# Smt. Sharada Devi & Anr v. Man Singh & Ors

- **Citation:** (2020) 12 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Habeas Corpus Writ Petition No. 370 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sharada-devi-anr-v-man-singh-ors-45584
- **Pages:** 11

## Headnote

A. Constitution of India- Article 226 - Writ of
habeas corpus - Custody dispute of minor
child
between
natural
guardians
-
Maintainability - In child custody matters,
writ of habeas corpus is maintainable where
it is proved that detention of minor child by
parent or others is illegal and without any
authority of law - court can invoke its
extraordinary writ jurisdiction under Art. 226
for the best interest of the child - Limitation
determination about custody made under
Art.226, is summary - before writ court,
rights are determined only on the basis of
affidavits therefore determination about the
entitlement to custody of a minor, made in
habeas corpus petition carries the status of a
tentative determination only - where decision
requires fine and intricate questions of fact to
be delved into, which in turn would require
an elaborate and careful sifting of evidence,
parties may be asked to approach Civil Court
of
competent
jurisdiction,
under
the
Guardians and Wards Act, 1890, to establish
a better right to custody (Para 13, 14, 24 )

B. Constitution of India - Article 226 -
Habeas corpus writ petition - Hindu
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Minority and Guardianship Act - Section 6, 13 -
Custody of minor child - Mother's remarriage
after father's death - Effect - remarriage of the
mother do not lead to an inference ipso facto
that the minor's welfare would not be secure in
mother's hands - no such principle that on a
mother's remarriage, neglect of her minor child
begotten of her first marriage is to be
presumed or inferred on a constructive basis -
 Even after remarriage mother still entitle to
custody of her child - grandmother, is not
entitled to the custody of the minor solely
because minor mother has remarried (Para 21)

Petitioner grand mother seeking custody of her
minor grand daughter from the custody of
minor's mother (i.e. from her daughter-in-law)
after death of son of petitioner - Court found
that the mother of child & her second husband
providing a congenial atmosphere to minor - No
circumstance of neglect cited, from which
conclusion may be drawn that the minor's
welfare is not best secured in the mother's
hands. - mother closer in her years to the minor
than the grandmother, therefore, better suited
to safeguard minor's welfare - minor appeared
to be comfortable with the mother's second
husband - Grandmother petition dismissed -
however grandparents granted right to meet &
interact with their grand daughter for three
days, twice a year. (Para 24, 25, 26)

Writ Petition dismissed. (E-5)

List of Cases cited: -

## Text

12 All. Smt. Sharada Devi & Anr. Vs. Man Singh & Ors.
375
Niketan/Child Care Home against his/her
wishes?

15. We, accordingly, formulate the
following questions to be decided by the
larger Bench:

(1) Whether a writ of habeas
corpus is maintainable against the judicial
order passed by the Magistrate or by the
Child Welfare Committee appointed under
Section 27 of the Act, sending the victim to
Women
Protection
Home/Nari
Niketan/Juvenile Home/Child Care Home
?;

(2) Whether detention of a corpus in
Women
Protection
Home/Nari
Niketan/Juvenile Home/Child Care Home
pursuant to an order (may be improper) can be
termed/viewed as an illegal detention ?; and

(3) Under the Scheme of the
Juvenile Justice (Care and Protection of
Children) Act, 2015, the welfare and safety
of child in need of care and protection is
the legal responsibility of the Board/Child
Welfare Committee and as such, the
proposition that even a minor cannot be
sent to Women Protection Home/Nari
Niketan/Juvenile Home/Child Care Home
against his/her wishes is legally valid or it
requires
a
modified
approach
in
consonance with the object of the Act ?

16. Let the matter be placed before
Hon'ble the Chief Justice, on administrative
side, for constituting a larger Bench.

17. However, it is clarified that
pendency of this Reference shall not come
in the way of the 'corpus' to avail other
remedies available to him/her under the law
questioning his/her detention.

18. We would like to acknowledge
and appreciate the efforts and assistance
rendered by Mr Shaghir Ahmad, learned
Senior Advocte, Amicus.
----------
(2020)12ILR A375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

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

Habeas Corpus Writ Petition No. 370 of 2020

Smt. Sharada Devi & Anr. ...Petitioners
Versus
Man Singh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anand Priya Singh

Counsel for the Respondents:
G.A.

