# Km. Vaibhavi Sharma (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Habeas Corpus Writ Petition No. 2805 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-vaibhavi-sharma-minor-anr-v-state-of-u-p-ors-45384
- **Pages:** 12

## Headnote

Constitution of India- Article 226- Habeas
Corpus Writ Petition- Maintainability of- It
is only in cases where the question of
welfare of the minor is enmeshed in
complicated detail of facts and evidence
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
205
and
this
Court
is
handicapped
to
determine those questions in the exercise
of its writ jurisdiction, that parties may be
asked to approach the competent Civil
Court, invoking jurisdiction under the
Guardians and Wards Act. In all other
cases, the Court can and must decide the
question of illegal confinement between
close family members, even parents of the
minor. The determination made by this
Court in a petition for a writ of habeas
corpus is summary in nature- The decision
of the Judge under the Guardians and
Wards Act would prevail upon this Court's
determination in summary proceedings for
the issue of a writ of habeas corpus.

A Writ of Habeas Corpus may be issued where
complicated and disputed questions of facts are
not involved- Proceedings before this Court
being summary in nature, the aggrieved party
can always take recourse to proceedings under
the Guardians and Wards Act and judgement
pronounced in the same shall prevail over that
pronounced by this Court.

The Hindu Minority and Guardianship Act,
1956- Section 6(a)- Section 13- Have to
be harmoniously construed- In some
cases, though a natural guardian, whose
right is disputed as such, may have to
seek a declaration about his legal status.
There, the provisions of Section 13 would
apply proprio vigore.

Where the right of custody of a natural guardian
is disputed then he may have to seek a
declaration for his right of custody of the minor
u/s 13 of the Act.

Constitution of India- Article 226- Habeas
Corpus Writ Petition - Custody of minor
with grandfather- The fourth respondent
has shown that the detenue lives happily
in his household, where she is taken care
of, physically, emotionally and morally,
and in all other necessary facets of her life
and personality. On the other hand, there
is one decisive feature that this Court
cannot ignore. The father has remarried
and there is a stepmother for the minordetenue, if she were asked to be placed in
the father's household -The presence of a
step-parent in the household of his/ her
parent is certainly a strong circumstance
that would weigh against the father's
claim to custody; at least, in these
summary proceedings it would be a very
important factor. There is then the fact
that the minor has stayed with the
grandfather in his household, almost since
her birth. In the circumstances, it would
be very unjust to uproot her from that
family and transplant her in her father's
household. There is no such circumstance
obtaining here that may persuade this
Court to hold the grandfather's custody of
the minor to be unlawful.

A natural guardian/ father may not get the
custody of the child where it is shown

## Text

_Characters 0–39,986 of 41,573. This is a partial read: ask again with offset=39986 for what follows._

204 INDIAN LAW REPORTS ALLAHABAD SERIES
tentativeness about the determination made
here proceeds on the nature of the
jurisdiction that is exercised primarily on
limited evidence, founded on affidavits and
some interaction. A final determination,
therefore, ought to be left to the Court of
competent jurisdiction, where intricate
questions on facts can be better gone into,
if the aggrieved party chooses to avail that
remedy.

28. It is made clear, in case, the 4th
respondent moves the Court of competent
jurisdiction under the Guardians and Wards
Act through an appropriate petition asking
for the minor's custody, or may be the
custody of both minors involved here, it
will be open to that Court to decide his
claim vis-a-vis the first petitioner, strictly in
accordance with law and the evidence led,
without being influenced by anything said
in this judgment.

29. In the result, this habeas corpus
writ petition succeeds and is allowed. The
rule nisi made is absolute. The minor,
Garima, is set at liberty in the manner that
her custody shall be handed over to her
father, Gautam Saroj, who is present in
Court. The father, Gautam Saroj, the minor,
Garima
and
the
minor's
grandfather
(maternal) are all present in Court. The 4th
respondent, Ganesh Prasad, has handed
over the minor's custody to Gautam Saroj
in Court.

30.

However,
looking
to
the
relationship between parties and the fact
that the 4th respondent, Ganesh Prasad is
the minor's grandfather (maternal), he is
found entitled to meet and interact with the
minor. It is ordered that the first petitioner,
Gautam Saroj shall permit Ganesh Prasad
to meet the minor, Garima once a month,
on the second Sunday between 10:00 a.m.
to 01:00 p.m. at Gautam Saroj's residence.
If for some reason, the aforesaid schedule
cannot be adhered to, it shall be mutually
determined between the parties, but not so
as to infringe the minimum monthly
meeting
once
for
the
grandfather
(maternal). It is further directed that during
the grandfather's meetings with the minor,
Gautam Saroj and his family members shall
extend due courtesy to Ganesh Prasad and
facilitate the meetings.

