IN THE HIGH COURT OF JUDICATURE AT PATNA ------------ In the matter of an application Under Articles 226 and 227 of the Constitution of India. ----------- Criminal Writ Jurisdiction Case No.484 of 2011 ---------- Dr. Seema Kumari, W/o Late Dr. Shashi Shekhar and D/o Sri Rageshwar Prasad Sinha, Advocate at present Resident of Mohalla- Makhania Kuan Road, Patna, P.S. Pirbahore, District- Patna......................... Petitioner Versus 1. The State Of Bihar 2. The Senior Superintendent of Police, Patna. 3. Smt. Sujata Singh, W/o Dr. Basant Singh 4. Dr. Basant Singh, S/o Late Raghubir Singh, Both are resident of Mohalla- Golghar, P.S.Gandhi Maidan, District- Patna......................... Respondents -------- For the petitioner : Mr. Rajendra Prasad Singh, Sr. Advocate For the Respondent:-Mr. Rana Pratap Singh, Sr. Advocate For the State Mr. Manoj Kumar ambastha,G.P.14 Mr. Subodh Kumar,AC to G.P.14 ----------- P R E S E N T THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE SHIVAJI PANDEY ---------- Shiva Kirti Singh,J Petitioner has preferred this criminal writ petition seeking writ of habeas corpus for release of her minor son presently aged about one and half years from alleged illegal detention of respondent nos.3 and 4 who are her mother-in-law and father-in- 2 law. She has also prayed for being handed over the physical custody of the minor son to her forthwith. 2. The writ petition is founded on the following facts which are not much in dispute. The petitioner was married on 20th February, 2009 with Late Dr. Shashi Shekhar son of respondent nos. 3 and 4. A male child was born out of this marriage on 7th March, 2010 in the Nursing Home of a doctor at Patna. Her husband was admitted in post graduate course in Medical College, Dharan, Nepal. She joined post graduate course in Medicine at a Medical College at Katihar on 24th July 2010. She is continuing her studies at Katihar and the duration of the course is of three years. 3. In the writ petition details have been given of an unfortunate incident in the night of 3/4-12-2010 when allegedly petitioner was assaulted by her husband when she declined to go with him to Dharan, Nepal for a few days. The husband had come to Katihar and stayed in the Hostel room allotted to the petitioner. The petitioner was admitted for treatment of her injuries in the night. The husband of petitioner visited her in the emergency ward of Katihar Medical College and after sometime when his request to discharge the petitioner was not accepted, he went back in the room 3 of the petitioner in the morning of 4-12-2010 and locked the room from inside. On information by the College administration the local police came to the room. The room was allegedly locked from inside. From the window it was seen that husband of the petitioner was hanging by a rope tied to the hook of ceiling fan and thereby he had committed suicide. According to respondents no. 3 and 4, however, the death was due to some foul play. 4. A case of un-natural death was registered by the police on 4-12-2010. The petitioner was discharged from hospital on 6-12- 2010. On 8-12-2010 respondent no.4 lodged an F.I.R. leading to Katihar ( Mufassil ) P.S. Case No. 105 of 2010 under section 306/34 of the Indian Penal Code against the petitioner and her family members with an allegation that on account of threat and torture by the accused persons the occurrence leading to death of her son had taken place. 5. In the counter affidavit filed on behalf of respondents 3 and 4 a plea has been taken that the writ petition for habeas corpus is not maintainable because the respondents are in lawful custody of the child since his birth. For this reliance has been placed upon Fardbeyan of the petitioner recorded on 4-12-2010 in connection with the U.D. case (Annexure-D) which contains a statement to 4 the effect that petitioner and her deceased husband have a son aged about 8 months who lives with his grand-father and grand-mother at Patna. In the counter-affidavit it has been highlighted that the minor boy is being brought up and looked after by the respondents 3 and 4 since his birth. A transcript of talk allegedly dated 18th September, 2010 between petitioner and one doctor has been annexed as annexure-A in support of an allegation that petitioner was having extra marital relation with a doctor friend. It has been alleged that the claim for custody of the child is mala fide and the child may be killed and petitioner may enter into another marriage. It has further been submitted that petitioner is still studying in Katihar with two years still remaining to complete her course and that the busy syllabus of the course requires her engagement in hospital round the clock which will leave no time for the petitioner to look after the child. Annexure-E contains copies of the medical reports to show that the child has a heart condition known as S.V.T. An Out-door ticket of Indira Gandhi Heart Diseases Institute, Patna dated 11th February, 2011 shows that the disease causes restlessness and if there is a temporary relapse then immediately the child has to be brought to emergency for D.C. Cardio-version. The respondents live in their own house at Patna where they can look- 5 after the grand-son who is the only solace in their life after the death of their son in mysterious circumstances. It has been claimed that substantial money has been deposited in favour of the child. 