# Master Devansh Agarwal & Anr v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Habeas Corpus Writ Petition No. 9307 of 2020
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-devansh-agarwal-anr-v-state-of-u-p-ors-50034
- **Pages:** 17

## Headnote

G.A., Sri Ashok Kumar Singh, Sri Deepk Agarwal,
Sri Gantavya, Sri Gavrav Mishra, Sri Lalit Mohan
Singh, Mr. Nirmit Srivastava, Mr. Prabhjit Jauhari,
Sri Nirmit Srivastava, Sri R.P. Shukla, Sri Vivek
Sonkar
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
875
Civil Law-Constitution of India, 1950-
Article 226-Inter parental custody dispute
pertaining to the minor child- Writ of
Habeas Corpus seeking direction to the
opposite parties to produce detenue and
handover his custody to the petitioner
No.2 (Mother)-Whenever a question arises
before a court pertaining to the custody of
the minor child, the matter is to be
decided not on consideration of the legal
rights of the parties but on the sole and
predominant criterion of what would best
serve the interest and welfare of the childWelfare of the child must be decided on a
consideration
including
the
general
psychological,
spiritual
and
emotional
welfare of the child-Court must be to
choose the course which will best provide
for the healthy growth, development and
education of the child so that he or she
will be equipped to face the problems of
life as a mature adult-Custody of minor
son
shall
remain
with
the
motherVisitation rights of father modified. (Para
23, 24)

Petition disposed off. (E-15)

List of Cases cited:

## Text

_Characters 0–39,776 of 55,257. This is a partial read: ask again with offset=39776 for what follows._

874 INDIAN LAW REPORTS ALLAHABAD SERIES
illegal detention. The aforesaid observation
was considered by two Division Benches of
this Court in the case of Markendey
(supra) and Udaybhan Shuki (supra),
which clearly reflects that a writ of the
habeas corpus cannot be issued in favour of
a person released on bail or on personal
bond.

35. As per the Black's Law Dictionary
8th Edition, ''Personal Bond' is a written
document under which the obligator
formally recognizes an obligation to do
specific act; personal bond is a bond
containing promise without security. This
clearly reflects that in a case of personal
bond no other person except the very
individual, who is coming forward is
involved. Thus, a person, who himself is
making a promise to do certain act, as in
the present case, to cooperate in judicial
proceedings whenever required, is not even
in notional custody of some/any other
person.

36. Under such circumstances, it can
be safely held that writ of habeas corpus
would not be maintainable at the instance
of a person, who has got himself released
as per the procedure established by law i.e.
Section 151 Cr.P.C. on his own promise, to
claim that he shall be made free from his
own promise made in the personal bond by
issuing a writ of habeas corpus. In case,
any such habeas corpus is held to be
maintainable, this will give a handle to the
persons, specifically, violators of law to
wriggle out from their own promise and
even in a case of bail or remand to get
themselves free from any condition/term as
may be imposed on them while releasing
them from physical custody and would
thus, render the entire administration of
criminal justice ineffective and redundant.

37. In view of the discussions made
hereinabove, we hold that the present
petition after release of the petitioners on
personal bonds has become infructuous.
The claim of the petitioners that they are
still in notional custody with their liberty
curtailed
and
writ
petition
is
still
maintainable, is rejected. No such relief,
i.e. release from custody, as claimed during
course of argument by claiming that the
petition is still maintainable, can be granted
to the petitioners.

38. Present petition is accordingly
dismissed.
----------
(2023) 4 ILRA 874
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.04.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 9307 of 2020
connected with
C.M. Application No. 1A/14/2022
&
C.M. Application No. 25/2022
&
C.M. Application No. 15/2022

Master Devansh Agarwal & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Arun Sinha, Sri Siddhartha Sinha, Sri Sushil
Kumar Singh

Counsel for the Respondents:
G.A., Sri Ashok Kumar Singh, Sri Deepk Agarwal,
Sri Gantavya, Sri Gavrav Mishra, Sri Lalit Mohan
Singh, Mr. Nirmit Srivastava, Mr. Prabhjit Jauhari,
Sri Nirmit Srivastava, Sri R.P. Shukla, Sri Vivek
Sonkar
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
875
Civil Law-Constitution of India, 1950-
Article 226-Inter parental custody dispute
pertaining to the minor child- Writ of
Habeas Corpus seeking direction to the
opposite parties to produce detenue and
handover his custody to the petitioner
No.2 (Mother)-Whenever a question arises
before a court pertaining to the custody of
the minor child, the matter is to be
decided not on consideration of the legal
rights of the parties but on the sole and
predominant criterion of what would best
serve the interest and welfare of the childWelfare of the child must be decided on a
consideration
including
the
general
psychological,
spiritual
and
emotional
welfare of the child-Court must be to
choose the course which will best provide
for the healthy growth, development and
education of the child so that he or she
will be equipped to face the problems of
life as a mature adult-Custody of minor
son
shall
remain
with
the
motherVisitation rights of father modified. (Para
23, 24)

Petition disposed off. (E-15)

List of Cases cited:

1. Nithya Anand Raghvan Vs St. (NCT of Delhi)
& anr. 2017 8 SCC 454

2. Shradha Kannaujia (Minor) & anr. Vs St. of
U.P. & ors. in Habeas Corpus No. 716 of 2020

(Delivered by Hon'ble Shamim Ahmed, J.)