31. Let this order be communicated to
the learned District Judge, Kanpur Nagar
and the Senior Superintendent of Police,
Kanpur Dehat by the Joint Registrar
(compliance). The learned District Judge
and the Senior Superintendent of Police
shall act in aid of this order.
----------
(2020)11ILR A204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

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

Habeas Corpus Writ Petition No. 2805 of 2018

Km. Vaibhavi Sharma (Minor) & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Gulab Chandra

Counsel for the Respondents:
A.G.A., Sri Anil Tiwari, Sri Sharda Prasad
Mishra

Constitution of India- Article 226- Habeas
Corpus Writ Petition- Maintainability of- It
is only in cases where the question of
welfare of the minor is enmeshed in
complicated detail of facts and evidence
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
205
and
this
Court
is
handicapped
to
determine those questions in the exercise
of its writ jurisdiction, that parties may be
asked to approach the competent Civil
Court, invoking jurisdiction under the
Guardians and Wards Act. In all other
cases, the Court can and must decide the
question of illegal confinement between
close family members, even parents of the
minor. The determination made by this
Court in a petition for a writ of habeas
corpus is summary in nature- The decision
of the Judge under the Guardians and
Wards Act would prevail upon this Court's
determination in summary proceedings for
the issue of a writ of habeas corpus.

A Writ of Habeas Corpus may be issued where
complicated and disputed questions of facts are
not involved- Proceedings before this Court
being summary in nature, the aggrieved party
can always take recourse to proceedings under
the Guardians and Wards Act and judgement
pronounced in the same shall prevail over that
pronounced by this Court.

The Hindu Minority and Guardianship Act,
1956- Section 6(a)- Section 13- Have to
be harmoniously construed- In some
cases, though a natural guardian, whose
right is disputed as such, may have to
seek a declaration about his legal status.
There, the provisions of Section 13 would
apply proprio vigore.

Where the right of custody of a natural guardian
is disputed then he may have to seek a
declaration for his right of custody of the minor
u/s 13 of the Act.

Constitution of India- Article 226- Habeas
Corpus Writ Petition - Custody of minor
with grandfather- The fourth respondent
has shown that the detenue lives happily
in his household, where she is taken care
of, physically, emotionally and morally,
and in all other necessary facets of her life
and personality. On the other hand, there
is one decisive feature that this Court
cannot ignore. The father has remarried
and there is a stepmother for the minordetenue, if she were asked to be placed in
the father's household -The presence of a
step-parent in the household of his/ her
parent is certainly a strong circumstance
that would weigh against the father's
claim to custody; at least, in these
summary proceedings it would be a very
important factor. There is then the fact
that the minor has stayed with the
grandfather in his household, almost since
her birth. In the circumstances, it would
be very unjust to uproot her from that
family and transplant her in her father's
household. There is no such circumstance
obtaining here that may persuade this
Court to hold the grandfather's custody of
the minor to be unlawful.

A natural guardian/ father may not get the
custody of the child where it is shown that he
has re-married, is unemployed or is uneducated
and the child is already being taken care of by
the person who is not a natural guardian, since
the welfare of the child is the paramount
consideration.

Habeas Corpus petition rejected.
 (Para 16, 19, 20) (E-3)

List of Cases Cited:-

1. Syed Saleemuddin Vs Dr. Rukhsana & ors.,
(2001) 5 SCC 247

2. Nithya Anand Raghavan Vs State (NCT of
Delhi) & anr., (2017) 8 SCC 454

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

4. Yashita Sahu Vs St. of Raj. & ors., (2020) 3
SCC 67

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

1. Akhilesh Sharma, the second
petitioner says that his minor daughter, Km.
Vaibhavi Sharma is in the unlawful
detention of Surya Kant Sharma, the
minor's grandfather (maternal) and the
fourth respondent to this petition. Akhilesh
Sharma wants this Court to issue a writ,
order or direction in the nature of habeas
206 INDIAN LAW REPORTS ALLAHABAD SERIES
corpus to liberate his minor daughter, Km.
Vaibhavi Sharma from unlawful custody of
the fourth respondent and to entrust the
minor's custody to him.