6. There are materials on record brought by the petitioner through reply to show that she has filed a complaint petition against respondents 3 and 4 and their family members under sections 498 (A), 323, 325, 307, 379,406,504,364, 120 (B ) of the Indian Penal Code and section ¾ of the Dowry Prohibition Act on 30-12-2010 leading to complaint case no. 3352 ( C ) of 2010 pending in the court of Sub-divisional Judicial Magistrate, Patna. The allegations, inter alia, are to the effect that after the Shradh of her husband at Patna on 9th December, 2010 the accused persons snatched petitioner’s minor son from her and attempted to kill her, deprived her of jewellery and other belongings and forced her out of the house. 7. Although lengthy arguments were advanced on behalf of respondents 3 and 4 alleging that their son was killed under a conspiracy hatched by the petitioner in her hostel room at Katihar Medical College and Hospital, but admittedly, the investigation into U.D. case No. 9 of 2010, which has now been merged with Katihar ( Muffasil ) P.S. Case No. 105 of 2010 is still pending and 6 this Court has no hesitation in holding that it will not be proper for this Court at this stage to make any comments in respect of the said criminal case or in respect of the subsequent complaint case filed by the petitioner. Any observation in this judgment is only for the purpose of deciding the habeas corpus petition and shall have no effect on the on going investigation or out-come of the criminal cases. 8. The law on the issue of guardianship and custody of a minor is no longer res integra. So far as claim for guardianship over the custody or property of a minor is concerned, the same is required to be decided by a competent Civil Court or Family Court in accordance with provisions such as section 6(a) read with section 13 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Guardianship Act ) as well as under the provisions of Guardians and Wards Act,1890 which is to supplement the Guardianship Act as provided in section 2 thereof. It is also well established that welfare of child is of paramount consideration while determining issue relating to child custody and visitation rights. In the case of Gaurav Nagpal Vrs. Sumedha Nagpal, (2009) 1 SCC 42, the Apex Court noticed sections 13 and 6 of the Guardianship Act to reiterate the aforesaid principle. It 7 was highlighted that when conflicting demands are made by the parties for custody, a mature humane approach is required to be taken by the Court because the purpose is not merely physical custody of the minor but due protection of the rights of his health, morals, maintenance and education. In paragraphs-49 to 51 of the Judgment, the Apex Court has made it explicit that claim of a natural guardian by virtue of section 6 of the Guardianship Act cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. The provisions of special statutes governing the rights of the parents or guardians are to be taken into consideration but nothing can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. Ultimately, the court, in the aforementioned case allowed mother to have the custody of the child in preference to claim of the father in view of peculiar facts of the case. 9. On behalf of petitioner the main and principal reliance is on section 6 of the Guardianship Act which declares mother of a minor to be a natural guardian and allows preferential treatment even against father if the child is less than five years of age. In view of such statutory provision, a large number of cases decided in favour of the claim of a mother for custody of minor child were cited at the 8 bar. Majority of those cases arose out of proceedings under the Guardianship Act or under the Hindu Marriage Act and in the peculiar facts of those cases the issue relating to guardianship and custody were decided in favour of one or the other parties. However, the principle of law noticed at the beginning that paramount consideration is the welfare of the child was never in doubt and has always remained guiding principle. 10. In A.I.R. 1990 Supreme Court 1156 (Manju Tiwari Vrs. Rajendra Tiwari) the court passed a very short order to hand-over custody of a child less than five years of age to the appellant- mother in view of facts and circumstances which did not require even any mention. In the case of Chandra Kant Vrs. Superintendent of Police, 2000 Cr.L .Journal 3138, custody was given to the mother in preference to grand-father . In that case the Court found no ground for accepting the submission that it was not in the welfare of the child to be put in the custody of mother. In the case of Mohini Vrs. Virendra Kumar, AIR. 1977 SC 1359, counsels played a major role in bringing about a solution under which custody of a 11 years old child was given to mother in preference to father although the latter had a better statutory claim to be the natural guardian. This was done with deepest consideration for the 9 welfare of the child as mentioned in the very first paragraph of the judgment. In the case of Surinder Kaur Sandhu Vrs. Harbax Singh Sandu, ( (1984) 3 SCC 698, custody of a minor boy above five years of age was given to the mother on account of a judgment by an English Court in favour of the mother as well as welfare of the minor. In that case the father had been convicted on a criminal charge. Considering this aspect and the fact that mother was employed and having her own income, custody was given to mother notwithstanding section 6 of the Guardianship Act. In the case of Gohar Begum Vrs. Suggi ( AIR 1960 SC 93), custody of a illegitimate minor daughter was given to the mother on account of a conclusion in paragraph-9 that the interest of the child would be better served if she was left in the custody of the appellant- mother compared to the custody of the respondent who was appellant’s mother’s sister. In the case of ( 1987 ) 1 SCC 42, the mother was given custody of a 9 years old male child in view of an order of an American Court and upon a finding that no serious harm would come to the child on account of such custody. 