# Smt. Meenakshi & Anr v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-02
- **Case number:** Habeas Corpus Writ Petition No. 861 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-meenakshi-anr-v-state-of-u-p-ors-45593
- **Pages:** 12

## Headnote

G.A., Sri Amar Nath, Sri Shravana Kumar
Yadav, Sri P.N. Tiwari
Minor in custody of father-mother claiming itthough father's custody cannot be termed
illegal-but interest and welfare of minor is
important over parents' rights-Here mother is
far better educated than father-minor's interest
is better secured with mother-custody granted
to mother-Petition allowed.

Held, There is little doubt about the issue that
though both the mother and the father are
natural guardians, a writ of habeas corpus may
issue, because the Court can still determine the
legality of the custody with reference to the
question of the minor's welfare. As it is said, it is
not so much about the rights of the parents to
an exclusive custody of the child, as it is about
the child's welfare. It is, therefore, lawful for the
Court to exercise its jurisdiction and issue a writ
of habeas corpus to place the child in a custody,
where his/ her welfare appears to the Court to
have the best prospects. This petition is,
therefore, held to be maintainable. (Para18)

Petition allowed. (E-9)

List of Cases cited:-

## Text

_Characters 0–39,841 of 42,238. This is a partial read: ask again with offset=39841 for what follows._

410 INDIAN LAW REPORTS ALLAHABAD SERIES
detained him against his will or wishes. It has
come out clearly in the recorded statement of
Badri Yadav that no one has threatened him or
put him under any kind of duress. The detenu
has also said that Smt. Shanti Devi has not
taken his thumb impression on any paper.
Going by the aforesaid stand of the detenu
evident from his statement recorded by the
learned Chief Judicial Magistrate, Varanasi, it is
evident that the detenu is not at all in any kind
of illegal confinement by or at the instance of
Smt. Shanti Devi. He is staying with Shanti
Devi of his own accord.

5. In the circumstances, the rule nisi
issued by this Court cannot be made
absolute.
The
Rule
is
discharged.
Accordingly, this petition is dismissed.

6. This Court has carefully perused
proceedings of the commission, including the
minutes.
This
Court
must
record
its
appreciation for a very carefully done
commission by Mr. Surendra Pratap Yadav, the
learned Chief Judicial Magistrate, Varanasi.
----------
(2020)12ILR A410
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

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

Habeas Corpus Writ Petition No. 861 of 2019

Smt. Meenakshi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sushil Kumar Sharma, Sri Mohit Kumar

Counsel for the Respondents:
G.A., Sri Amar Nath, Sri Shravana Kumar
Yadav, Sri P.N. Tiwari
Minor in custody of father-mother claiming itthough father's custody cannot be termed
illegal-but interest and welfare of minor is
important over parents' rights-Here mother is
far better educated than father-minor's interest
is better secured with mother-custody granted
to mother-Petition allowed.

Held, There is little doubt about the issue that
though both the mother and the father are
natural guardians, a writ of habeas corpus may
issue, because the Court can still determine the
legality of the custody with reference to the
question of the minor's welfare. As it is said, it is
not so much about the rights of the parents to
an exclusive custody of the child, as it is about
the child's welfare. It is, therefore, lawful for the
Court to exercise its jurisdiction and issue a writ
of habeas corpus to place the child in a custody,
where his/ her welfare appears to the Court to
have the best prospects. This petition is,
therefore, held to be maintainable. (Para18)

Petition allowed. (E-9)

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

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

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

7. Tejaswini Gaud & ors.Vs Shekhar Jagdish
Prasad Tewari & 15 ors., (2019) 7 SCC 42

8. Master Atharva (Minor& anr. Vs St. of U.P. & 7
ors., decided on 19.10.2020

(Delivered by Hon'ble J.J. Munir, J.)
12 All. Smt. Meenakshi & Anr. Vs. State of U.P. & Ors.
411