2. A rule nisi was issued in this case
on 05.10.2020, ordering the minor to be
produced before this Court on 08.10.2020.
The minor was produced. At the hearing of
the rule, besides the minor, Km. Vaibhavi
Sharma, who was produced by the police,
the minor's father, Akhilesh Sharma and her
grandfather, Surya Kant Sharma, were also
present. This Court individually ascertained
the stand of each of these parties, including
the minor. This Court, particularly, inquired
of the minor, her choice and comfort in the
matter of custody. The Court also spoke to
the minor's father and her grandfather
(maternal), not only to ascertain their stand,
but to gain acquaintance with so much of
their affairs as would materially bear on the
minor's welfare.

3. This cause has arisen in the
backdrop of facts that Akhilesh Sharma, the
second petitioner and Smt. Priyanka
Sharma were married according to the
Hindu rites at Bulandshahr on 16.02.2004.
The late Smt. Priyanka Sharma was Surya
Kant Sharma's daughter. Akhilesh Sharma
and Smt. Priyanka Sharma lived together in
their matrimonial home. Two children, a
son, Vaibhav and Km. Vaibhavi Sharma, a
daughter were born of the wedlock of
parties. Vaibhav Sharma was born on
24.07.2006, whereas Km. Vaibhavi Sharma
(the detenue) was born on 05.11.2013. As
misfortune would have it, Smt. Priyanka
Sharma met with an accident by fire while
cooking on 11.07.2014. Akhilesh Sharma is
said to have done his best to save his wife,
but in vain. Akhilesh Sharma too, sustained
serious burn injuries in the incident. Smt.
Priyanka Sharma died of her injuries on
17.07.2014, during treatment at the Dr.
Ram Manohar Lohia Hospital, New Delhi.
Akhilesh Sharma was not prosecuted for
any offence relating to his wife's accidental
death, his innocence being known to the
wife's
family,
including
the
fourth
respondent. It appears that after Priyanka's
death, the parties' minor children, Vaibhav
and Km. Vaibhavi Sharma continued to live
with their grandmother (paternal), Smt.
Meena Sharma, who took good care of
them. The son, Vaibhav is reading at the
Heritage Academy, Modi Nagar, District
Ghaziabad.

4. Akhilesh Sharma has moved on in
life and has remarried one Smt. Sadhna
Sharma. He remarried on 05.02.2016, well
within the knowledge of Surya Kant
Sharma and other kinsmen of his deceased
wife. Smt. Sadhna Sharma is a Trained
Graduate Teacher and employed as such in
a School at Modi Nagar. She is claimed to
be in receipt of a salary of Rs.6000/- per
mensem. In addition, Smt. Sadhna Sharma
also undertakes private tuitions, that yield
her a further income of Rs.4000/- per
month. Akhilesh Sharma claims to be well
educated and a qualified young man, who
undertakes private tuitions, that yield him
an income of Rs.25,000/- per month. He is
an income tax payee. Akhilesh Sharma says
that when the detenue was an infant of
eight months, she was taken away by Surya
Kant Sharma with the assurance that as
soon as she grows a little older and
becomes a manageable child, she would be
entrusted back into the care and custody of
her father. This happened before Akhilesh
Sharma remarried.

5. It is also claimed by Akhilesh
Sharma that Km. Vaibhavi Sharma came
back to him in the month of May, 2017,
comfortably settling in her father's family.
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
207
Surya Kant Sharma visited Akhilesh
Sharma on 15.06.2017 and persuaded him
to permit Km. Vaibhavi Sharma to
accompany her grandfather (maternal) for a
few days. Akhilesh Sharma agreed and Km.
Vaibhavi Sharma went along with the
fourth respondent. Akhilesh Sharma says
that he went to Surya Kant Sharma's place
on 21.06.2017 to fetch his daughter back,
but the latter demanded money spent on the
child's board and lodging. Surya Kant
Sharma is claimed to have badly insulted
Akhilesh Sharma and refused to allow the
detenue to accompany her father. This led
to a complaint by Akhilesh Sharma to the
Police. And, that is how a cause about
illegal confinement has arisen.

6. The aforesaid broad statement of
facts is based on how Akhilesh Sharma, the
second petitioner has brought up this cause.
There are some matters, about which parties
are ad idem; but there are more, where the
parties are at issue. Surya Kant Sharma has
filed a counter affidavit, dated 14.05.2018 in
compliance with the notice issued by this
Court vide order dated 30.01.2018. The
following facts have been brought out in the
fourth
respondent's
counter
affidavit:
Akhilesh Sharma's wife and the fourth
respondent's daughter died in circumstances
that are not benign. There was a background
of cruelty and harassment for dowry. Her
death
occurred
under
suspicious
circumstances, as a result of burn injuries.
Surya Kanta Sharma's family did their best to
know the circumstances in which their
daughter perished in the fateful accident by
fire, but to no avail. It is hinted that an FIR
was not lodged because there was some other
matrimonial alliance between the two
families.

