ALLAHABAD SERIES
outcomes than children who grow up in a
single-parent family. Single parenthood is
not the only, nor even the most important,
cause of the higher rates of school dropout,
teenage pregnancy, juvenile delinquency,
or other negative outcomes we see; but it
does contribute independently to these
problems. Neither does single parenthood
guarantee that children will not succeed;
many, if not most, children who grow up in
a single-parent household do succeed.

16. Empirical studies show that
divorce has been shown to diminish a
child's future competence in all areas of
life,
including
family
relationships,
education, emotional well-being, and future
earning power. Children are at increased
risk of adverse outcomes following family
breakdown and that negative outcomes can
persist into adulthood.

17. Evidence also show that relatively
few children and adolescents experience
enduring problems, and some children can
actually benefit when it brings to an end a
''harmful' family situation, for example
where there are high levels of parental
conflict, including violence. Long-term
effects in adults, who as children have
experienced family breakdown, include
problems with mental health and wellbeing, alcohol use, lower educational
attainment and problems with relationships.

(iii).
Psychological
and
Emotional Aspects of Divorce

18. A child's continued involvement
with both of his or her parents allows for
realistic
and
better
balanced
future
relationships. Children learn how to be in
relationship by their relationship with their
parents. If they are secure in their
relationship with their parents, chances are
they will adapt well to various time-sharing
schedules and experience security and
fulfillment in their intimate relationships in
adulthood. One important factor which
contributes to the quality and quantity of
the involvement of a father in a child's life
is mother's attitude toward the child's
relationship with father. When fathers leave
the marriage and withdraw from their
parenting role as well, they report conflicts
with the mother as the major reason.

19. The impact of father or mother
loss is not likely to be diminished by the
introduction of step-parents. No one can
replace Mom or Dad who bring the child in
this world. And, no one can take away the
pain that a child feels when a parent
decides to withdraw from his/her life.

(iv) Facts of this case :-

20. This petition under Article
226/227 of the Constitution of India has
been filed with following reliefs:-

"(i) Issue a writ, direction, or order
in the nature of Habeas Corpus to produce the
detenue before the Hon'ble Court by the
Respondents along with full disclosure of
reports of all Corona-Tests conducted on the
detenue and all Respondents in her close
proximity after the Corona-death on 6-Jul2020 fol lowing multiple positive cases in
Respondent No.4's family.

(ii) Issue a writ, direction or order
in the nature of Habeas Corpus to the
Respondents (Opposite Parties) to set the
detenue at liberty forthwith and to not
interfere with the personal liberty of the
detenue/petitioner.

(iii) It is further prayed, Hon'ble
Court may kindly be pleased to seek
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
91
testimony of the petitioner in a free and fair
environment to corroborate her true wishes,
and issue direction to the Respondents to
immediately hand over interim custody of
minor daughter Advika to her father so that
she may continue her quality education at
Pune while availing the safety, comforts
and
intellectually
stimulating
growth
environment of her Pune home,

(iv) It is further prayed, the
Hon'ble Court may kindly be pleased to
issue direction to the Respondent no. 4 to
co operate wholeheartedly with petitioner's
father to permit and fa cilitate petitioner's
education at her renowned Pune school
with immediate effect.

(v) It is further prayed, the
Hon'ble Court may kindly be please to
issue direction to the Respondent nos. 4, 5,
6, 7 & 8 to not change or attempt to change
the physical location and/ or school of the
petitioner without the prior knowledge and
writ ten consent of her father at any time
till she turns 18 years old.

(vi) It is further prayed, Hon'ble
Court may kindly be pleased to issue
direction to the respondents no. 4, 5, 6, 7
and 8 to immediately cooperate and allow
un-constrained, exclusive physical and
telephonic access at-will between the
petitioner and petitioner's father with prior
written intimation to Respondent No. 4 as
per below:

a)
For
physical
access:
A
minimum 2-day prior written intimation on
email and whatsapp of Respondent No. 4

b) For telephonic access: A
minimum 6-hour prior writ ten intimation
via email / whatsapp to Respondent No. 4