11. In the case of Poonam Datta Vrs. Krishnlal Datta, AIR 1989, SC 401, the mother of a child less than five years of age was allowed to have custody in the facts and circumstances of that case. 10 In the case of Sarita Sharma Vrs. Sushil Sharma, AIR 2000 SC 1019 the father was denied custody in spite of an order of an American Court on account of consideration for the welfare of minor children because the court found that the father was in the habit of consuming excessive alcohol and in his house there was only his 80 years old mother who could not be expected to take good care of the children. Similar views have been taken by the Delhi High Court in the case of Chandra Prabha Vrs. Premnath, AIR 1969 Delhi 283 and by the Punjab and Haryana High Court in the case of Sarabjit Vrs. Piaralal, AIR 2005 P. & H 237. In both the cases children below five years of age were placed in the custody of mother on account of statutory provisions and concern for the welfare of the child in the facts and circumstances of those cases. 12. Replying to the aforesaid legal stand on behalf of petitioner, learned counsel for respondents 3 and 4 has placed reliance upon the judgment of the Supreme Court in the case of Sumedha Nagpal Vrs. State of Delhi, (2000 ) 9 SCC 745. In that case the Supreme Court considered the plea of the father of a minor child of 2 years of age that the mother had abandoned the child and did not interfere with the custody of the father in spite of noticing 11 the proviso to section 6(a) of the Guardianship Act. The court held that the writ proceeding being of summary nature, it was not possible to reach a proper decision as there were disputed questions of facts involved. The parties were directed to settle their rights under the Guardians and Wards Act 1890 or to seek matrimonial relief. The court after noticing section 6 of the Guardianship Act constituting exclusive guardianship in the mother, in paragraph-5 held that there was no clinching material to show that the welfare of the minor child is at peril and calls for interference with the custody. The court held that “ the trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind”. The law settled by the Supreme Court in the case of Gaurav Nagpal (supra ) has already been discussed earlier. It was highlighted on behalf of contesting respondents that in view of law settled in that case, no absolute right to the custody of the minor child lies with the mother and the paramount consideration for the court is to find out the welfare of the child. 13. Similar view, as noticed above, has been taken by the Supreme Court in the case of Veena Kapoor Vrs. Varinder Kumar Kapoor, (1981) 3 SCC 1992 and in the case of Mausmi Moitra 12 Ganguli Vrs. Jayant Ganguli (2008) 7 SCC 673. In the latter case, in the context of Sections 7 and 17 it was held that in so far as factual aspects of such cases are concerned, precedents are not binding . It was emphasized that financial condition of the parties or the statutory presumption cannot be the sole determining factor and “a heavy duty is cast on the court to exercise its judicial discretion judiciously in the back-ground of the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.” 14. A strong reliance was placed by learned counsel for the contesting respondents upon judgment of the Apex Court in the case of Kirtikumar Maheshankar Joshi Vrs. Pradipkumar Karunashankar Joshi, A.I.R. 1992 SC 1447. In this case custody was denied to the father and given to the maternal uncle because the father was facing charge under section 498-A of the Indian penal Code and the children were not willing to live with their father. Similar view of Patna High Court in the case of Bimla Devi Vrs. Subhash Chandra Yadav, A.I.R. 1992 Patna 96 was also strongly relied upon. In this case while considering the appeal preferred by maternal grand-mother under the Guardians and Wards Act, this Court appointed the maternal grand-mother as 13 guardian of three minor girls while rejecting the claim of father since he was alleged to have murdered his wife. In this case reliance was placed upon Section 13 of the Guardians and Wards Act and several judgments including that in the case of Elizabeth Dinshaw ( supra ) for the proposition that in matters of custody of minor, welfare of minor is of paramount consideration. The court noticed the submission on behalf of the father that after investigation the police did not find the allegation to be true, but relied upon the fact that the mother of the minor children had died after having received burn injuries and allegation of murder was levelled against the father. It was observed that the question whether the death was suicidal, accidental or an act of murder, was not the subject matter of proceeding but the allegation itself was enough to require careful consideration. The Court held that fear in the mind of the minor girls, living with the father who had allegedly killed their mother, was a relevant circumstance for not changing the custody of the girls who were being brought up by the maternal grand-mother. 