1. A young child ought to be and has
a right to be in the care and company of his
parents. The parents together are a young
child's world. It is together that they groom
him into his youth. It is together that they
ensure the over all development of his
personality in its myriad facets. But
marriage, like life, some time takes an
unpleasant turn, where the spouses could
turn into an estranged couple. It is here that
a young child faces one of the biggest
tragedies of his life. His/ her world
comprising the two parents comes apart. It
is in this situation that the Court, in the
exercise of its parens patriae jurisdiction,
called upon to perform the onerous task of
keeping the young child's world, as much
together as can be. The better the Court can
bring this about, it could be some
recompense to a child's devastated world.
This petition for a writ of habeas corpus,
instituted by Master Anav's mother, the
first petitioner, asking the Court to liberate
the minor from his father's custody by
entrusting the minor into hers, is about a
young child's devastated world.

2. The facts giving rise to this cause
are these: Smt. Meenakshi, the first
petitioner and Ram Narayan, the ninth
respondent married according to Hindu
rites on 20.04.2014. The couple lived
together as man and wife for a period of
about four years. Meenakshi says that she
had
a
tumultuous
marriage.
In
her
husband's home, she stayed along with her
in-laws. During her stay with her husband,
she was tortured, both physically and
mentally, in connection with dowry that
was demanded. Meenakshi had lost her
father some fifteen years ago. It was her
mother, who had settled this marriage for
her. Her mother had given in dowry all
necessaries for a household apart from Rs.5
lakhs in cash, besides ornaments. During
her stay at her husband's, Meenakshi came
to know, as she alleges, that her husband
had an amorous relationship with his sisterin-law (bhabhi) and another girl from the
village, to which she objected in vain. She
claims that this further accentuated her
torture by her husband and in-laws, forcing
her to abandon her marriage and go back to
her mother's home. She went back to her
mother on 04.06.2018. A son, named Anav,
was born of this rather short lived wedlock
of parties. He was born on 20.09.2016. For
the present, Anav is aged about 4 hours.

3. It is also claimed by Meenakshi
that after her initial exit from the
matrimonial home on 04.06.2018, she
attempted reproachment a number of times.
She went back to her husband's home, but
on each occasion found herself unwelcome.
There was a concerted effort to jettison the
from her matrimonial home by her husband
and the in-laws. The discord between
parties was mediated by kinsmen, which
resulted in what Meenakshi claims to be a
mutual divorce. It is a private settlement,
engrossed on a stamp paper, worth Rs.100/-
and notarized. It is a document dated
04.12.2018, executed at Panipat, Haryana.
Apart from parties, it is attested by
witnesses, who appear to be the mediators
or panchas of some kind.

4. This Court does not wish to
comment about the obvious effect in law of
this settlement dated 04.12.2018, which
Meenakshi believes to be a divorce by
mutual consent. In terms of this settlement,
the parties convenated to withdraw pending
cases and Meenakshi agreed to stay with
her mother.

5. It is claimed by Meenakshi that she
went back to her mother's home along with
her young son, Anav. After lapse of
412 INDIAN LAW REPORTS ALLAHABAD SERIES
sometime, matters took an unpleasant turn
for Meenakshi and her young son, Anav. It
is claimed that there was an unholy alliance
between Meenakshi's brother, Sunny and
her estranged husband, Ram Narayan with
the two making it common cause to oust
her minor son from her mother's home.
This came about between Sunny and Ram
Narayan for very different reasons of their
own. While Ram Narayan wanted his son
to stay with him, Sunny who is arrayed as
the sixth respondent to this petition, wanted
the child out of his mother's home, where
Meenakshi stays, because he thought
Meenakshi may claim a share for her son in
her ancestral property. It is claimed that
Ram
Narayan,
in
connivance
with
Meenakshi's brother, Sunny, besides Vinod
and Robin, both natives of Village Toli,
threatened Meenakshi that they would not
permit her son to live with her. It is
asserted that Sunny, Vinod and Robin,
respondent nos. 6, 7 and 8, in that order,
beat up Meenakshi and her mother, telling
her that she would not be given a penny of
the inheritance. In furtherance of this
common interest between Ram Narayan
and Sunny, in the evening of 06.04.2019,
respondent nos. 6, 7 and 8, beat up
Meenakshi. It is also claimed that they
opened fire, but Meenakshi's mother came
to her rescue. Respondent nos. 6, 7 and 8
beat up Meenakshi's mother also and
snatched away her son, locking up
Meenakshi and her mother inside a room.
Respondent nos.6 to 8, in this manner,
kidnapped the minor, Anav and handed him
over
to
Meenakshi's
husband,
Ram
Narayan.