1. This case is listed before this Court
being
regular
Bench,
as
per
constitution/roster of this High Court.

2. C.M. Application No. 1A/14/2022
and C.M. Application No. 25/2022 have
been moved by the respondent No.3 (father
of the detenue) on 07.03.2022 and
02.12.2022 respectively for modification of
the order dated 14.12.2021 and 06.01.2022
and C.M. Application No.15/2022 has been
moved by the petitioner's next friend
(mother of the detenue) on 07./08.03.2022
for modification of the order dated
06.01.2022 passed by co-ordinate Bench of
this Court in the present habeas corpus writ
petition.

3. Heard Shri Jyotindra Mishra,
learned Senior Advocate assisted by Shri
Sushil Kumar Singh, learned counsel for
the petitioners, Shri Prashant Chandra,
learned Senior Advocate assisted by Ms.
Meha Rashmi, learned counsel for opposite
parties 3 to 6 and Shri Diwakar Singh and
Shri Hari Shanker Bajpai, learned AGA-I
for the opposite parties 1 and 2 and perused
the record.

4. The petitioners had filed this
Habeas Corpus petition,bearing No. 9307
of 2020 with the following reliefs:

"(i) Issue a writ, order or
direction in the nature of Habeas Corpus
directing the opposite parties to produce the
petitioner No.1/ Detenue and handover his
custody to the petitioner No.2.

(ii) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances of
the case."

5. The brief facts of the case are that
opposite party no.3-Dr. Dinesh Agarwal
and petitioner no.2 have serious differences
which lead to cleavage in their matrimonial
life, resulting their non judicial separation
from matrimonial home situated at Katras
Bazar Rajbari Road, Katras, Dhanbad,
Jharkhand. The petition discloses that
petitioner No.2 and opposite party No.3
married on 30.6.2017. Soon after marriage
Dr. Dinesh Agarwal, opposite party no.3
and his family members started demanding
Rs.40 lacs in dowry from the petitioner
876 INDIAN LAW REPORTS ALLAHABAD SERIES
no.2 as opposite party no.3 came to know
that she has a P.P.F. account worth more
than Rs.40 lacs. Apart from the said
demand of dowry, the opposite party no.3
and his family members namely petitioner's
father-in-law, Sri Jeewan Lal Agrawal and
others started torturing her mentally and
physically in connection with the said
demand. Due to the harassment, petitioner
no.1 was compulsed to live in Lucknow
most of the time where the petitioner no.1,
detenue was born on 3.7.2018. Petitioner
no.1 and 2 were brought by the opposite
party no.3 to Dhanbad after birth of
detenue but due to constant harassment
petitioner no.2 forced to come back to
Lucknow with petitioner no.1 by the end of
February, 2020 and had been staying in
Lucknow ever since.

6. On 6.6.2020, the opposite party
no.3 suddenly came to the house of the
petitioner no.2 and pretended that he wants
to reconcile with the petitioner no.2. He
stayed there, but on the next morning at
about 9 O'clock, the opposite party no.3
pretended to take the child out from the
house. He has taken away the detenue,
petitioner no.1 assuring the petitioner no.2
to come back after having a short drive
with him. Opposite party no.3 even left his
luggage at the house of petitioner no.2 to
assure and keep her into impression that he
will return with the petitioner no.1 but
actually he ran away and kidnapped the
petitioner no.1 detenue with the help of his
driver. After that petitioner no.2 through
their common friend came to know that the
opposite party no.3 have reached at Katras,
District- Dhanbad, State of Jharkhand
taking away the detenue with him illegally
from the custody of petitioner no.2.
Petitioner no.2 when contacted the opposite
party no.3, he told that petitioner no.2
should give access of her P.P.F. account to
him if she wants petitioner no.1, detenue
back.

7. Since the incident dated 7.6.2020
of abduction of petitioner no.1, the child is
by his father (the opposite party no.3), he is
in custody of father in Katras, District
Dhanbad in the State of Jharkhand. This
gave rise to the inter parental custody
dispute pertaining to their minor child. For
the purpose of brevity and convenience
hereinafter in foregoing paras wherever
contextually needed the opposite party
no.3, the petitioner no.2 and the petitioner
no.1 shall be addressed also as ''father'
''mother'
and
''the
child/detenue'
respectively.