7. All this may not be very relevant
and this Court would be content to remark
that Akhilesh Sharma, for whatever reason,
was not prosecuted vis-a-vis his wife's
death. It is then pointed out on behalf of the
fourth respondent that Akhilesh Sharma is
not a highly qualified person, but a
graduate. He does not have any diploma or
a higher degree, entitling him to teach.
Akhilesh Sharma lives separately in his
father's house. He has no secured job or a
dependable income. His mother is an
illiterate woman and a simple housewife.
She is aged 65 years. Akhilesh Sharma's
brother stays away from their father's
family. He too does not have any
dependable source of income. He is
married and has a daughter. Akhilesh
Sharma has married Sadhna, a divorcee on
05.02.2016. Sadhna too does not possess
any qualifications, entitling her to teach.
She is a shrewd woman, who does not take
care of Akhilesh Sharma's son, Vaibhav,
who has stayed on in his father's home. The
atmosphere at Akhilesh Sharma's home is
not conducive to a healthy grooming for the
detenue. Akhilesh Sharma's father, Pt.
Deoki Nandan Sharma has renounced the
world and become an ascetic (Sadhu).
Akhilesh Sharma, his brother and mother,
all stay separately.

8. About himself, Surya Kant Sharma
says that he is a retired employee of the
U.P. Power Corporation. He retired as a
Technician Grade-2. He has two sons: one a
reputed businessman and the other an
Advocate, practicing at the District Court,
Bulandshahr. His daughters-in-law are also
educated women, who take good care of
the detenue. The fourth respondent's wife
too is a literate woman and has a caring
hand for the detenue, who is her deceased
daughter's daughter. The detenue is happy
in her grandfather's home. It is also asserted
for a fact by Surya Kant Sharma that his
grandson,
who
lives
in his
father's
208 INDIAN LAW REPORTS ALLAHABAD SERIES
household, complains to him about the
misbehaviour of his stepmother (Akhilesh
Sharma's
wife),
during
telephonic
conversation and occasional meetings. It is
also said that Akhilesh Sharma had given
the custody of his eight months' old infant
daughter to Surya Kant Sharma on
condition that he would not reclaim ever in
the future.

9. During the hearing of this rule, this
Court spoke to Km. Vaibhavi Sharma, the
minor. She appears to be an intelligent
child, all of seven years. She told the Court
that
she
lives
with
her
maternal
grandparents (Nana and Nani) and goes to
School. She reads in Class-II at the St. R.J.
Public School. She also has a friend there
going by the name, Mansi. She knows that
her father stays at Modi Nagar and
informed the Court that her father speaks to
her over cellphone. She said in unqualified
terms that she wants to stay with her
maternal grandparents and does not want to
go to her father. On being asked if the
father loves her, she answered in the
affirmative. The child was asked if she
wanted to meet her father; she answered in
the negative. The Court asked her if she
wanted to meet her father at home, to
which she signified her approval, nodding
her head in affirmation supplementing her
words.

10. Surya Kant Sharma told the Court
that he was 61 years old and a retired
employee of the U.P. Hydel Department.
He is in receipt of pension. Back home, he
has a wife, two sons, two daughters-in-law
and three grand children. On being asked
pointedly about the objection that he has to
the minor being given into the custody of
her father, he cited the father's remarriage
as a cause of concern and the basis to
object. He also said that the father has
hardly an income of Rs.2000/- - 3000/-
from the job that he undertakes. He also
informed the Court that the minor has been
staying with him since she was seven
months old and that he is all inclined to
bring up the minor.

11. The second petitioner, Akhilesh
Sharma told the Court that he is 43 years
old and his wife, the minor's mother died in
an accident. He said that he has his mother,
father, a brother and his wife at home. He
did not dispute the fact that he has
remarried. He further urged that his wife
works in a private School, whereas he does
business of dealing in scrap and also runs a
coaching centre. He told the Court that he
could earn Rs.3 - 4 lakhs a year. Akhilesh
Sharma also told the Court that he has an
average monthly income of Rs.50,000 -
60,000/-. Upon a pointed question as to
why he did not ask earlier for the minor's
custody, he said that he sustained injuries in
the accident and was then not in a position
to raise the infant. About his present desire
to have his daughter's custody, Akhilesh
Sharma said that he had asked for her
custody much earlier, but the fourth
respondent never agreed.