A. Constitution of India- Article 226 - Writ of
habeas corpus - Custody dispute of minor
child
between
natural
guardians
-
Maintainability - In child custody matters,
writ of habeas corpus is maintainable where
it is proved that detention of minor child by
parent or others is illegal and without any
authority of law - court can invoke its
extraordinary writ jurisdiction under Art. 226
for the best interest of the child - Limitation
determination about custody made under
Art.226, is summary - before writ court,
rights are determined only on the basis of
affidavits therefore determination about the
entitlement to custody of a minor, made in
habeas corpus petition carries the status of a
tentative determination only - where decision
requires fine and intricate questions of fact to
be delved into, which in turn would require
an elaborate and careful sifting of evidence,
parties may be asked to approach Civil Court
of
competent
jurisdiction,
under
the
Guardians and Wards Act, 1890, to establish
a better right to custody (Para 13, 14, 24 )

B. Constitution of India - Article 226 -
Habeas corpus writ petition - Hindu
376 INDIAN LAW REPORTS ALLAHABAD SERIES
Minority and Guardianship Act - Section 6, 13 -
Custody of minor child - Mother's remarriage
after father's death - Effect - remarriage of the
mother do not lead to an inference ipso facto
that the minor's welfare would not be secure in
mother's hands - no such principle that on a
mother's remarriage, neglect of her minor child
begotten of her first marriage is to be
presumed or inferred on a constructive basis -
 Even after remarriage mother still entitle to
custody of her child - grandmother, is not
entitled to the custody of the minor solely
because minor mother has remarried (Para 21)

Petitioner grand mother seeking custody of her
minor grand daughter from the custody of
minor's mother (i.e. from her daughter-in-law)
after death of son of petitioner - Court found
that the mother of child & her second husband
providing a congenial atmosphere to minor - No
circumstance of neglect cited, from which
conclusion may be drawn that the minor's
welfare is not best secured in the mother's
hands. - mother closer in her years to the minor
than the grandmother, therefore, better suited
to safeguard minor's welfare - minor appeared
to be comfortable with the mother's second
husband - Grandmother petition dismissed -
however grandparents granted right to meet &
interact with their grand daughter for three
days, twice a year. (Para 24, 25, 26)

Writ Petition dismissed. (E-5)

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. Amit Beri & anr. Vs Smt. Sheetal Beri wife of
Amit Beri AIR 2003 All 78

6. Sudha Vs State rep. by Superintendent of
Police, Nagapattinam District & ors. 2015 SCC
OnLine Mad 11442
(Delivered by Hon'ble J.J. Munir, J.)

1. Smt. Sharada Devi, the first
petitioner
is
Km.
Shruti
Singh's
grandmother (father's mother). Km. Shruti
Singh has been arrayed as the second
petitioner and profiled as the detenue in this
habeas corpus writ petition.

2. Smt. Sharada Devi says that Km.
Shruti Singh, her minor grand-daughter and
the daughter of her deceased son, Balram
Singh is in the unlawful custody of her
mother, Smt. Paramsheela, respondent no.3
along with Man Singh, Smt. Ramwati Devi
and Sunil Patel, respondent nos.1, 2 and 4,
in that order.

3. Smt. Sharada Devi has petitioned
this Court praying that a writ, order or
direction in the nature of habeas corpus be
issued, ordering her minor grand daughter,
Km. Shruti Singh to be produced before the
Court, and upon production set at liberty in
the manner that her custody be delivered to
Smt. Sharada Devi.

4. The facts, in the background of
which this cause has arisen, shortly put, are
these: the late Balram Singh son of Ram
Sabad Singh and Smt. Paramsheela were
married on 02.02.2011, according to Hindu
rites. In due course, the couple were
blessed with a child, a baby girl, named
Km. Shruti Singh. She was born on
12.12.2012. Smt. Paramsheela lived with
her husband, the late Balram Singh in the
family home, where Smt. Sharada Devi,
Balram Singh's mother, the first petitioner,
also lived. It is acknowledged that Smt.
Paramsheela discharged all her obligations
as Balram Singh's wife. Balram Singh was
employed with the Indian Air Force as a
Corporal. He had come home on leave. On
21.02.2015, he became the victim of a road
12 All. Smt. Sharada Devi & Anr. Vs. Man Singh & Ors.
377
accident and passed away. It appears that
after Balram Singh's death, Paramsheela,
his widow moved back to her father's place
along with the parties' minor daughter, Km.
Shruti Singh. She appears to have severed
relations with her matrimonial home.