8. At the time of incident the child
detenue (petitioner no.1) was an infant of
about 1 year and 9 months' age. The mother
has stated that the detenue child is
dependent on mother's milk and needs such
care and protection which father cannot
provide. She is highly educated lady,
qualified in M.B.A. Finance and Human
Resources,
had
worked
as Assistant
Professor in B.B.D. University at Lucknow
but quit her job to take care of her child.
She has been taking care of her child
financially or otherwise since his birth and
petitioner no.1, the detenue has never been
parted from the petitioner no.2. She has a
constant source of income being generated
from her savings and residing with her
parents in their own house at Lucknow. In
support of her claim as to the financial
competence, the petitioner no.2 has filed
Income Tax Return of year 2019-20 issued
by
the
Income
Tax
Department
as
Annexure-2, wherein the gross income is
shown Rs.5,16,328/-. In the night of
6.6.2020, the opposite party no.3 landed at
the house of the petitioner no.2 and
virtually snatched away and kidnapped the
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
877
child in the morning of 7.6.2020 pretending
to come back after a short drive with the
child.

9. The instant petition was filed on
15.6.2020 and was first taken up on
18.6.2020. On 13.7.2020, a co-ordinate
Bench of this Court had made following
observations,
which
is
reproduced
hereunder:-

"Learned
counsel
for
the
petitioner submits that detenue aged about
two years has been illegally snatched from
the
custody
of
petitioner
no.2
and
herculean
effort
was
made
by
the
concerned police to trace out the detenue
but since the opposite party nos.3 and 4 are
residents of Jharkhand State, the concerned
local police is not cooperating with the
U.P. Police in absence of any specific
direction of this Court.

Learned AGA submits that effort
was made to search out the detenue but the
detenue could not be traced out.

In view of the above, issue notice
to opposite party nos.3 to 6 through
opposite party no. 2 i.e. Station House
Officer, Police Station Aliganj, Lucknow to
produce the detenue Master Devansh on
05.08.2020."

10. Again on 5.8.2020, a co-ordinate
Bench of this Court had made following
observations,
the
relevant
portion
is
extracted and reproduced hereunder:-

"Sri R.P. Shukla, learned counsel
for respondent nos. 3 to 6, submits that in
pursuance to the order of this Court dated
13.07.2020, the child Master Devansh
Agarwal could not be produced today as he
is not well. A copy of the medical
prescription dated 03.08.2020 has been
produced today in Court. Sri Shukla prays
for and is granted a week's time for
bringing on record the said medical
prescription and he would also indicate the
medical condition of the child. The medical
condition to be indicated on behalf of
respondent nos. 3 to 6 would also indicate
the medical certificate from a doctor as to
whether the child is fit to travel from
Jharkhand to Lucknow and in case the
certificate does not indicate so then the
child shall be produced before this Court
on 14.08.2020."

11. On 20.1.2021, a co-ordinate
Bench of this court had passed following
order:-

"1. Heard Sri Siddhartha Sinha,
learned counsel for the petitioners as well
as learned A.G.A. for the State while Sri
Vivek
Sonkar, Advocate
has
put
in
appearance on behalf of opposite party
No.s 3 to 6.

2. An application for recall of
order
dated
11.1.2021
along
with
vakalatnama has been filed in the registry
by Sri Vivek Sonkar on 19.11.2020. Office
has reported that it has not been able to
trace any such application for recall of
order dated 11.1.2021. In absence of the
application for recall, I proceed with the
matter.

3. It has been submitted by Sri
Siddhartha Sinha that this Court by means
of order dated 17.3.2020 had directed
opposite party No.s 3 and 6 to produce the
detenue Master Devansh Agrawal on
5.8.2020. A perusal of the order sheet dated
5.8.2020 indicates that on 5.8.2020 the
detenue could not be produced and,
therefore, by means of the order dated
878 INDIAN LAW REPORTS ALLAHABAD SERIES
5.8.2020 this Court directed for production
of the detenue on 14.8.2020. It has been
submitted that there was no sitting of this
Court on the said date due to COVID 19
lock-down, therefore, this Court by means
of order dated 27.8.2020 directed the
detenue to be produced on 8.9.2020, on
which date also there was no Court sitting
due to the pandemic. It has been submitted
that in the meanwhile opposite party No.2
in order to avoid producing the detenue
moved an application for recall of the order
dated 27.8.2020 which was rejected on
14.10.2020. Subsequently, on 11.1.2021 this
Court directed for production of the
detenue today i.e. 20.1.2021.