12. Heard Mr. Gulab Chandra, learned
Counsel for the petitioners, Mr. Sharda
Prasad Mishra, learned Counsel appearing
on behalf of respondent no.4 and Mr. S.K.
Pal,
learned
Government
Advocate
appearing
on
behalf
of
the
Staterespondents.

13. Mr. Gulab Chandra, learned
Counsel for the petitioners submits that the
second petitioner is the detenue's natural
guardian by virtue of Section 6(a) of the
Hindu Minority and Guardianship Act,
1956, and that the father being around and
seeking his minor daughter's custody, the
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
209
minor's mother's father has no right under
the law. He submits that quite apart from
the law, the minor after all is part of his
father's family, where her welfare would be
far better secured than with the grandfather.
It is argued that notwithstanding his second
marriage, he has taken care of his son with
no
trouble.
He
has
the
necessary
wherewithal to support and raise his minor
daughter,
the
detenue.
The
fourth
respondent's
case
about
the
second
petitioner's
wife
ill-treating
his
son,
Vaibhav is bereft of any evidence. Nothing
has been brought on record to show that
Vaibhav has any complaint in his father's
household or that his welfare is in any
manner adversely affected by the presence
of the stepmother. Rather, the second
petitioner's wife takes care of the child with
all fondness and affection of a mother,
which is essential to a child's balanced
development.

14. Mr. Mishra appearing on behalf of
the fourth respondent on the other hand
says that there is no explanation why the
minor was not accepted in the father's home
when his wife passed away; or, as he says
that there is no reason demonstrated why
the father entrusted the custody of an infant
daughter to her grandfather, which he now
reclaims after years. The child's welfare is
well taken care of by the grandfather, the
grandmother, their two sons and their
wives. There are other grandchildren of the
fourth respondent, who are all integrated
into a family with the minor being part of
it. There is no case of unlawful detention.
Mr. Mishra submits that there is no
evidence brought on record to indicate that
the minor's custody was handed over back
to the father by the fourth respondent and
then retaken. The minor has always been
with her grandfather since she was seven
months old. The fourth respondent has a
Government pension to support the minor,
whereas the second petitioner has no
known source of income. The minor is,
therefore, financially also insecure within
her father's household.

15. Mr. S.K. Pal, learned Government
Advocate has raised an objection about the
maintainability of this petition. He submits
that this petition does not disclose a cause
of action for the issue of a writ of habeas
corpus or some order in the nature of it.
According to Mr. Pal, it is a custody
dispute simpliciter, where the parties ought
to approach the Court of competent
jurisdiction under the Guardians and Wards
Act, 1890. This petition, according to the
learned Government Advocate, is not
maintainable.

16. The issue whether a writ of habeas
corpus in custody dispute about a minor is
maintainable is no longer res integra in
view of the decisions of the Supreme Court
in Syed Saleemuddin v. Dr. Rukhsana
and Ors., (2001) 5 SCC 247, Nithya
Anand Raghavan vs. State (NCT of
Delhi) and another, (2017)8 SCC 454,
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others,
(2019) 7 SCC 42 and Yashita Sahu vs.
State of Rajasthan and others, (2020) 3
SCC 67. It is only in cases where the
question of welfare of the minor is
enmeshed in complicated detail of facts and
evidence and this Court is handicapped to
determine those questions in the exercise of
its writ jurisdiction, that parties may be
asked to approach the competent Civil
Court, invoking jurisdiction under the
Guardians and Wards Act. In all other
cases, the Court can and must decide the
question of illegal confinement between
close family members, even parents of the
minor. Of course, the determination made
210 INDIAN LAW REPORTS ALLAHABAD SERIES
by this Court in a petition for a writ of
habeas corpus is summary in nature. It is
always subject to the right of the
disillusioned party approaching the Court
of
competent
jurisdiction
under
the
Guardians and Wards Act asking for the
minor's custody. The decision of the Judge
under the Guardians and Wards Act would
prevail upon this Court's determination in
summary proceedings for the issue of a writ
of habeas corpus. The petition is, therefore,
held maintainable.

17. Now turning to the merits of the
case, much has been made by Mr. Gulab
Chandra of the fact that the second
petitioner is the detenue's father and under
Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 is the natural
guardian. Section 6 of the Hindu Minority
and Guardianship Act, 1956 is extracted
below:

"6. Natural guardians of a
Hindu minor.--The natural guardians of
a Hindu minor, in respect of the minor's
person as well as in respect of the minor's
property (excluding his or her undivided
interest in joint family property), are--

(a) in the case of a boy or an
unmarried girl--the father, and after him,
the mother:

Provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother;

(b) in the case of an illegitimate
boy or an illegitimate unmarried girl--the
mother, and after her, the father;

(c) in the case of a married girl--
the husband:

Provided that no person shall be
entitled to act as the natural guardian of a
minor under the provisions of this
section--

(a) if he has ceased to be a
Hindu, or

(b) if he has completely and
finally renounced the world by becoming
a hermit (vanaprastha) or an ascetic (yati
or sanyasi).