(vii) It is further prayed, the
Hon'ble Court may kindly be pleased to
issue direction to the Respondent no. 4 to
allow and let the minor daughter spend
100% of her school's winter vacation, at
least 60% of her school's summer vacation
and at least 50% of all long-weekends in a
calendar year exclusively with petitioner's
father. If the petitioner and Respondent No.
4 are mutually willing to spend the balance
remaining
vacation
time
exclusively
together, then Respondent No. 4 must:-

a) Bear the entire boarding,
lodging and travel expenses of the
petitioner in the event of availing such
balance vacation time exclusively and

b) Arrange and comply with the
pick-up / drop-off of the petitioner from the
society gate of the petitioner's father's
residence on such occasions and

c) Permit at least 15 minutes
telephonic conversation daily between the
petitioner and petitioner's father to enquire
and validate the petitioner's well-being
while the petitioner is with Respondent
No.4.

(viii) It is further prayed, the
Hon'ble Court may kindly be please to
issue direction to the Respondent no. 4 that
all times while the petitioner is in the
exclusive company of Respondent no. 4
(i.e. at times when the petitioner's father is
not physically present simultaneously with
the petitioner), in the event of either any
out-station travel by Respondent No. 4 or
any
other
similar
unavailability
that
compromises Respondent No. 4's personal
care
and
supervision
of
petitioner,
Respondent No. 4 should arrange and
ensure in advance, completely at her own
92 INDIAN LAW REPORTS ALLAHABAD SERIES
expense, effort and planning, for the
petitioner (minor daughter) to be in the
custody and care of petitioner's father
(Amit
Tandon)
for
the
duration
of
Respondent No. 4's such outage or
unavailability i.e. to mean that Respondent
No. 4 should not entrust the petitioner's
care with any other person besides the
petitioner's father in the event of her own
absence while enjoying her exclusive
company.

(ix) It is further prayed, the Hon'ble
Court may kindly be please to issue direction
to the Respondent no. 4 to immediately
handover all the originals of petitioner's
personal/KYC records (Passport, Aadhaar,
Birth Certificate etc), school records/results
and other personal belongings of the
petitioner to the petitioner's father."

21. The facts of the present case are that
from the wedlock of Amit Tandon, father of
the petitioner, and Ms. Parul Tandon (the date
of marriage 27.11.2004), the detenue was
born on 13.08.2011. At present she is more
than nine years of age. The present habeas
corpus petition has been filed through father
Amit Tandon with prayer to produce the
corpus/detenue Km. Advika Tandon, who is
allegedly in illegal custody of her mother,
maternal
grand-father,
maternal
grandmother, maternal uncle/mama and maternal
aunt/masi. The father, Amit Tandon is an
entrepreneur, but before that he was pursuing
career in Information Technology from 1998
to 2009. It is alleged that on 26.08.2019 the
mother of the detenue picked her directly
from the school, St. Mary School, Pune and
brought her to Lucknow by flight. She
dropped message to Amit Tandon "boarded
for Lucknow with Advika".

22. It is alleged that the respondent
no.4 is not fit to have the custody of the
detenue as she suffers from Poly Cystic
Ovary Syndrome (PCOS). This ailment
leads to low energy levels, frequent fatigue
and mood swings which are not conducive
to child attention and growth whereas the
father, Amit Tandon is quite fit and has no
ongoing health ailments/medication. It is
also stated that the detenue shares an
extremely close bond with her father and
grand mother who have been playing
pivotal, predominant and significant role in
her grooming, nurturing since childhood,
whereas the respondent no.4, the mother,
has been focusing primarily on promoting
her career. It has been further stated in the
writ petition that the detenue has better
place in Pune living with her father and
grand-mother. She has an independent
room in her home in Pune, which situates at
prime location along with all paraphernalia.
St. Mary's School, Pune where the detenue
was studying in Class-III is an eminent
school, 155 years old, and top ranked
Institution in the country. It has further
been stated that the respondent no.4 made
frequent extended professional trips while
leaving the detenue behind in a fragile state
without proper schooling. Schools in
Lucknow are not match to St. Mary School,
Pune and now detenue is studying in Seth
M.R. Jaipuria School. It has further been
stated that the detenue's well being and
safety
are
likely
to
be
severely
compromised in Lucknow whereas in Pune
24x7 strongly guarded CCTV cameras,
gated society of 72 flats, protected park and
game playing area at his residence which is
in prime location of Kalyani Nagar, Pune
whereas the respondent no.4 is living with
the
detenue
at
an
relatively
under
developed and unsafe area at the outskirts
of Lucknow. It is further stated that
maternal grand father/Nana and maternal
uncle/Mama have severe drinking problem
which has led to the separate living of wife
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
93
of respondent no.7 along with their 3 years
old son since March 2019. It has been
further stated that a mysterious death of
another sister of respondent no.4 took place
at the tender age of 18 years in the same
household. Another sister of respondent
no.4, i.e. respondent no.8 is employed in
Mumbai and she is unmarried and aged
about 38 years.