4. When the matter has been taken
up Sri Vivek Sonkar, the new counsel
appearing for opposite parties No.3 to 6,
could not show any cogent reason for nonappearance of the detenue as directed by this
Court vide its order dated 20.1.2021 today.
He, however, submits that opposite party
No.3 is in Jharkhand and they will appear on
any date fixed by this Court. It has also been
informed that as per direction of this Court a
sum of Rs.30,000/- has already been
deposited in this Court to show the bonafide
and also to enable opposite party No.3 along
with the detenue to appear before this Court.

5. In view of above, I see no
reason as to why opposite party No.3 is not
appearing before this Court along with the
detenue. As, such, list this case on
28.1.2021 on which date opposite party
No.3 shall appear before this Court along
with the detenue Master Devansh Agarwal.

6. It is made clear that if this
order is not complied with, the Court will
have no option except to adopt coercive
methods for their appearance."

12. That during pendency of the
instant habeas corpus the opposite party
No.3 filed a Special Leave to Appeal (Crl.)
No.586 of 2021 against the order dated
20.1.2021. Hon'ble Supreme Court referred
the matter to Supreme Court's Mediation
Center and dismissed the aforesaid Special
Leave
to
Appeal
vide
order
dated
25.1.2021. The order dated 25.01.2021 is
quoted herein below:

"The High Court directed the
petitioner No.1 to be present in Court on
20.1.2021 along with the child in a writ of
Habeas Corpus filed by the respondent
No.3. We are informed by the learned
counsel for the petitioners that the matter is
now listed for hearing on 28.01.2021.

Learned
counsel
for
the
petitioners brought to our notice an order
passed by this court on 11.01.2021 in
Transfer Petition (c) Nos.1371-1372 of
2020 filed by Respondent No.3 by which
the matrimonial dispute has been referred
to the Supreme court Mediation Centre.

We are not inclined to interfere
with the order impugned in the special
leave petition. However, the petitioner is at
liberty to bring to the notice of the High
Court that the entire dispute is referred to
the Supreme Court Mediation Centre and
the transfer petition was directed to be
listed after eight weeks.

The special leave petition is
dismissed.

Pending application (s), if any,
shall stand disposed of."

13. That during pendency of the
mediation proceedings at Hon'ble Supreme
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
879
Court Mediation Centre, the case was relisted before a co-ordinate Bench of this
Court on 28.01.2021 and a co-ordinate
Bench of this Court had passed the
following order:

"1. Today when the matter has
been taken up Sri Deepak Agrawal,
Advocate has put in appearance on behalf
of respondent no. 3. He has placed an order
of
Hon'ble
Supreme
Court
dated
25.01.2021, passed in SLP (Civil) No. 586
of 2021. According to which it seems that
one transfer application has been preferred
before the Apex Court where the present
matrimonial dispute has been referred to
the Mediation Center of the Apex Court.
The aforesaid SLP was filed against the
earlier
order
of
this
Court
dated
20.01.2021, where this Court had directed
respondent no. 3 to appear before this
Court alongwith detenue Master Devansh
Agarwal.

2. Perused the order of Apex
Court dated 25.01.2021.

3. Today, attention of this Court
has been drawn towards the order of the
Apex Court dated 11.01.2021, passed in
Transfer Petition (Civil) No. 1371 of 2020.

4. The conduct of the counsel
appearing for opposite party no. 3 is highly
regrettable inasmuch as, the earlier orders
passed by the Hon'ble Apex Court were
never brought to the notice of this Court,
which lead this Court to pass the order
dated 20.01.2021.

5. In the light of the apology
made by learned counsel appearing for
respondent no. 3, this Court is not passing
any further order in this regard.

6. Looking into the order of the
Apex Court dated 11.01.2021, as well as
25.01.2021, list this case after two month's.

7. Learned counsel for the parties
shall inform this Court, on the next date of
listing, about the outcome of the mediation
proceedings at Supreme Court."

14. Thereafter in pursuance of order
dated 25.1.2021 passed in Special Leave to
Appeal (Crl.) No.586 of 2021, the parties
appear before the Mediation Center of
Hon'ble Supreme Court and after several
rounds of single and joint session of
mediation and after considering options
available with them parties could not arrive
at any amicable solution to resolve their
dispute, as such, the mediation failed. The
true copy of the Mediation Report is made
annexure
no.2
to
the
supplementary
affidavit, which is reproduced hereunder:-

"Comprehensive
mediation
sessions were held with parties on
01.02.21, 02.01.21 & 04.02.21 through
virtual mode and on 08.02.21 physical
mediation at Supreme Court Mediation
Centre.

However, after several rounds of
single and joint session of mediation and
after considering options available with
them parties could not arrive at any
amicable
solution
to
resolve
their
dispute."