6. The fact that the child had been
handed over to his father, was disclosed to
Meenakshi by respondent nos.6 to 8. It is
also asserted that Meenakshi approached
the Police Station Nakud, but the police did
not register an FIR. Meenakshi lodged her
complaint regarding the kidnapping of her
son and also about the incident of being
beaten up and subjected to a life threat, to
the Inspector General of Police, the Deputy
Inspector General of Police, the District
Magistrates of Saharanpur and Shamli, the
Senior
Superintendent
of
Police,
Saharanpur and Station House Officer,
Police Station Nakud, District Saharanpur.
On
13.04.2019,
Meenakshi
sent
her
complaint as aforesaid by registered post. A
copy of her complaint along with postal
receipts of dispatch to two of the
Authorities above detailed, are on record.

7. It is Meenakshi's further case that
respondent nos. 6 to 9 promised that Anav,
the minor, would be returned to her care
and custody by 1st June, 2019, if she
relinquishes her claim to her family
property and undertakes to leave her native
village, along with her mother. It was also
put as a condition that she withdraws her
pending case in the Court of A.C.J.M.-II,
Saharanpur. Surprisingly, there is a written
settlement dated 30.05.2019 made before
the Station House Officer, Police Station
Nakud, Saharanpur, indicating that there
was some issue concerning her minor son,
Anav between Smt. Meenakshi on the one
hand and respondent no.6, her brother,
Sunny, Robin and Vinod on the other,
regarding
which
she
had
lodged
a
complaint. It is said in the settlement that
some respectable persons of the Village
and relatives had brought about an
amicable settlement between parties, in
terms whereof, Meenakshi would be
handed back the custody of her minor son
on 01.06.2019. It is said that the settlement
between parties may be accepted. It is
made out that this settlement was never
honoured and Meenakshi was not given
back the custody of her minor son, who
12 All. Smt. Meenakshi & Anr. Vs. State of U.P. & Ors.
413
was allegedly kidnapped. Meenakshi then
pressed the police to lodge her FIR,
regarding which she also approached
higher police officers, but to no avail.

8. In the circumstances, an application
under Section 156(3) Cr.P.C. was instituted
by Meenakshi before the Additional Chief
Judicial
Magistrate-II,
Saharanpur,
requesting that a case be ordered to be
registered against respondent nos. 6 to 9 for
offences punishable under Sections 364,
307, 343, 323 & 120-B IPC. This
Application has been numbered on the file
of the Magistrate concerned as Case no.123
of 2019 initially, and re-numbered as Case
no.1325 of 2019. The Magistrate by his
order dated 13.05.2019 has treated the said
application, under Section 156(3) Cr.P.C.
as a complaint and order it to proceed. A
copy of the Magistrates's order dated
13.05.2019 is on record.

9. It is further made out on behalf of
the first petitioner that the minor has risk to
his life at the hands of respondent nos. 6, 7
and 8 on the one hand because the three of
them are after the ancestral property,
whereas the safety and welfare of the child
is in jeopardy with the father, because he is
into an amorous relationship with his sisterin-law, and at the same time, with another
woman from the village. It was also
pointed out that the fact that the father got
his own son kidnapped, in connivance with
the first petitioner's brother and the other
two respondents, tells much on his conduct,
vis-a-vis the child's welfare.