23.

Respondent
no.4
suddenly
departed from matrimonial home on
26.08.2019
primarily
on
account
of
differences that the father of detenue, Amit
Tandon, over letting his 71 years old
mother move to stay with him permanently.
The permanent home of the family of Amit
Tandon is in Varanasi and it was acquired
in December 2018 due to acquisition of
Kashi Vishwanath Mandir Corridor and,
then the mother of Amit Tandon moved
with him to Pune. Respondent no.4 was
unhappy by the mother of Amit Tandon
moving and living permanently with them
and she threatened to go back to Lucknow
and live with her parents along with
daughter, if the mother would continue to
live in the house. It is further stated that
after respondent no.4 departed with detenue
from Pune to Lucknow, the father Amit
Tandon, made frequent trips to Lucknow to
reason her to be back in the matrimonial
home, but despite his sincere efforts to
reconcile the matter during these visits, the
respondent no.4 was rigid on her instance
that only if the petitioner either arrange for
a separate residence of his mother in Pune
or send her away only then the respondent
no.4 and detenue would return to Pune. It
is, therefore, submitted that considering the
infrastructure, the house hold comfort,
environment and schooling as well as
petitioner's
being
fit
physically
and
mentally,
Lucknow
would
not
be
conducive place for the detenue to live
in; Pune as better fitted for her, therefore,
the detenue should be released from the
custody of respondent no.4 to go with her
father.

24. On the other hand, respondent no.4,
the mother of detnue, has submitted that there
is a matrimonial dispute between the parties
and, the detenue is living with her mother
who has been forced to live with her parents.
Due to the conduct of the father of detenue,
the detenue is residing with her mother and
maternal parents' house and the same cannot
be termed as illegal by any stretch of
imagination. It has further been stated that the
writ petition is not maintainable and is liable
to be dismissed on the ground on nonmaintainability. It is further submitted that
father of detenue has an efficacious remedy
to file a petition before the appropriate court
for redressal of his grievance, if any. It has
further been stated that the mother had
compromised with her career and left job as a
dutiful wife and mother of the detenue. It has
been stated that the ruses in ovaries
developed during the course of married life of
respondent no.4. The father of detenue has
treated her with grave cruelty and never
bother to take care of her. He has always been
sarcastic, inconsiderate towards her. It has
further been stated that the father of detenue
has forced the respondent no.4 to part with
her savings from salary income on the pretest
of running household. The respondent no.4
used to transfer the money in the account of
father of detenue pro-actively and she had
spent around Rs.1 crore from her salary.

25. It has further been stated that she
has decent medical condition, enjoying
good health, whereas the father of the
detenue has extreme anger issues, severe
allergies and chronic OCD problem. He has
94 INDIAN LAW REPORTS ALLAHABAD SERIES
unhealthy relation with almost every family
member and is incapable of contributing to a
young girl's growth and development. The
mother of the father can barely fetch for
herself. It has further been submitted that it
would not be in the paramount interest of the
detenue to live with such a family. It has also
been submitted that behaviour of the
petitioner has been in fact causing a lot of
mental trauma and unnecessarily mental and
emotional pressure on the detenue at her
tender age. He has created such conditions
that it became impossible for respondent no.4
or the detenue to live with him any longer.

26. It has been stated that the detenue
was initially admitted in Seth MR Jaipuria
School, Lucknow in Class-III, however,
due to threats advanced by the father, the
said Institution has shown its inability to
continue the detenue to study in the
Institution. Therefore, she was admitted in
Modern Vidyawati School which is also a
very reputed Institution in Lucknow. It has
been further submitted that efforts are
being made for the detenue to get her
admission in La Martiniere College or
Loreto Girls School and in all likelihood
she would get admission in some reputed
school. It has further been submitted that
the detenue being female child and, no
female family member is available in the
family of father of detenue, it is not in the
interest of the child to be left in the custody
of the father.