15. Thereafter, the instant habeas
corpus petition was listed on 14.12.2021
and a co-ordinate Bench of this Court had
disposed of the instant petition and the
operative
portion
of
the
observations/directions
is
reproduced
hereunder:
880 INDIAN LAW REPORTS ALLAHABAD SERIES

" Here, in the present case the
detention of the minor child by the father is
held illegal and without authority of law.
Further, it has been observed by this court
during pendency of petition several orders
of the court with regard to the production
of child and even to facilitate the meeting
of the mother with the child were flouted
over by the father. This is enough to show
that father not only has taken away the
child illegally from the custody of mother
but also he had not left any opportunity for
the child to see his mother or the mother to
see her child. This conduct of the father if
taken with the facts of differences between
the husband and wife i.e., the mother of the
child by reason of which they are
separately residing and the fact that the
F.I.R. under Sections 498-A, 336, 506 of
I.P.C. and Section 3/4 of Dowry Prohibition
Act is lodged against father with regard to
cruelty in connection with the demand of
dowry and abduction of the child, there is
reason to believe that father in furtherance
of his malice towards mother will also
make brain wash of the child towards his
mother that would not be in the interest and
welfare of the child. The mother is
competent
enough
to
take
care,
maintenance and upbringing of the child
with the love and affection. She deserves to
have custody of the child removing the
same from the father.

In
view
of
the
above
circumstances, the writ of habeas corpus is
required to be issued to opposite party no.3
to produce the child before this Court on
20.12.2021 for handing over the same to
the petitioner no.2 (mother), however, he
will be at liberty to get finally decided his
rights of exclusive custody as guardian by
the family court or court of Guardians and
Wards Act which are competent to declare
the same in the welfare of the child on the
basis of evidences produced before the said
courts.

Opposite party no.3 is directed to
produce the child in the court at 2:00 p.m.
on 20.12.2021 for handing over the custody
of the child to the petitioner no.2 (mother).
The order regarding the visitation rights of
opposite party no.3 will be passed after the
child is produced in the court.

The opposite party no.2, S.H.O.
Police Station Aliganj, Lucknow is directed
to ensure the production of child alongwith
opposite party no.3 in the court on the date
fixed for implementation of the order. The
expenses for the journey with companion if
any deposited in the court pursuant to the
order
dated
20.1.2021
still
remains
unexhausted which shall be paid to the
opposite party no.3 by the Senior Registrar
of the court after handing over the child by
the opposite party no.3 to petitioner no.2
(mother).

The instant writ petition of
habeas corpus is disposed of in the above
said terms.

Office is directed to list for
implementation of the order on 20.12.2021.

The Senior Registrar of the court
is directed to promptly serve the copy of the
judgment to the opposite party no.3 in
person in addition to the service in
ordinary process through e-mail also and
to the Superintendent of Police, Dhanbad
for facilitating the implementation of order
through his official Fax and e-mail.

The opposite party no.2, S.H.O.,
Police Station Aliganj, Lucknow shall get
copy of the order promptly and constitute a
police team to recover the child with
opposite party no.3, so as to ensure the
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
881
production of the child before the court on
the date of implementation."

16. Thereafter the case was again
listed on 20.12.2021, 21.12.2022 and again
on 05.01.2022 and a co-ordinate Bench of
this Court passed the following order:

"This case is placed today before
the Court from notice after 02:00 P.M.

The case is called out.

Learned counsel for the petitioner
Sri Ram Chandra Singh, Advocate and
learned A.G.A. for the State, Sri Anurag
Singh Chauhan, Advocate are present in the
Court.

Vide order dated 21.12.2021, the
private respondent no.3 i.e. Dr. Dinesh
Agarwal on the assurance of his learned
counsel Ms. Rose Mary Raju, Advocate was
directed to appear with child, namely,
Master Devansh Agarwal before the Court
at 02:00 P.M. and in case of his default, the
opposite party no.2 i.e. Station House
Officer, Police Station Aliganj, District
Lucknow was also directed to comply with
the order in terms of order dated
14.12.2021 by ensuring his production
alongwith the child "Master Devansh
Agarwal".
Learned A.G.A.
was
also
directed to ensure compliance of the order.

Today, the petitioner-mother of
the child "Master Devansh Agarwal", Smt.
Deepti Goyal is personally present before
the Court, however, none is present on
behalf of the opposite party no.3, namely,
Dr. Dinesh Agarwal.

The Station House Officer, Police
Station Aliganj, District Lucknow who was
directed to ensure the production of child
alongwith Dr. Dinesh Agarwal in the Court
though present in the Court but the noncompliance is explained by him that a team
constituted for the compliance of the order
is still stayed at the place of abode of
opposite party no.3 i.e. Dr. Dinesh Agarwal
at Katras Bazar, Rajbari Road, Dhanbad,
District Dhanbad, State of Jharkhand,
which informed the Station House Officer
that Dr. Dinesh Agarwal left the place for
Delhi alongwith the child, he is still in
Delhi and is awaited at his home district.