10. It is to be noticed here that on
behalf of the husband, Ram Narayan, an
affidavit dated 02.01.2020 has been filed,
styled as a supplementary affidavit. It
speaks about the same compromise dated
04.12.2018, upon which the petitioner has
relied as proof of a divorce by mutual
consent between parties. A closer perusal
of this settlement/ compromise shows that
it embodies terms about withdrawal of
pending litigation between parties and
records the fact that the wife has received
from the husband, in settlement of all her
claims, a lump sum of Rs.15,30,000/-. It is
also a term of this settlement that the
parties' minor son, Anav would live with
his
mother.
It
is
shown
in
the
supplementary affidavit filed on behalf of
the husband that a petition for divorce,
under Section 13(1) of the Hindu Marriage
Act, 1955 filed on behalf of the wife before
the Additional District Judge, Panipat has
been dismissed as withdrawn, and a copy
of the order of the learned Additional
District Judge, dated 04.12.2018 is on
record, annexed to the supplementary
affidavit under reference. Along with the
affidavit also, annexed is a copy of the
order of the Judicial Magistrate at Panipat,
dismissing the wife's application for
maintenance, under Section 125 Cr.P.C., on
the basis of her statement recorded by the
Magistrate. The Magistrate's order is also
dated 04.12.2018.

11. A joint counter affidavit has been
filed on behalf of respondent nos.6, 7 and
8, where all allegations about kidnapping of
Meekashi's son have been denied. It has
been made out that Meekashi's son is not in
the custody of respondent nos.6, 7 and 8,
and further that they were not parties to the
settlement recorded between the husband
and wife. There is an averment that these
respondents never told the first petitioner
(incorrectly mentioned as deponent) that
her child would be returned to her by
01.06.2019, if she forsakes her claim in the
ancestral property of respondent no.6 and
herself. It has also been asserted in
paragraph 16 that the minor is in his
414 INDIAN LAW REPORTS ALLAHABAD SERIES
father's custody and, therefore, this petition
for a writ of habeas corpus is not
maintainable. The first petitioner ought to
proceed under the Guardians and Wards
Act, 1890 (for short, 'the Act of 1890').

12. This Court has given a thoughtful
consideration to the rival submissions and
perused the record. In addition, the Court
has interacted with the minor's mother,
Smt.
Meenakshi.
The
endeavour,
to
ascertain the minor's wish in this case, does
not appear to be very relevant because the
minor is a boy of four years, and in the
assessment of this Court, too young to
express his intelligent preference about his
choice for a guardian.

13. Before the Court determines the
cause on merits, it is necessary to dispose
of the plea, taken in the affidavit filed on
behalf of respondent nos.6, 7 and 8, to the
effect that the mother ought to ask for the
minor's custody, by moving the Court of
competent jurisdiction, under the Act of
1890, and not through a writ of habeas
corpus. This plea, though figures in the
affidavit filed on behalf of respondent
nos.6, 7 and 8, has been pressed before the
Court on behalf of respondent no.9, Ram
Narayan, the minor's father.

14. It is argued by Mr. P.N. Tiwari
that the first petitioner and respondent no.9,
being both natural guardians under the
Hindu Minority and Guardianship Act,
1956 (for short, 'the Act of 1956'), the
minor's custody with the father cannot be
termed unlawful. It is then urged that the
minor's custody with father, being not
unlawful, it is not a case, where a writ in
the nature of habeas corpus ought to issue.
It is a dispute between the parents for the
child's custody, pure and simple, that ought
to be determined, under the Act of 1890 by
the Court of competent jurisdiction. This
question,
whether
a
custody
dispute
between a parent and some other kindred or
between the two parents, is by now fairly
well settled. This question came up for
consideration before the Supreme Court in
Syed Saleemuddin vs. Dr. Rukhsana and
Others, (2001) 5 SCC 247. It was held in
Syed Saleemuddin (supra):