5. After her husband's death, Smt.
Paramsheela moved on in life and married
Sunil Patel son of Ramjeet Patel, a native of
Village Harhahua, Post Office Manikpur,
District Mau. Sunil Patel is the fourth
respondent here. Smt. Paramsheela and Sunil
Patel have been blessed with a son on
26.08.2018. There is some grievance made by
Smt. Sharada Devi that the Indian Air Force
paid all the post retiral benefits of the late
Corporal Balram Singh to Smt. Paramsheela,
though she had remarried. It is also indicated
that Smt. Paramsheela, being paid all the post
retiral benefits of her deceased husband, Balram
Singh, does not take good care of the minor,
Km. Shruti Singh, employing those funds. It is
claimed that Smt. Paramsheela, her husband
Sunil Patel and their son are a family. She has,
thus, become part of a new family, where Km.
Shruti Singh has no place. It is urged that
respondent nos.1 and 2 are Smt. Paramsheela's
father and mother, who stay with her at her
matrimonial home. Smt. Paramsheela is short
of necessary resources to provide the required
nutrition, lodging and education to the minor.
Smt. Sharada Devi, being Km. Shruti Singh's
grandmother, is entitled to the custody of the
minor, after her mother has remarried.

6. It is in the background of these
facts and cause of action that the first
petitioner, Smt. Sharada Devi has asked
this Court to hold the mother's custody for
Km. Shruti Singh unlawful and deliver the
minor into the first petitioner's custody.

7. Heard Mr. Anand Priya Singh,
learned Counsel for the petitioners, Mr.
Sanjay
Srivastava,
learned
Counsel
appearing on behalf of respondent nos.3
and 4 and Mr. Jhamman Ram, learned
A.G.A. appearing on behalf of respondents
nos.5, 6 and 7.

8. This Court issued a rule nisi on
23.09.2020 ordering the minor, Km. Shruti
Singh to be produced before the Court on
08.10.2020. In compliance with the rule
nisi, the minor, Km. Shruti Singh has been
produced, accompanied by her mother,
Smt. Paramsheela. This Court interacted
with the minor as well as her mother in
order to gauge, within the scope of these
summary proceedings, if the minor's
welfare was best secured in the hands of
her mother. The Court will advert to the
outcome of that enterprise a little later in
this judgment.

9. Mr. Sanjay Srivastava, learned
Counsel appearing on behalf of respondent
nos.3 and 4 and Sri Jhamman Ram, learned
A.G.A. raised a preliminary objection
about the maintainability of this petition. It
was urged by them that the mother being
the minor's natural guardian, the minor's
custody with her cannot be termed
unlawful. Once the custody, where the
minor is placed, is not unlawful, a writ of
habeas corpus cannot issue. It is the learned
Counsel's submission that what this petition
discloses is a pure custody dispute, where
the grandmother on the paternal side asks
for the minor's custody, because she says
that the mother has lost that right, owing to
her remarriage. A dispute of this kind
cannot be remedied by moving this Court
through a petition for a writ of habeas
corpus.
It
is
the
learned
Counsel's
contention that the first petitioner's remedy
is to approach the Court of competent
jurisdiction under the Guardians and Wards
Act, 1890 and establish her right to
378 INDIAN LAW REPORTS ALLAHABAD SERIES
custody, superior to that of the mother. This
petition for a writ of habeas corpus, in the
submission of the learned Counsel for the
respondents, is not maintainable.

10. Mr. Anand Priya Singh, learned
Counsel for the petitioner on the other hand
submits that by now it has come to be well
settled that a petition for a writ of habeas
corpus is maintainable to decide custody
disputes, even between parents, if it can be
shown that the minor's custody with one
party is unlawful on the touchstone of the
child's welfare.

11. The objection raised by the
learned
Counsel
appearing
for
the
respondents has engaged the attention of
the Supreme Court in Syed Saleemuddin
v. Dr. Rukhsana and Ors., (2001) 5 SCC
247. In Syed Saleemuddin, it has been
held:

"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. The question has also been
considered by the Supreme Court in Nithya
Anand Raghavan vs. State (NCT of
Delhi) and another, (2017) 8 SCC 454. In
Nithya Anand Raghavan, 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
12 All. Smt. Sharada Devi & Anr. Vs. Man Singh & Ors.
379
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
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."

13.

This
question
about
the
maintainability of a petition for a writ of
habeas corpus with a custody dispute as the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of action, more recently came up for
consideration before the Supreme Court in
Tejaswini Gaud and others vs. Shekhar
Jagdish Prasad Tewari and others,
(2019) 7 SCC 42. In Tejaswini Gaud,
their Lordships examined the question
elaborately and 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.