Learned A.G.A. informs on the
basis of conversation made with the Station
House Officer, Police Station Aliganj,
District Lucknow that the case is placed
before the Court today through notice but
the Station House Officer, Police Station
Aliganj, District Lucknow is present in the
Court to explain the situation. He informed
in accordance with the information sent by
his team in District Dhanbad, State of
Jharkhand that the private opposite party
no.3 i.e. Dr. Dinesh Agarwal has to come
tomorrow from Delhi to Lucknow through
air as his Special Leave Petition against
the order stands dismissed today by order
of the Court.

Be so as it may.

Office of the Registrar (Listing) is
directed to list the matter before the Court
tomorrow i.e. on 06.01.2022.

It is further taken into notice that
the office of the Registrar (Listing) was in
apparent error whatsoever reason may be
therefor in not listing the case in the cause
list in accordance with the order dated
21.12.2021
on
the
date
fixed
i.e.
05.01.2022 for personal appearance at
02:00 P.M. Such error should not be
882 INDIAN LAW REPORTS ALLAHABAD SERIES
repeated further and the officer/official who
committed the default in such non listing be
called for their explanation, the conclusion
be communicated to this Court by the
Registrar (Listing)."

17. Thereafter, in compliance of order
dated 05.01.2022, the case was again listed
on 06.01.2022 and a co-ordinate Bench of
this Court passed the following order:

"Called on.

Today
on
06.01.2022,
Sub
Inspector Sri Durga Prasad Yadav, PNO
930440020 and lady Constable Ms.
Antima Singh PNO 112304472, Police
Station,
District
Lucknow
appeared
before the Court to produce the child
Master Devansh Agarwal with his father
Dr.
Dinesh
Agarwal
in
Court
in
compliance of judgment and order dated
14.12.2021 and subsequent order dated
21.12.2021.

In accordance with the order
dated 05.01.2022 passed in Special Leave
to Appeal (Crl.) No. 10080 of 2021 (Dr.
Dinesh Agarwal Vs. State of U.P. and
others) by Hon'ble Apex Court with
direction to hand over the child to mother
at 2:00 p.m., the child is handed over
today to the mother Smt. Deepti Goel.

The father Dr. Dinesh Agarwal,
private opposite party no. 3 and mother, next
friend of the child Master Devansh Agarwal,
Smt. Deepti Goel both have signed the
ordersheet with regard to delivery of child to
the mother and receiving by the mother, the
petitioner's next friend.

In the order dated 14.12.2021,
order as to visitation right to father was
kept contingent upon the handing over
the child by opposite party no.3, Dr.
Dinesh Agarwal to the petitioner's next
friend Smt. Deepti Goel, therefore this is
the occasion to pass the order with
regard to right of visitation of the child to
the father.

(i) On conversation with opposite
party no. 3, Dr. Dinesh Agarwal, father of
the child Master Devansh Agarwal, as per
his request, on every weekend (Sunday)
shall visit the child at the residence of
petitioner's next friend Smt. Deepti Goel
i.e. B-47, Sector-H, Aliganj, District
Lucknow where the petitioner's next friend
the mother Smt. Deepti Goel use to reside
with the child.

(ii) In case, for any reason if
opposite party no. 3 Dr. Dinesh Agarwal
fails to visit the child on Sunday, after
informing the next immediate day after
Sunday within one or two days to the
petitioner's next friend Smt. Deepti Goel,
may visit the child on that altered day.

(iii)
Reciprocally,
the
petitioner's next friend, mother of the
child Master Devansh shall ensure to
remain present at the House No. B-47,
Sector-H, Aliganj, District Lucknow for
the purpose of complying with the
direction as to the visitation right given
to the father or on any other date as
stipulated herein-above. The mother shall
not leave or change the house of her
abode with child without seeking prior
permission of the Court and informing to
the father of the child, opposite party no.
3. She will not leave with child Master
Devansh the jurisdiction of the Court
without prior permission as directed
herein-above.
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
883

(iv) The father, opposite party no.
3 will have the right to visit the child
Master Devansh within 10 a.m. to 5 p.m. in
day time in the presence of petitioner's
mother or any other family members of her
parental house, in their supervision and
control, however they are not permitted to
make any obstruction in such visiting of the
child by the father.

(v) The father of Master Devansh,
opposite party no. 3, will have a right to
contact with the child Master Devansh his
son, telephonically either audio or video
mode. For this purpose the mother will
facilitate such telephonic connection with
father of the child. It may be appropriate
for both of them (father and mother of the
child Master Devansh) to fix a particular
time
for
the
purpose
of
telephonic
conversation with child.