Explanation.--In this section,
the expressions "father" and "mother" do
not
include
a
stepfather
and
a
stepmother."

18. Here, Section 13 of the Act
under reference is also relevant, which
reads:

"13. Welfare of minor to be
paramount consideration.--(1) In the
appointment or declaration of any person
as guardian of a Hindu minor by a court,
the welfare of the minor shall be the
paramount consideration.

(2) No person shall be entitled to
the guardianship by virtue of the provisions
of this Act or of any law relating to
guardianship in marriage among Hindus, if
the court is of opinion that his or her
guardianship will not be for the welfare of
the minor."

19. No doubt, the father is the natural
guardian and normally it is presumed that
welfare of the children is best secured in
the hands of their parents; but, it is not an
inflexible rule. Irrespective of the fact as to
who the natural guardian is, the decision
about custody of a minor is one where the
minor's
welfare
is
of
paramount
consideration. All legal rights to the minor's
custody in favour of the natural guardian
under the Personal Laws, codified or
uncodified, stand subordinated to the
consideration about the minor's welfare.
Obviously, once the Court is required to
determine who would best secure the
minor's
welfare,
there
cannot
be
a
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
211
straitjacket formula about it. It is a question
that has to be sensitively judged by the
Court bearing in mind fine personal details
about the parties, the circumstances and
their behaviour. It must be remarked that
Section 13 of the Hindu Minority and
Guardianship Act, 1956 read with Section
6(a) have to be harmoniously construed.
There is, in fact, no conflict between the
two. Section 6 spells out the rule about who
would be the natural guardian of a Hindu
minor, whereas Section 13 envisages a rule
by which the appointment or declaration of
any person as a guardian of a Hindu minor
is to be made. Now, a natural guardian may
stricto sensu not fall within the mischief of
the provisions of Section 13. These
provisions relate to persons other than
natural guardian, who have to be appointed
or declared as such. In some cases, though
a natural guardian, whose right is disputed
as such, may have to seek a declaration
about his legal status. There, the provisions
of Section 13 would apply proprio vigore.
In cases of natural guardian also, the
principle embodied in Section 13 must also
be extended when the issue is about the
custody of the minor. The principle that
welare of the minor is of paramount
consideration was elaborately considered in
Tejaswini Gaud (supra) by the Supreme
Court, where their Lordships held:

"26. The court while deciding the
child custody cases is not bound by the mere
legal right of the parent or guardian. Though
the provisions of the special statutes govern
the rights of the parents or guardians, but the
welfare of the minor is the supreme
consideration in cases concerning custody of
the minor child. The paramount consideration
for the court ought to be child interest and
welfare of the child.

27. After referring to number of
judgments and observing that while dealing
with child custody cases, the paramount
consideration should be the welfare of the
child and due weight should be given to
child's ordinary comfort, contentment,
health, education, intellectual development
and favourable surroundings, in Nil Ratan
Kundu [Nil Ratan Kundu v. Abhijit Kundu,
(2008) 9 SCC 413] , it was held as under:
(SCC pp. 427-28, paras 49-52)

"49.
In
Goverdhan
Lal
v.
Gajendra
Kumar
[Goverdhan
Lal
v.
Gajendra Kumar, 2001 SCC OnLine Raj
177 : AIR 2002 Raj 148] , the High Court
observed that it is true that the father is a
natural guardian of a minor child and
therefore has a preferential right to claim
the custody of his son, but in matters
concerning the custody of a minor child,
the paramount consideration is the welfare
of the minor and not the legal right of a
particular party. Section 6 of the 1956 Act
cannot
supersede
the
dominant
consideration as to what is conducive to the
welfare of the minor child. It was also
observed that keeping in mind the welfare
of the child as the sole consideration, it
would be proper to find out the wishes of
the child as to with whom he or she wants
to live.

50.
Again,
in
M.K.
Hari
Govindan v. A.R. Rajaram [M.K. Hari
Govindan v. A.R. Rajaram, 2003 SCC
OnLine Mad 48 : AIR 2003 Mad 315] , the
Court held that custody cases cannot be
decided on documents, oral evidence or
precedents without reference to "human
touch". The human touch is the primary
one for the welfare of the minor since the
other materials may be created either by the
parties themselves or on the advice of
counsel to suit their convenience.