21. In the present case, the
appellants are the sisters and brother of the
mother Zelam who do not have any
authority of law to have the custody of the
minor child. Whereas as per Section 6 of
the Hindu Minority and Guardianship Act,
the first respondent father is a natural
guardian of the minor child and is having
the legal right to claim the custody of the
child. The entitlement of father to the
custody of child is not disputed and the
child being a minor aged 11⁄2 years cannot
express its intelligent preferences. Hence,
in our considered view, in the facts and
circumstances of this case, the father, being
the natural guardian, was justified in
invoking the extraordinary remedy seeking
custody of the child under Article 226 of
the Constitution of India."

14. Once again, the issue arose before
the Supreme Court in Yashita Sahu vs.
State of Rajasthan and others, (2020) 3
SCC 67. It was held in Yashita Sahu:

"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
writ
jurisdiction for the best interest of the child.
This has been done in Elizabeth Dinshaw v.
12 All. Smt. Sharada Devi & Anr. Vs. Man Singh & Ors.
381
Arvand M. Dinshaw [Elizabeth Dinshaw v.
Arvand M. Dinshaw, (1987) 1 SCC 42 :
1987 SCC (Cri) 13], Nithya Anand
Raghavan v. State (NCT of Delhi) [Nithya
Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454 : (2017) 4 SCC (Civ)
104] and Lahari Sakhamuri v. Sobhan
Kodali [Lahari Sakhamuri v. Sobhan
Kodali, (2019) 7 SCC 311 : (2019) 3 SCC
(Civ) 590] 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."

15. The way the law about the
maintainability of a petition for a writ of
habeas corpus to decide custody disputes
has evolved, in the opinion of this Court it
can no longer be said for a blanket
proposition that a custody dispute between
natural guardians is beyond the writ's
scope. It is not that, that in every matter
where the custody of a minor with a natural
guardian is questioned on the basis of a lost
entitlement or a superior right founded on
better welfare for the minor, the parties are
to be asked to approach the Court of
competent jurisdiction under the Guardians
and the Wards Act. The question about the
welfare of the minor can equally be
examined by this Court in the exercise of
its jurisdiction to issue a writ of habeas
corpus, as by the Court of competent
jurisdiction under the Guardians and Wards
Act. The only limitation appears to be that
where the decision requires fine and
intricate questions of fact to be delved into,
which in turn would require an elaborate
and careful sifting of evidence, the parties
may be asked to approach the Civil Court.
Also generally, the determination about the
entitlement to custody of a minor, made in
the exercise of our jurisdiction to issue a
writ of habeas corpus, carries the status of a
tentative determination. Invariably, the parties
ought to be left free, irrespective of the
determination made here to suit their rights to
a minor's custody finally before the Court
under the Guardians and Wards Act.

16. This petition in the totality of
circumstances and the law applicable is,
therefore, held maintainable.

17. The Court may now proceed to
consider the merits of the parties' claim.

18. Under Section 6(a) of the Hindu
Minority and Guardianship Act, 1956, the
mother is the minor's natural guardian after
the father. The issue, whether the mother
can claim to be the natural guardian, if the
father claims custody or can she claim to be
the natural guardian in a different context,
until the father is dead, need not trouble
this Court, as the father is no more. Section
6 of the Act, last mentioned, provides:

"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--
382 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
(yatiorsanyasi).

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

19. At the same time, Section 13 of
the said Act emphasizes ''welfare' of the
minor to be of paramount consideration.
Section 13 is extracted infra:

"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."

20. A conjoint reading of Sections
6(a) and 13 leads to the inevitable
conclusion that welfare of the minor is
always the paramount consideration. In a
given case, the natural guardian may not be
found suitable where the welfare of the
minor appears to be best secured in some
other hands. But that said, the mother is
generally the best person to groom the
minor into a young and useful citizen. She
is also the best person to take care of the
minor's needs as he/ she grows up. There is
a presumption in favour of the parents that
they would secure the welfare of their
children best, and it is on the foot of that
presumption that both the parents have
been acknowledged to be a minor's natural
guardian, under Section 6(a) of the Hindu
Minority and Guardianship Act. There
could, of course, be disentitling factors in a
case that may work against the mother.
This reasoning was adopted to deprive the
mother of her right to custody by this Court
in Amit Beri and another vs. Smt.
Sheetal Beri wife of Amit Beri, AIR 2003
All 78. In that case, the mother was
deprived of the minor's custody because it
was found that she regularly attended night
clubs and came home late. During that
period, the minor was left in some care
house.