(vi) The father if wants to give
any gift in love and affection with child,
brings anything for his use or do something
necessary for well being of child, the
mother, petitioner's next friend or any of the
family members of her parental house will
not make any forbiddance or obstruction in
such acts. However, father shall keep in mind
that such things would be safe in use and
occupationed by the child.

(vii) Since the child is of so young
age
that
still
is
under
scheduled
vaccination prescribed by the health
department, the record of vaccination and
as to the further vaccination shall be
handed over by the father Dr. Dinesh
Agarwal to the mother Smt. Deepti Goel as
soon as possible within 15 days from the
date of order so that further vaccination, if
any, may be given timely without failure on
her part.

(viii) It would be the duty of the
father, whenever he visits the child to
maintain the safe distance, put mask and
keep the hand sanitized and to follow the
protocol of the Covid-19 guidelines.

(ix) It is expected that the father
till now has been twice vaccinated. If it is
not so, he will ensure to be vaccinated
twice as soon as possible. Mother shall
also keep herself vaccinated twice.

(x) In case, the father is twice
vaccinated with Covid-19 Vaccine, the
rider of the safe distance and putting mask
need not to be followed during visitation.

Looking into the pendency of
matrimonial petition in competent court of
law, the request of opposite party no. 3 with
regard to overnight stay during visit to the
child in the home of the petitioner's next
friend, the mother of the child, is not
permitted. However, this would be subject
to the result of possible mediation held
between them in such legal proceeding."

18. The respondent No.3, father of the
detenue moved C.M. Application No.
1A/14/2022 and C.M. Application No.
25/2022 with a prayer to recall the order
dated 14.12.2021 and 06.01.2022 and
further prayed that the custody of the minor
petitioner Devansh be ordered to be handed
over to his own father and the orders dated
14.12.2021
and
06.01.2022
be
recalled/reviewed or modified.

In the aforesaid application the
respondent No.3 has submitted that vide
order dated 06.01.2022 the minor child has
been handed over to the mother and the
visitation rights were granted to the father,
which allowed the father to meet the minor
884 INDIAN LAW REPORTS ALLAHABAD SERIES
child every Sunday from 10.00 a.m. to 5
p.m. at the residence of the mother.

In the aforesaid application the
respondent No.3 has submitted in terms of
the order dated 06.01.2022, the respondent
No.3 reached the petitioner's house at the
time appointed by this Hon'ble Court ie.,
10:00 am. Though the minor child was
present, he was surrounded by his mother,
mother's sister and the grandmother of the
child, leaving no opportunity for the child
to interact with the respondent No.3. The
atmosphere was far from normal and the
minor child was in no position to feel free
to interact with the father. The respondent
No.3 requested the minor petitioner's
mother, her sister and her mother to kindly
allow the respondent No.3 to interact with
the
child
without
the
child
being
intimidated as was being done but his
requests were not acceded to. In order to be
able to converse and interact with his minor
son, as specifically permitted by this
Hon'ble Court, the respondent No.3 had
taken a tablet (electronic device) with him,
through which he could connect with his
son and both converse with him as well as
see him on the video, which would not only
allow the strong bond which subsists
between the minor child and the father is
not eroded and the minor child has the
advantage of shared parenting which has
since been acknowledged as the best mode
of parenting in the world.

The respondent No.3 has further
submitted that every effort is being made
by the mother to wash the mind of the child
against the respondent No.3 and by not
allowing the minor child to meet the
respondent No.3, the petitioner No.2 is
endeavouring to detach the child from the
respondent No.3 even at the cost of wilful
violation of the orders passed by this
Hon'ble Court and against the welfare
principle.

The petitioner No.2 has wilfully
neglected to comply with the orders passed
by this Hon'ble Court as a repercussion
whereof serious detriment has been caused
in the up bring of the minor child Devansh
and his welfare is in jeopardy.

Learned
counsel
for
the
respondent No.3 has further submitted that
respondent No.3 is a practising spine
surgeon in Dhanbad, with his own clinic
and established practice. He travels to
Lucknow on weekends taking leave from
his practice, covering a distance of over
800 kms via multiple modes including
overnight train and road journey to meet his
son every Sunday. His visitation from
10.00 a.m. to 5 p.m. every Sunday which
currently takes place at the residence of the
petitioner No.2, is always frustated by the
petitioner No.2 and her family members
and order dated 06.01.2022 passed by this
Hon'ble Court is not being complied with
by them. The minor child is being deprived
of the love an affections of his own father,
and the father is not able to interact with his
son meaningfully. He further submitted that
to be close to his son and facilitate a
meaningful interation, the father has taken
on rent premises barely 500 meter from the
house of his wife (petitioner), situated at C137, Sector J, Aliganj, Lucknow. The
premises is a two bedroom park facing
house, furnished, safe and comfortable with
ample space for the child to be with the
father and spend quality time with him.
During this period if the mother of child
wants to come and stay with the child and
the father (respondent No.3), the father
would have absolutely no objection. The
child be permitted to interact with his
cousins and grandparents. The father may
4 All. Master Devansh Agarwal & Anr. Vs. State of U.P. & Ors.
885
take the child for outings and bring him out
of his shell by taking him around in the
neighbourhood
park,
science
centre,
restaurants, mall sports activities etc.