(v) Analysis :-

27. While deciding the dispute of
such a nature, the Court has to see the
paramount interest of the child.

28. I have heard learned counsel for
the parties and perused the pleadings and
record of the petition.

29. This Court vide order dated
29.01.2020 directed the father of the
detenue, respondent no.4 and detenue to be
present in Court on 24.02.2021.

30. On 24.02.2021, the Court
interacted with the father and mother of
detenue separately and in their absence
with the detenue. After understanding the
respective stands and keeping in view the
welfare of the child, the Court was of the
view that the custody of the detenue cannot
be given to the father at this stage. The
Court while referring the matter to the
Mediation Centre had passed the following
order :-

"1. In pursuance of the order
dated 29.01.2021, father of the detenue,
Mr. Amit Tandon, detenue, Km. Advika
Tandon and Ms. Parul Tandon, wife of Mr.
Amit Tandon are present in the Court.

2. The court has spoken to Mr.
Amit Tandon and Ms. Parul Tandon and
Km. Advika Tandon, in absence of her
parents.

3. The Court is of the view that at
this stage, custody of Ms. Advika Tandon
cannot be given to the father. It also
appears that she is happily living with her
mother in Lucknow but she would also like
to have love and affection of her father.
Km. Advika Tandon has informed the Court
that she speaks with her father over phone
and twice a week on Skype.

4. Ms.Parul Tandon further states
that the father of the child can visit her at
any time with prior notice and he can make
telephone call to her for short duration
anyday. She will never object regarding
visiting the father to meet the child or
having conversation over telephone or
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
95
Skype as the case may be. It is also broadly
agreed that the child would like to visit her
father during long vacations and stay with
her grand mother. But, permanently at this
stage, she would like to live with her
mother.

5.
Keeping broad
consensus
between the parties, in order to formalize
the terms of settlement between the parties
with respect to custody and visitation in
respect of Km. Advika Tandon, it would be
appropriate to refer this matter before
Mediation and Conciliation Centre of this
Court.

6. Both the parties have agreed to
be present before the Mediation and
Conciliation Centre of this Court on
25.02.2021 at 2:30 P.M. Ms. Parul Tandon
is directed to bring Km. Advika Tandon
before the Mediation Centre.

7. Learned mediator is requested
to make his/her all out efforts to get the
matter settled between the parties and
reduce the terms of settlement in writing
and place it before the Court for passing
appropriate order.

8. List this case on 04.03.2021
along with report of Mediation Centre.

9. Today and tomorrow, the
father can take the child to treat her
anywhere of her choice."

31.

However,
the
mediation
proceedings failed and the case came to be
listed before this Court again. The Court
again tried to settle the matter between the
parties amicably keeping in view the
paramount interest of the child. However,
the Court could not succeed in settling the
matter amicably between the parties and,
therefore, it proceeded to hear the parties so
that the petition can be disposed off. It
appears from the respective stands of the
parties that the marriage between them has
been irretrievably broken down. More than
anybody else it is the detenue who is
suffering at this stage. She is suffering from
mental and emotional trauma and is in a
state of confusion because of quarreling of
her parents over her custody. In matter like
this the Court has to keep in mind the
paramount interest of the child while
deciding the question of custody of the
child.

32. It is no longer res integra that a
petition for habeas corpus is maintainable if
the child is in the custody of another parent.
It is the settled law that the Court can move
in its extraordinary jurisdiction to secure
the best interest of the child.

33. The Hon'ble Supreme Court in the
cases of Elizabeth Dinshaw Vs. Arvand
M. Dinshaw, (1987) 1 SCC 42 and
Lahari Sakhamuri Vs. Sobhan Kodali
(2019) 7 SCC 311 among others has held
that writ petitions in cases like this are
maintainable.