"11. From the principles laid
down in the aforementioned cases it is clear
that in an application seeking a writ of
Habeas Corpus for custody of minor
children the principal consideration for the
Court is to ascertain whether the custody of
the children can be said to be unlawful or
illegal and whether the welfare of the
children requires that present custody
should be changed and the children should
be left in care and custody of somebody
else. The principle is well settled that in a
matter of custody of a child the welfare of
the child is of paramount consideration of
the Court. Unfortunately, the Judgment of
the High Court does not show that the
Court has paid any attention to these
important and relevant questions. The High
Court has not considered whether the
custody of the children with their father
can, in the facts and circumstances, be said
to be unlawful. The Court has also not
adverted to the question whether for the
welfare of the children they should be taken
out of the custody of their father and left in
the care of their mother. However, it is not
necessary for us to consider this question
further in view of the fair concession made
by Shri M.N. Rao that the appellant has no
objection if the children remain in the
custody of the mother with the right of the
father to visit them as noted in the
judgment of the High Court, till the Family
Court disposes of the petition filed by the
appellant for custody of his children."
12 All. Smt. Meenakshi & Anr. Vs. State of U.P. & Ors.
415

15. The question again came up
before the Supreme Court in Nithya
Anand Raghavan vs. State (NCT of
Delhi) and Another, (2017) 8 SCC 454. In
Nithya Anand Raghavan (supra), it was
held:

"44. The present appeal emanates
from a petition seeking a writ of habeas
corpus for the production and custody of a
minor child. This Court in Kanu Sanyal v.
District
Magistrate,
Darjeeling
[Kanu
Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] ,
has held that habeas corpus was essentially
a procedural writ dealing with machinery
of justice. The object underlying the writ
was to secure the release of a person who is
illegally deprived of his liberty. The writ of
habeas corpus is a command addressed to
the person who is alleged to have another
in unlawful custody, requiring him to
produce the body of such person before the
court. On production of the person before
the court, the circumstances in which the
custody of the person concerned has been
detained can be inquired into by the court
and upon due inquiry into the alleged
unlawful
restraint
pass
appropriate
direction as may be deemed just and
proper.
The
High
Court
in
such
proceedings
conducts
an
inquiry
for
immediate determination of the right of the
person's freedom and his release when the
detention is found to be unlawful.

45. In a petition for issuance of a
writ of habeas corpus in relation to the
custody of a minor child, this Court in
Sayed Saleemuddin v. Rukhsana [Sayed
Saleemuddin v. Rukhsana, (2001) 5 SCC
247 : 2001 SCC (Cri) 841] , has held that
the principal duty of the court is to
ascertain whether the custody of child is
unlawful or illegal and whether the welfare
of the child requires that his present
custody should be changed and the child be
handed over to the care and custody of any
other
person.
While
doing
so,
the
paramount consideration must be about the
welfare of the child. In Elizabeth [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13] , it is held
that in such cases the matter must be
decided not by reference to the legal rights
of the parties but on the sole and
predominant criterion of what would best
serve the interests and welfare of the minor.
The role of the High Court in examining
the cases of custody of a minor is on the
touchstone of principle of parens patriae
jurisdiction, as the minor is within the
jurisdiction
of
the
Court
[see
Paul
Mohinder Gahun v. State (NCT of Delhi)
[Paul Mohinder Gahun v. State (NCT of
Delhi), 2004 SCC OnLine Del 699 : (2004)
113 DLT 823] relied upon by the
appellant]. It is not necessary to multiply
the authorities on this proposition.

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
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
416 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. A milestone decision, on the
issue,
is
the
relatively
recent
pronouncement of their Lordships of the
Supreme Court in Tejaswini Gaud and
Others v. Shekhar Jagdish Prasad
Tewari and Others, (2019) 7 SCC 42. In
Tejaswini Gaud, it was held:

"19. Habeas corpus proceedings
is not to justify or examine the legality of
the custody. Habeas corpus proceedings is
a medium through which the custody of the
child is addressed to the discretion of the
Court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the
writ is issued where in the circumstances of
the
particular
case,
ordinary
remedy
provided by the law is either not available
or is ineffective; otherwise a writ will not
be issued. In child custody matters, the
power of the High Court in granting the
writ is qualified only in cases where the
detention of a minor by a person who is not
entitled to his legal custody. In view of the
pronouncement on the issue in question by
the Supreme Court and the High Courts, in
our view, in child custody matters, the writ
of habeas corpus is maintainable where it is
proved that the detention of a minor child
by a parent or others was illegal and
without any authority of law.
20. In child custody matters, the ordinary
remedy lies only under the Hindu Minority
and Guardianship Act or the Guardians and
Wards Act as the case may be. In cases
arising out of the proceedings under the
Guardians and Wards Act, the jurisdiction
of the court is determined by whether the
minor ordinarily resides within the area on
which the court exercises such jurisdiction.
There are significant differences between
the enquiry under the Guardians and Wards
Act and the exercise of powers by a writ
court which is summary in nature. What is
important is the welfare of the child. In the
writ court, rights are determined only on
the basis of affidavits. Where the court is of
the view that a detailed enquiry is required,
the court may decline to exercise the
extraordinary jurisdiction and direct the
parties to approach the civil court. It is only
in exceptional cases, the rights of the
parties to the custody of the minor will be
determined in exercise of extraordinary
jurisdiction on a petition for habeas
corpus."

17. The Supreme Court, still later,
considered the question in Yashita Sahu
vs. State of Rajasthan and Others, (2020)
3 SCC 67, where it was held :
12 All. Smt. Meenakshi & Anr. Vs. State of U.P. & Ors.
417

"10. It is too late in the day to
urge that a writ of habeas corpus is not
maintainable if the child is in the custody
of another parent. The law in this regard
has developed a lot over a period of time
but now it is a settled position that the court
can
invoke
its
extraordinary
wirt
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw v.
Arvand
M.
Dinshaw,
Nithya
Anand
Raghavan v. State (NCT of Delhi) and
Lahari Sakhamuri v. Sobhan Kodali among
others. In all these cases, the writ petitions
were entertained. Therefore, we reject the
contention of the appellant wife that the
writ petition before the High Court of
Rajasthan was not maintainable."

18. There is little doubt about the
issue that though both the mother and the
father are natural guardians, a writ of
habeas corpus may issue, because the Court
can still determine the legality of the
custody with reference to the question of
the minor's welfare. As it is said, it is not so
much about the rights of the parents to an
exclusive custody of the child, as it is about
the child's welfare. It is, therefore, lawful
for the Court to exercise its jurisdiction and
issue a writ of habeas corpus to place the
child in a custody, where his/ her welfare
appears to the Court to have the best
prospects. This petition is, therefore, held
to be maintainable.

19. It must be remarked here that the
mother
has
come
up
with
serious
allegations about her son being kidnapped
by force, by none else than her brother and
being delivered into her husband's custody.
In
their
counter
affidavit,
filed
by
respondent nos. 6 to 8, that allegation has
been vociferously denied. Meenakshi's
attempts to put the process of criminal law
in motion with regard to her allegations
about the minor's kidnapping have failed
with the police, and the Judicial Magistrate
too, has declined to order the police to
register and investigate the case; the
Magistrate has directed the matter to
proceed as a complaint case. Meenakshi's
brother and husband have both denied
allegations
about
the
minor
being
kidnapped. So far as this Court is
concerned, there is no tangible evidence
about
the
minor's
alleged
forcible
removable from the mother's custody. This
Court is not inclined to probe the matter
further, bearing in mind the relationship
between parties, and the minor's welfare.

20. Now, the minor is a young child
of tender years. He is just four years old.
The Court did not find him capable of
expressing
an
intelligent
preference
between his parents, in whose custody, he
would mostly like to be.

21. The Court has spoken to the
minor's father, Ram Narayan. He says that
he is a farmer. His annual income is
Rs.1.50 lakhs. He also says that he does not
pay income tax. He has informed the Court
that
he
has
passed
his
Class-XII
examination. Ram Narayan is part of a
family where he has his father and mother,
besides his elder brother. His elder brother
is married and has a son. The minor, Anav
is reported to be receiving his education at
a certain Adarsh Vidya Public School,
Village Sahpat, Tehsil Kairana, District
Shamli. The School is located in the
village, where Ram Narayan lives. The
village does have a hospital. The village
has a population of about 2000 - 2200
residents.