21. In the present case, there is no
positive
assertion
of
any
fact
or
circumstance to indicate that the mother is
disentitled to custody. No circumstance of
neglect has been cited, from which a
conclusion may be drawn that the minor's
welfare is not best secured in the mother's
hands. There is a general assertion about
the fact that the mother has remarried and
the first petitioner, the grandmother wants
this Court to infer ipso facto that her
remarriage and a son born of that marriage
would lead to the minor's neglect. There is
nothing said for a specific instance against
the mother's husband, or for that matter
against anyone else in the household that
may demonstrate neglect. The grandmother
wants this Court to presume or construct
neglect upon remarriage by the mother.
This Court is afraid that there is no such
principle that on a mother's remarriage,
neglect of her minor child begotten of her
first marriage is to be presumed or inferred
on a constructive basis.

22. This Court has spoken to the
minor and her mother, a fact earlier
recorded in this judgment. The minor, Km.
Shruti Singh is a bright child, all of nine
12 All. Smt. Sharada Devi & Anr. Vs. Man Singh & Ors.
383
years. She told the Court that she reads in
class IIIrd at the Geeta's School. She knows
her teacher. She conveyed to the Court that
she wants to stay with her mother. She
referred to Sunil Patel as 'Papa'. That
reference to Sunil Patel came with ease and
comfort. Upon the Court asking the minor
her father's name, she disclosed Sunil's
name. She conveyed to the Court that she
was happy to stay with her mother. To a
further question by this Court, if she wishes
to stay with her mother, she said an
unqualified 'Yes'. She also told the Court
that she did not know her grandmother and
said that she did not want to stay with her.
The Court is of opinion that the child is
well integrated into her mother's household
and is developing a balanced personality.
She appears to be receiving fairly good
education too. The mother told the Court
that she has remarried and stays with her
husband, along with his two brothers. She
said that her husband (the minor's father)
passed away in an accident. The minor had
stayed with her since she was born. Her
husband, Sunil Patel is a skilled worker,
who earns his livelihood by fixing tiles.
She said that she had no financial difficulty
and could bring up the minor. She could
fund and ensure her education. She said
that she had a young son, aged a year and a
half, begotten of Sunil Patel.

23. This Court does not find that there
is the slightest reason to believe that the
minor's interest or welfare would in any
manner suffer in the hands of her mother
while she stays in Sunil's home, where she
has rehabilitated herself after her husband's
death. This Court must note again that the
sole reason to doubt the mother's suitability
as a good guardian to the minor is the
grandmother's
apprehension
emanating
from the mother's remarriage. There are no
instances or facts positive cited to infer
neglect or compromised welfare for the
minor in her mother's home. The question,
whether
remarriage
of
the
mother
disentitles her or can lead to an inference
ipso facto that the minor's welfare would
not be secure in her hands, fell for
consideration of a Division Bench of the
Madras High Court in Sudha vs. State rep.
by
Superintendent
of
Police,
Nagapattinam District and others, 2015
SCC OnLine Mad 11442. In that case, the
paternal grandmother, like the present case,
had resisted the mother's claim to custody
of the minor, a girl whose father had passed
away, on ground that the mother had
remarried.
It
was
claimed
by
the
grandmother that on account of the
mother's remarriage, the minor's welfare
would not be best ensured in the mother's
hands. It was held by their Lordships in
Subha thus:

"15. Admittedly, the petitioner is
the mother and natural guardian of the
minor, Kaviyasri and the father of the
minor child is no more. The 13th
respondent is only the paternal grand
mother of the child. The only argument
advanced by the learned Senior counsel on
behalf of the paternal grand mother of the
child is that the petitioner, after the death of
her husband, father of the detenue, married
another person and therefore, giving
custody of the child to the mother would
not be in the interest and welfare of the
minor detenue.

16. After the death of her
husband, the petitioner was free, as per law,
to decide her second marriage, accordingly,
she married the aforesaid Mr. Suseendran.
It is the legal right of the petitioner, which
cannot be construed as an illegal act.
Merely because the petitioner married
another person, after the death of her
previous husband, she cannot be said
384 INDIAN LAW REPORTS ALLAHABAD SERIES
incompetent, to be the guardian of minor
child and seeking custody of the child.