51. In Kamla Devi v. State of H.P.
[Kamla Devi v. State of H.P., 1986 SCC
OnLine HP 10 : AIR 1987 HP 34] the Court
observed: (SCC OnLine HP para 13)
212 INDIAN LAW REPORTS ALLAHABAD SERIES

''13. ... the Court while deciding
child custody cases in its inherent and
general jurisdiction is not bound by the
mere legal right of the parent or guardian.
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
parens patriae jurisdiction arising in such
cases
giving
due
weight
to
the
circumstances such as a child's ordinary
comfort, contentment, intellectual, moral
and physical development, his health,
education and general maintenance and the
favourable surroundings. These cases have
to be decided ultimately on the Court's
view of the best interests of the child whose
welfare requires that he be in custody of
one parent or the other.'

52. In our judgment, the law
relating to custody of a child is fairly well
settled and it is this: in deciding a difficult
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 exercising
parens patriae jurisdiction and is expected,
nay bound, 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."

28. Reliance was placed upon
Gaurav
Nagpal
[Gaurav
Nagpal
v.
Sumedha Nagpal, (2009) 1 SCC 42 :
(2009) 1 SCC (Civ) 1] , where the Supreme
Court held as under: (SCC pp. 52 & 57,
paras 32 & 50-51)

"32. In McGrath (Infants), In re
[McGrath (Infants), In re, (1893) 1 Ch 143
(CA)] , Lindley, L.J. observed: (Ch p. 148)

''... The dominant matter for the
consideration of the court is the welfare of
the child. But the welfare of the child is not
to be measured by money only nor merely
physical comfort. The word "welfare" must
be taken in its widest sense. The moral or
religious welfare of the child must be
considered as well as its physical well
being. Nor can the tie of affection be
disregarded.'

*

*

*

50. When the court is confronted
with conflicting demands made by the
parents, each time it has to justify the
demands. The court has not only to look at
the issue on legalistic basis, in such matters
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. As observed recently
in
Mausami
Moitra
Ganguli
case
[Mausami Moitra Ganguli v. Jayant
Ganguli, (2008) 7 SCC 673] , the court has
to give due weightage to the child's
ordinary contentment, health, education,
intellectual development and favourable
surroundings but over and above physical
comforts, the moral and ethical values have
11 All. Km. Vaibhavi Sharma (Minor) & Anr. Vs. State of U.P. & Ors.
213
also to be noted. They are equal if not more
important than the others.

51. The word "welfare" used in
Section 13 of the Act has to be construed
literally 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 itsparens patriae
jurisdiction arising in such cases.

(emphasis in original)

29. Contending that however
legitimate the claims of the parties are, they
are subject to the interest and welfare of the
child, in Rosy Jacob [Rosy Jacob v. Jacob
A. Chakramakkal, (1973) 1 SCC 840] , this
Court has observed that: (SCC pp. 847 &
855, paras 7 & 15)

"7. ... the principle on which the
Court should decide the fitness of the
guardian mainly depends on two factors: (i)
the father's fitness or otherwise to be the
guardian, and (ii) the interests of the
minors.

***

15. ... The children are not mere
chattels: nor are they mere play-things for
their parents. Absolute right of parents over
the destinies and the lives of their children
has,
in
the
modern
changed
social
conditions, yielded to the considerations of
their welfare as human beings so that they
may grow up in a normal balanced manner
to be useful members of the society and the
guardian court in case of a dispute between
the mother and the father, is expected to
strike a just and proper balance between the
requirements of welfare of the minor
children and the rights of their respective
parents over them. The approach of the
learned Single Judge, in our view, was
correct and we agree with him. The Letters
Patent Bench on appeal seems to us to have
erred [Jacob A. Chakramakkalv. Rosy J.
Chakramakkal, 1972 SCC OnLine Mad 90
: (1972) 85 LW 844] in reversing him on
grounds
which
we
are
unable
to
appreciate."

30. The learned counsel for the
appellants has placed reliance upon G. Eva
Mary Elezabath [G. Eva Mary Elezabath v.
Jayaraj, 2005 SCC OnLine Mad 472 : AIR
2005 Mad 452] where the custody of the
minor child aged one month who had been
abandoned by father in church premises
immediately on death of his wife was in
question. The custody of the child was
accordingly handed over to the petitioner
thereon who took care of the child for two
and half years by the Pastor of the Church.
The father snatched the child after two and
a half years from the custody of the
petitioner. The father of the child who has
abandoned the child though a natural
guardian
therefore
was
declined
the
custody.