22. The mother, on the other hand,
says that she is a Post Graduate in
Education. She has earned her M.A. Degree
418 INDIAN LAW REPORTS ALLAHABAD SERIES
in Education from the Chaudhary Charan
Singh University, Meerut. She stays in her
native village with her mother. Her village
is called Toli, located within Tehsil Nakud
in the district of Saharanpur. She informed
the Court that there are number of schools
in the vicinity, mostly in town Fandpuri.
The mother says that she does not work,
but has sufficient agricultural income. She
told the Court that their family own 40
bighas of land. She has asserted that she is
competent to raise her son well.

23. Amongst many things that this
Court noticed is the fact that the father is
not, particularly, interested in raising the
minor. Rather, the supplementary affidavit
dated 2nd January, 2020, that he has filed,
annexes a photostat copy of the settlement
between parties, dated 04.12.2018, already
spoken of. A perusal of the settlement
shows that apart from a covenant there, that
parties
have
emancipated
themselves
mutually of the marital bond and are free to
marry elsewhere, there is a specific term in
the settlement that the minor, Anav, then
aged two and a half years, would stay in his
mother's
custody.
This
discloses
the
disinclination of the father to bear a wholetime responsibility for the minor's custody
and the complementary inclination of the
mother to take that responsibility. This
settlement between parties, sworn before a
Notary Public and arrived at with the
mediation of some kind of a Panchayat,
may carry some terms that the law does not
acknowledge, but the settlement about the
minor's custody is certainly an enforceable
term. The father does not deny that the
settlement was recorded and the mother
also acknowledges it.

24. This Court also notices that a
divorce petition, brought by the mother and
proceeding under the Protection of Women
from Domestic Violence Act, 2005, besides
those for maintenance, under Section 125
Cr.P.C., were all withdrawn by the mother,
acting on this compromise. It is not so
much about the legal effect of this
compromise on the minor's custody that
this Court has to take it into consideration.
It is to judge the inclination of the two
parents, vis-a-vis the minor's custody that
this Court has looked into the settlement.

25. No doubt, the father and the
mother, are both natural guardians, if one
goes by Section 6(a) of the Act of 1956.
The mother's right and that of the father,
under Section 6(a) as to guardianship has
been considered at par by the Supreme
Court in Githa Hariharan (Ms) and
another vs. Reserve Bank of India and
another, (1999) 2 SCC 228. So far as
custody goes, as distinct from guardianship,
between the two natural guardians, the
mother is to be preferred by virtue of the
proviso to Section 6(a) of the Act of 1956,
in the case of a child below five years of
age.

26. What is important while deciding
the issue of custody between two natural
guardians, is where the minor's welfare
would be best secured. The statute indicates
a preference for the mother, so far as a
child below five years is concerned. But,
that legislative edict though a strong
indicator, is not to be construed as an
inflexible rule to be mechanically applied.
The question of a child's welfare is always
a matter for the Court's decision, based on
varied factors.

27. The statutes, like Section 17 of the
Act of 1890 or Section 13 of the Act of
1956, only indicates some of the relevant
parameters that the Court must be mindful
of while deciding the question of the
12 All. Smt. Meenakshi & Anr. Vs. State of U.P. & Ors.
419
minor's welfare. Every case has individual
features of its own, where the Court has to
think for itself, at a human level with all
experiences at its command, where the minor's
welfare would be best secured. No straitjacket
formula, as it is proverbially said, can be
devised or applied to decide the human problem
of a child's welfare. In this connection,
reference may be made to the decision of the
Supreme Court in Nil Ratan Kundu and
another vs. Abhijit Kundu, (2008) 9 SCC
413. It is held in Nil Ratan Kundu:

"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. In the same vain are the remarks
of the Supreme Court in Tejaswini Gaud
and others vs. Shekhar Jagdish Prasad
Tewari and others, (2019) 7 SCC 42. In
Tejaswini Gaud, it has been held by their
Lordships of the Supreme Court:

"35. The welfare of the child
has to be determined owing to the facts
and circumstances of each case and the
Court cannot take a pedantic approach.
In the present case, the first respondent has
neither abandoned the child nor has
deprived the child of a right to his love and
affection. The circumstances were such that
due to illness of the parents, the appellants
had to take care of the child for some time.
Merely because, the appellants being the
relatives took care of the child for some
time, they cannot retain the custody of the
child. It is not the case of the appellants
that the first respondent is unfit to take care
of the child except contending that he has
no female support to take care of the child.
The first respondent is fully recovered from
his illness and is now healthy and having
the support of his mother and is able to take
care of the child."
 (Emphasis by Court)

29. Generally speaking, however, the
custody of a minor child of tender years,
below the age of five years, ought to be
with the mother. There could be exceptions
to the Rule as the Court has indicated
above. Human affairs can never be
disposed of by a rubber stamp approach or
the application, virtually of mathematical
formulae. But, the general rule about
custody of a child, below the age of five
years, is not to be given a go-by. If the
mother is to be denied custody of a child,
below five years, something exceptional
derogating from the child's welfare is to be
shown.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

30. I had occasion to consider the
legal position in this regard in Master
Atharva (Minor) and another vs. State of
U.P.
And
7
others,
decided
on
19.10.2020. In Master Atharva (Minor),
it was held:

"9. A reading of the terms of the
proviso to Section 6 shows that quite apart
from the question of natural guardianship,
the custody of a minor, who has not
completed the age of five years, is to be
ordinarily with the mother. The only niche,
therefore, so far as the statue goes, is the
word "ordinary". The word "ordinary"
signifies that as a matter of rule, children
up to the age of five years are to be left
with their mothers, but there could be
exceptions as well. Those exceptions could
be where the mother is demonstrably
leading an immoral life or may have
remarried, where in her new home, the
child from her earlier alliance has no place,
or where the mother is convicted of a
heinous offence etc. In the present case, no
such circumstance has been indicated,
much less pleaded and proved so as to
place the mother in that exceptional
category where she may be deprived of the
custody of her young child, who is still well
below the age of five years.

10. It must also be remarked that
even after the child turns five, it is not that
the mother becomes disentitled. She still
would be the best person to tender a child
and groom him into an adult. In this
connection, reference may be made to the
decision of the Supreme Court in Roxann
Sharma vs. Arun Sharma, (2015) 8 SCC
318, where it has been held:

"13. 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 the
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 guardianship, and
then specifies that custody should be given
to the mother so long as the child is below
five years in age. We must immediately
clarify that this section or for that matter
any
other
provision
including
those
contained in the G and W Act, does not
disqualify the mother to custody of the
child even after the latter's crossing the age
of five years."

31. In the present case also, Ram
Narayan, the father has not come up with
any such case, where the mother may be
judged unsuitable to raise the minor. There
is nothing on record to show that her case
falls into that kind of an exceptional
category, where she may be deprived of the
minor's care and custody. To the contrary,
this Court finds that the mother is an
educated woman and a Post Graduate in
Education. She is far better educated than
the father. The welfare of the young child is
not dependent on material resources alone.
It requires a lot more. Literal and then
intellectual
guidance,
besides
moral
training are important facets of a child's
grooming. This Court finds that all these
would be better secured with the mother
than the father. So far as the financial
support is concerned, that in any case,
would be the father's responsibility and the
law would take care of it.

32. Quite apart, it must be assumed
that the parties have settled their monetary
12 All. Saliha Khan Vs. U.O.I. & Ors.
421
issues in terms of the settlement agreement
dated 04.12.2018. The mother has indicated
that she has the necessary wherewithal to
raise the minor. The mother, being found fit
to have the minor's custody, it cannot be the
best arrangement to secure the child's
welfare, or so to speak, repair his
devastated world. He must have his father's
company too, as much as can be, under the
circumstances. This Court must, therefore,
devise a suitable arrangement, where the
minor can meet his father in an atmosphere,
that is reassuring and palliative. The father
must, therefore, have sufficient visitation
while the minor stays with his mother.

33. In the result, this habeas corpus writ
petition succeeds and is allowed. It is ordered
that the minor, Anav, who is presently in the
custody of his father, Ram Narayan, shall be
delivered into the custody of his mother, Smt.
Meenakshi within three days of receipt of a
copy of this judgment.