17. Mr. C. Suseendran, who
married the petitioner has also filed an
affidavit stating that he is willing to take
care of the minor, Kaviyasri as a dutiful
father, if the custody is given to the
petitioner, mother of the minor and he
assured that he along with the petitioner
will take care of the welfare of the minor
child and extend all support to the
petitioner for the study and growth of the
alleged detenue, Kaviyasri. The affidavit
filed by the person, who subsequently
married
the
petitioner
would
also
strengthen the case of the petitioner. As
Government is also taking a policy to
encourage widows remarriage, holding the
view that the mother is not entitled to have
the custody, merely because she married
another persons would be improper and
against social justice.

18. In the instant case, the
petitioner is admittedly the mother and
natural guardian of the minor, Kaviyasri,
whose father is no more. Solemnizing
second marriage with another person after
the death of her earlier husband is not an
illegal or improper act. In the aforesaid
circumstances, we are of the view that the
claim
of
the
petitioner
is
legally
sustainable, when the claim is made by the
mother and natural guardian, seeking
custody and that there is no legal embargo
for the petitioner in seeking the custody and
further, the 13th respondent is not a
similarly placed person, seeking custody of
the child."

24. In the present case, this Court has
found on a detailed consideration of the
matter that the third respondent, the minor's
mother, Smt. Paramsheela and her husband,
Sunil Patel appear to provide a congenial
atmosphere to the minor, where she can be
expected to blossom and grow up into a
well groomed citizen. This Court has also
borne in mind the fact that the mother is
closer in her years to the minor than the
grandmother, and, therefore, better suited
to safeguard her welfare. The minor
appears to be comfortable with the mother's
husband, Sunil Patel. And above all, the
mother is the minor's natural guardian,
against whom this Court does not find any
disentitling
facts
established
by
the
grandmother. This Court may clarify that
the determination about custody made here
is summary. It is open to the grandmother,
the first petitioner to establish a better right
to custody, if so advised, before a Court of
competent jurisdiction under the Guardians
and Wards Act. If that course is adopted by
the first petitioner, nothing said here, will
affect the determination of parties' right by
that Court in accordance with law, and on
the basis of evidence led.

25. In the result, the rule nisi issued in
this case, cannot be made absolute. The
rule is discharged and this petition is
dismissed.

26. The first petitioner is the
grandmother of the minor. The minor's
grandfather is also there. The minor is their
deceased son's child. The grandparents
have a right to meet and interact with their
grand daughter. For the purpose, the
mother shall accompany the minor to the
grandparents abode and stay in town for
three days, twice a year. During this period,
the grandparents shall be freely permitted
to
interact
with
the
minor.
The
grandparents in turn shall make suitable
arrangement for the minor's mother to stay
with them in their house, extending due
courtesy to her. These two meetings with
the grandparents per year shall take place,
as far as possible, during the summer and
12 All. Aditay Divedi & Kumar Chhabi Divedi Vs. State of U.P. & Ors.
385
the winter break for the Schools. Of course,
it will be open to the parties to adjust the
schedule of these meetings, but not so as to
infringe the condition of the meeting
between the grandparents and the minor
taking place twice for three days each in
one calendar year. This arrangement for the
mother
taking
the
minor
to
her
grandparents has been made bearing in
mind the grandparents' seniority and age.
----------
(2020)12ILR A385
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2020

BEFORE

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

Habeas Corpus Writ Petition No. 443 of 2020

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

Counsel for the Petitioners:
Sri Shravan Kumar Mishra

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

Civil Law -Hindu Minority and Guardianship
Act (32 of 1956)- Section 13 - Guardians
and Wards Act (8 of 1890) , S.7 - Custody of
minor child - Habeas Corpus Petition -
Determination - Paramount consideration is
where the minor's welfare would be better
secured - In selecting a guardian, the court
is expected, to give due weight to a child's
ordinary
comfort,
contentment,
health,
education,
intellectual
development,
favourable surroundings, moral and ethical
values - If the minor is old enough to form
an intelligent preference, the court must
consider such preference as well - though
the final decision rest with court as to what
is conducive to the welfare of the minor -
Welfare of the child has to be determined
owing to the facts and circumstances of
each case and the Court cannot take a
pedantic approach (Para 8, 10 )

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

Writ Petition allowed. (E-5)

List of Cases cited:-

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

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

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

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

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

2. A rule nisi in the matter was issued
on 09.09.2020, ordering the two minors to
be produced on 16.09.2020. This Court
finding it to be a sensitive matter where the
two minors caught in a battle between their
parents, could be spared all that agony,
referred the parties to the Allahabad High
Court Mediation and Conciliation Center,