31. In Kirtikumar Maheshankar
Joshi [Kirtikumar Maheshankar Joshi v.
Pradipkumar Karunashanker Joshi, (1992)
3 SCC 573 : 1992 SCC (Cri) 778] , the
father of the children was facing charge
under Section 498-A IPC and the children
expressed their willingness to remain with
their maternal uncle who was looking after
them very well and the children expressed
their desire not to go with their father. The
Supreme
Court
found
the
children
intelligent enough to understand their well
being and in the circumstances of the case,
handed over the custody to the maternal
uncle instead of their father.

34. As observed in Rosy Jacob
[Rosy Jacob v. Jacob A. Chakramakkal,
(1973) 1 SCC 840] earlier, the father's
fitness has to be considered, determined
and weighed predominantly in terms of the
214 INDIAN LAW REPORTS ALLAHABAD SERIES
welfare of his minor children in the context
of all the relevant circumstances. The
welfare of the child shall include various
factors like ethical upbringing, economic
well being of the guardian, child's ordinary
comfort, contentment, health, education,
etc. The child Shikha lost her mother when
she was just fourteen months and is now
being deprived from the love of her father
for no valid reason. As pointed out by the
High Court, the father is a highly educated
person and is working in a reputed position.
His economic condition is stable.

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."

20. Now in this case too, this Court
finds that the minor, Km. Vaibhavi Sharma is
an intelligent and bright child. She attends a
good School and reads in Class-II. She has
expressed her definitive desire to stay in her
grandfather's (maternal) household, where
she is integrated into the family, almost since
birth. She has been with them since she was
seven months old. The father has not been
able to come up with a logical explanation as
to why he entrusted the care of his infant
daughter to his father-in-law, the fourth
respondent. He has also not been able to
show by any evidence the steps he took
earlier to secure the minor's custody. The
grandfather is a retired Government servant
and apparently has means to raise the minor.
The minor seems to be happy in her
grandfather's
household. The
emotional
comfort and ease that the child finds in his/
her home is key to the development of a
balanced personality. Within the limited
scope of the inquiry that this Court
undertakes in a petition for a writ of habeas
corpus, this Court finds that affirmatively
speaking the fourth respondent has shown
that the detenue lives happily in his
household, where she is taken care of,
physically, emotionally and morally, and in
all other necessary facets of her life and
personality. On the other hand, there is one
decisive feature that this Court cannot ignore.
The father has remarried and there is a
stepmother for the minor-detenue, if she were
asked to be placed in the father's household.
There
is
no
presumption
that
every
stepmother is a vamp, but the presence of a
step-parent in the household of his/ her parent
is certainly a strong circumstance that would
weigh against the father's claim to custody; at
least, in these summary proceedings it would
be a very important factor. There is then the
fact that the minor has stayed with the
grandfather in his household, almost since her
birth. In the circumstances, it would be very
unjust to uproot her from that family and
transplant her in her father's household. There
is no such circumstance obtaining here that
may persuade this Court to hold the
grandfather's custody of the minor to be
unlawful.

21. It is, however, made clear that it
will be open to the second petitioner to
establish his entitlement to the minor's
11 All. Dhirendra Singh Vs. State of U.P. & Anr.
215
custody before a Court of competent
jurisdiction by invocation of such remedy
as may be advised. In the event, the second
petitioner approaches a Court of competent
jurisdiction to establish his claim to the
minor's custody, it shall be determined by
that Court in accordance with law, without
being influenced anything said here.

22. In the result, this Habeas Corpus
Writ Petition fails and is dismissed. The
rule nisi is discharged.

23. However, the minor's father,
Akhilesh Sharma has a right to meet his
daughter and spend time with her.
Learned Counsel for the second petitioner
has said that unless provision is made for
visitation, the right of the father may
remain
a
dead
letter.
In
the
circumstances, it is ordered that the
second petitioner, Akhilesh Sharma shall
be entitled to visit his daughter, Km.
Vaibhavi Sharma at Surya Kant Sharma's
home, where she lives, on the second
Sunday of every month between 10:00
a.m. to 1:00 p.m. He will be allowed by
Surya Kanta Sharma to spend time with
his daughter. During each of these visits,
Surya Kant Sharma and other members of
his family shall extend all due courtesy to
Akhilesh Sharma. It would be open to the
parties to adjust the schedule of these
visitations, but not so as to deprive the
second petitioner of his right to visit his
daughter at least once a month for three
hours.

24.