34. In the case of Nithya Anand
Raghavan Vs. State (NCT of Delhi),
(2017) 8 SCC 454, Hon'ble Supreme Court
in para nos.46 to 47 has held as under :-

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
96 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

47. In a habeas corpus petition as
aforesaid, the High Court must examine at
the threshold whether the minor is in lawful
or unlawful custody of another person
(private respondent named in the writ
petition). For considering that issue, in a case
such as the present one, it is enough to note
that the private respondent was none other
than the natural guardian of the minor being
her biological mother. Once that fact is
ascertained, it can be presumed that the
custody of the minor with his/her mother is
lawful. In such a case, only in exceptionable
situation, the custody of the minor (girl child)
may be ordered to be taken away from her
mother for being given to any other person
including the husband (father of the child), in
exercise of writ jurisdiction. Instead, the
other parent can be asked to resort to a
substantive prescribed remedy for getting
custody of the child.

35. Further in the case of Kanika
Goel Vs. State (NCT of Delhi), (2018) 9
SCC 578, Apex Court in paragraph 34 has
held as under :-

34. As expounded in the recent
decisions of this Court, the issue ought not
to be decided on the basis of rights of the
parties claiming custody of the minor child
but the focus should constantly remain on
whether the factum of best interest of the
minor child is to return to the native
country or otherwise. The fact that the
minor child will have better prospects upon
return to his/her native country, may be a
relevant
aspect
in
a
substantive
proceedings for grant of custody of the
minor child but not decisive to examine the
threshold issues in a habeas corpus
petition. For the purpose of habeas corpus
petition, the Court ought to focus on the
obtaining circumstances of the minor child
having been removed from the native
country and taken to a place to encounter
alien environment, language, custom etc.
interfering with his/her overall growth and
grooming and whether continuance there
will be harmful.

36. Hon'ble Supreme Court in the
case of Nithya Anand Vs. State (NCT of
Delhi) (supra) has held that in a habeas
corpus petition, the Court has to examine
at the threshold whether the minor is in
lawful or unlawful custody of another
person. The custody of the minor with the
natural guardian being her mother cannot
be said to be unlawful. In such a case, only
in exceptionable situation, the custody of
the minor (girl child) may be ordered to be
taken away from her mother for being
given to any other person including the
husband (father of the child), in exercise of
writ jurisdiction. It has further been held
that instead, the other parent can be asked
to resort to a substantive prescribed
remedy for getting custody of the child.
4 All. Km. Advika Tandon Vs. State of U.P. & Ors.
97

37. In Yashita Sahu Vs State of
Rajasthan 2013 SCC 67 it has been
reiterated that while deciding matters of
custody of a child, primary and paramount
consideration is welfare of the child. If
welfare of the child so demands then
technical objections cannot come in the
way. However, while deciding the welfare
of the child 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 child.

In paragraph 20 to 25 in respect
of the paramount consideration being
welfare of the child, Hon'ble Supreme
Court in the said judgement has held as
under :-

Welfare of the child - the
paramount consideration

20. It is well settled law by a
catena of judgments that while deciding
matters of custody of a child, primary and
paramount consideration is welfare of the
child. If welfare of the child so demands
then technical objections cannot come in
the way. However, while deciding the
welfare of the child 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 child.

21. The child is the victim in
custody battles. In this fight of egos and
increasing
acrimonious
battles
and
litigations between two spouses, our
experience shows that more often than not,
the parents who otherwise love their child,
present a picture as if the other spouse is a
villain and he or she alone is entitled to the
custody of the child. The court must
therefore be very vary of what is said by
each of the spouses.

22. A child, especially a child of
tender years requires the love, affection,
company, protection of both parents. This
is not only the requirement of the child but
is his/her basic human right. Just because
the parents are at war 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. A
child is not an inanimate object which can
be tossed from one parent to the other.
Every separation, every reunion may have
a traumatic and psychosomatic impact on
the child. Therefore, it is to be ensured that
the
court
weighs
each
and
every
circumstance
very
carefully
before
deciding how and in what manner the
custody of the child should be shared
between both the parents. Even if the
custody is given to one parent the other
parent must have sufficient visitation rights
to ensure that the child keeps in touch with
the other parent and does not lose social,
physical and psychological contact with
any one of the two parents. It is only in
extreme circumstances that one parent
should be denied contact with the child.
Reasons must be assigned if one parent is
to be denied any visitation rights or contact
with the child. Courts dealing with the
custody matters must while deciding issues
of custody clearly define the nature,
manner and specifics of the visitation
rights.

23. The concept of visitation
rights is not fully developed in India.