Learned
counsel
for
the
respondent No.3 has further submitted that
a good Hotel may also be serve as the
neutral venue for visitation from 10 a.m. to
5 p.m. every Sunday. Hotel Clarks Awadh
is situated about 3 km from house of the
mother. From Monday to Friday the father
may be allowed to contact his son on video
calls on two days at a time to be fixed by
this Hon'ble Court. The calls should be
meaningful and last atleast 10 to 15
minutes and not disconnected after 30
second or so. The telephone number may
be indicated in the order and must be kept
on at all time.

19. The petitioner's next friend,
mother of the detenue moved C.M.
Application No. 15/2022 for modification
of the order dated 06.01.2022 with the
following relief (s):

(a) In Clause-I in the order dated
06.01.2022 of this Hon'ble Court the
visitation right of the Father (opposite
party No.3) on every weekend (Sunday) be
reduced to one Sunday every month and if
for any unforeseen reasons the Sunday
(One) is not feasible then alternate day i.e.
next day but the visitation be of opposite
party No.3 with the minor petitioner be
reduced to once in a month.

(b) In Clause-IV in the order
dated 06.01.2022 of this Hon'ble Court
be not construed to be from 10.00 a.m. to
5.00 p.m. continuously i.e. 7 hours
meeting for opposite party No.3, it should
be 1 hour or 1.5 hours or 2 hours i.e. an
ideal meeting.

(c) In furtherance to the direction
of this Court in its order dated 06.01.2022
a further rider be made on opposite party
No.3 not to give/show the video clip to
minor petitioner and no Junk Food/Drinks
like Frooti, Cold Drink, Ice Cream be
restricted.

(d) In furtherance to the direction
of this Court in its order dated 06.01.2022
a further rider be imposed on Opposite
Party No.3 while visiting to minor
petitioner, he should keep Laptop, Mobile
to put outside the house in the safe custody
of guards of the house.

(e) In furtherance to the direction
of this Court in its order dated 06.01.2022
a further rider/restrictions be imposed on
Opposite Party No.3 while visiting to minor
petitioner, he should keep Laptop, Mobile
to put outside the house in the safe custody
of guards of the house."

20.

Learned
counsel
for
the
petitioners submits that the respondent
No.3 on meetings days continuously shown
the video games and feeding Junk Fook
like Cakes, Chips, Frooti, Toffee, Lollipop
and James all the time during meeting,
resulting
which
twice
the
minor
petitioner/detenue suffered from diarrhoea
after eating lollipops. He further submits
that the visitation on every Sunday by the
respondent No.3 has made the distraction
of the minor petitioner/detenue and had
adversely affected mental and physical
growth
and
development
of
minor
petitioner/detenue. The behaviour of the
respondent No.3 during meeting is hugging
and clutching the minor petitioner for 3-4
hours continuously by showing video game
and
does
not
allow
the
minor
petitioner/detenue to sleep and keep him
awake and after over of meeting the minor
886 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner/detenue feels adversely and looks
abstracted for days to come.

21.

Learned
counsel
for
the
petitioners
further
submits
that
the
visitation rights/meeting of respondent
No.3 with the minor petitioner/detenue is
not fruitful because of the defective attitude
of the respondent No.3 regarding the
welfare of minor petitioner/detenue should
have been focused by the respondent No.3
and not to becoming a trouble for the
healing development of minor petitioner.

22.

Learned
Counsel
for
the
petitioners submits that the petitioner's next
friend/ mother of the detenue is well
educated having M.B.A. in Finance and
Human Resources she is physically ,
financially and emotionally very much
eligible for taking care of child in every
way. It is further argued that the cost and
expenses of delivery of the child were
incurred by her She has a constant source
of earning accrued from the interest over
her savings in Bank. It is further argued
that the mother was in a reputed job of
teaching as an Assistant Professor in BBD
University at Lucknow but since birth of
child, only for the purpose of looking after
him and care she left that job. Thus, she is
mentally and financially capable to keep
the detenue/ her son-Master Devansh
Agarwal.

23.