15. There is no difficulty in accepting the legal contention advanced on behalf of contesting respondents that in the matter of custody of a minor child the statutory provisions in favour of the 14 mother is only one of the circumstances requiring consideration but the major concern of the court has to be the welfare of the child. The welfare, as explained in various judgments include not only physical welfare but also moral and ethical welfare. On facts, however, it is indeed a difficult task to find-out whether the welfare of the child requires grant of custody to the petitioner who is the mother or to allow the custody to remain with the grand-mother and grand-father. In this context it would be relevant to notice two recent judgments of the Supreme Court. In the case of Anjali Kapoor Vrs. Rajv Baijal, AIR 2009 SC 2821, the contest was between father and maternal grand-mother. Like in the present case, the child was an infant. Her mother died at the time of delivering the baby. The infant was brought to the residence of the grand-father and grand mother but unfortunately the grand-father also died within a short period of about two months but the grand- mother continued to take care of the minor child. The High Court allowed the case of the father but the Supreme Court gave custody to the grand-mother. The court relied upon the American Jurisprudence, 2nd Edition, Vol. 39 for the proposition that the custody of a child is addressed to the discretion of the court, and it may be withheld from the parent by reason of unfitness for the trust 15 or of other sufficient causes if it appears that permanent interests of the child would be sacrificed a change of custody. The court also noticed judgment of the New Zealand Court in the case of Walker Vrs. Walker & Harrison, 1981, New Ze Recent Law 257, for the proposition that while material considerations are important, more important are the stability and security, the loving and understanding care and guidance. The court looked into the photographs produced by the grand-mother and found that she had considerable amount of care, affection and love for the child of her only daughter who died in tragic circumstances. The Court also went into the strong emotional bonding between the maternal grand-daughter and the grand-mother who was financially sound. On the other hand, the father was found to have a meagre income and his lack of concern for the child was noticed along with the fact that the father had got married for a second time and was having a child from that lady also. Hence, the alternative of sending the minor child to the care of step-mother did not find favour and the court allowed custody of the child in favour of the grand-mother. In paragraph-21 of the judgment it has been noticed that the child had remained with the grand-mother for a long time and was growing up well in an atmosphere conducive to its growth 16 and hence it may not be proper at this stage for changing the environment to which the child has become used to. In the case of Athar Hussain Vrs. Syed Siraj Ahmad, A.I.R. 2010 SC 1417 the dispute related to interim custody of two minor children in a proceeding under the Guardians and Wards Act. The appellant- father had married second time and the children were in the custody of their maternal aunt and uncles. It was held that although the second marriage of the father was not a disentitling factor but it was an important factor. The court pointed out that guardianship and custody are two distinct issues. Father was found fit to be guardian and was allowed to continue as such but was denied custody. In paragraphs 37 and 38 of this judgment the court noticed two earlier judgments reported in AIR 2001 SC 1056, R.V. Srinath Prasad Vrs. Nandamuri Jayakrishna and others and in the case of Mausmi Moitra Ganguli Vrs. Jayant Ganguli (supra) for coming to the conclusion that in proceedings relating to interim custody the court is required to determine whether there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect. The court ultimately rejected the claim of the father for custody. 16. The task of judging the claim of petitioner for custody as 17 a mother vis-à-vis that of grand-father and grand-mother of the minor child is indeed delicate as well as tough. On the one hand the petitioner as a mother is bound to have natural affection and yearning for her minor child and the law also recognizes her as a natural guardian. On the other hand, respondents 3 and 4 are unfortunate father and mother whose son, who was already a doctor has met tragic unnatural death- be it on account of suicide or on account of foul play. They were entrusted with the custody of the child soon after his birth because the petitioner had to pursue her Post Graduate course in medicine in a hospital at Katihar where she stays in a hostel room all by herself. Post-graduate course in medicine requires hard work and devotion of time as well as energy while the grand-parents are living in their own house and are in a position to take care of the health of the child, which is shown to be of some concern on account of a heart condition which is of course, not fatal but may require emergent attention as well as other material needs. There is no dispute that the grand-father is a successful doctor and has sufficient financial source to take care of the material needs of the child. Further, the grand-mother who has been looking after the minor child since his birth is bound to have developed strong emotional bonds specially when she has lost 18 a grown up son and the child is his only living memory. On the other hand, the petitioner is yet to settle down in life and has to undergo two more years of study in